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Alternative Dispute Alternative Dispute Resolution: MediationResolution: Mediation

Fiona AK CampbellFiona AK CampbellFiona.Campbell@griffith.eFiona.Campbell@griffith.e

du.audu.au

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An Approach to Conflict An Approach to Conflict ……• Not a mere brawl or struggle – Not a mere brawl or struggle – but a disagreement or opposition but a disagreement or opposition of interests or ideas.of interests or ideas.

• A dispute over ‘facts’ A dispute over ‘facts’ ‘perception’ ‘values’ ‘goals’ ‘perception’ ‘values’ ‘goals’ ‘interests’.‘interests’.

• ADR – move away for ‘use’ vs ADR – move away for ‘use’ vs ‘them’ – to taking an interest-‘them’ – to taking an interest-based approach to resolutionbased approach to resolution

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Alternative Dispute Alternative Dispute ResolutionResolution• A process in which an impartial person (ADR A process in which an impartial person (ADR practitioner or mediator) assists those in the practitioner or mediator) assists those in the dispute to resolve issuesdispute to resolve issues

• ‘‘Viewed’ as an alternative to going to court, Viewed’ as an alternative to going to court, more efficient and cost effective (and healthy)more efficient and cost effective (and healthy)

• Mediation and dispute resolution is multi-Mediation and dispute resolution is multi-disciplinary- a complementary styledisciplinary- a complementary style– Lawyers desire it – economic reasonsLawyers desire it – economic reasons– Community services sector – empower disadvantaged Community services sector – empower disadvantaged people and social justicepeople and social justice

– Community conferencing – restorative justice (justice)Community conferencing – restorative justice (justice)• Parties deal with a conflict through the power Parties deal with a conflict through the power of their own decision-makingof their own decision-making

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Different ContextsDifferent Contexts– compensation / negligence disputescompensation / negligence disputes– Commercial disputesCommercial disputes– Residential parenting/Child supportResidential parenting/Child support– Property disputesProperty disputes– Neighbourhood disputesNeighbourhood disputes– Environmental issues and disputesEnvironmental issues and disputes– Community conferencing – Restorative justiceCommunity conferencing – Restorative justice– Workplace disputes, including education institutionsWorkplace disputes, including education institutions– Peer mediation Peer mediation – Building TribunalBuilding Tribunal– Body Corporate disputesBody Corporate disputes Less formal contexts:Less formal contexts:

• Customer relationsCustomer relations• ManagementManagement• Family issuesFamily issues

– Situated within the larger context of peace movementSituated within the larger context of peace movement– Community developmentCommunity development– International contexts and developmentInternational contexts and development

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Types of ADRTypes of ADR• FACILITATIVEFACILITATIVEThe ADR practitioner assists the parties to identify The ADR practitioner assists the parties to identify

the disputed issues, develop options, consider the disputed issues, develop options, consider alternatives and attempt to reach agreementalternatives and attempt to reach agreement

ExamplesExamples: mediation, facilitation or facilitated : mediation, facilitation or facilitated negotiationnegotiation

• DETERMINATIVEDETERMINATIVEThe ADR practitioner and evaluates the dispute The ADR practitioner and evaluates the dispute

and makes a determination.and makes a determination.ExamplesExamples: arbitration, expert determination and : arbitration, expert determination and

private judging.private judging.

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Role of the MediatorRole of the Mediator• Opener of communication channelsOpener of communication channels• Process facilitatorProcess facilitator• TrainerTrainer• Resource expanderResource expander• Problem explorerProblem explorer• Agent of realityAgent of reality• ScapegoatScapegoat• LeaderLeader

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Functions of mediatorsFunctions of mediators• Facilitator – impartial, positive, create Facilitator – impartial, positive, create

constructive environment, use guidelinesconstructive environment, use guidelines• Educator – know background, dynamics and context of Educator – know background, dynamics and context of

the conflictthe conflict• Translator – clarify, interpret and convey the Translator – clarify, interpret and convey the

information faithful to party objectives and in a information faithful to party objectives and in a way that promotes receptivityway that promotes receptivity

• Problem explorer – assist with creative idea Problem explorer – assist with creative idea generationgeneration

• Resource person – information and other servicesResource person – information and other services• Support person – for emotional needs and create Support person – for emotional needs and create

context so conflict is not escalatedcontext so conflict is not escalated• Agent of reality – inform of different perceptions Agent of reality – inform of different perceptions

and solutions availableand solutions available• Scapegoat – focus of blame for any agreed settlementScapegoat – focus of blame for any agreed settlement

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Qualities and skills of Qualities and skills of a mediatora mediator• ImpartialityImpartiality• Good listenerGood listener• Create trustCreate trust• Self reflexivitySelf reflexivity• FlexibilityFlexibility• Persuasive skillsPersuasive skills• Inventiveness in problem solvingInventiveness in problem solving• ‘‘management interactionmanagement interaction• Psycho-social /human services knowledgePsycho-social /human services knowledge• professionalismprofessionalism

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Mediation ‘Roadmap’Mediation ‘Roadmap’1.1. Introduction: establishing frameworks Introduction: establishing frameworks

& parameters& parameters2.2. StorytellingStorytelling3.3. Identifying disputants interestsIdentifying disputants interests4.4. Discerning the issuesDiscerning the issues5.5. Generating option selection optionsGenerating option selection options6.6. Agreement (BATNA – best and Agreement (BATNA – best and

alternative to negotiated settlement)alternative to negotiated settlement)7.7. Closing/TerminationClosing/Termination

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Generating optionsGenerating options• Searching for optionsSearching for options• Creating and reviewing optionsCreating and reviewing options• Option criteriaOption criteria• BrainstormBrainstorm• Reality testingReality testing• Mediator’s roleMediator’s role• Breaking the Impasse – BATNAs and Breaking the Impasse – BATNAs and WATNAsWATNAs

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Option Criteria - FYIOption Criteria - FYI• Do they meet the wants and needs of the Do they meet the wants and needs of the

parties?parties?• Are the other parties likely to be affected Are the other parties likely to be affected

by the options generated? How might they by the options generated? How might they react?react?

• Have the options been tried before? What Have the options been tried before? What was the outcome?was the outcome?

• Do the options consider the socio-economic Do the options consider the socio-economic position of the parties and others?position of the parties and others?

• Is there legal procedures / documents to Is there legal procedures / documents to complete?complete?

• Can options be modified? How?Can options be modified? How?

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DrawbacksDrawbacks• Issues around mediator training?Issues around mediator training?• Depends on parties skills and commitmentDepends on parties skills and commitment• Needs to be voluntary …becoming an Needs to be voluntary …becoming an enforced ‘option’enforced ‘option’

• Reliability issues, disclosures, Reliability issues, disclosures, information gathering issues – information gathering issues – litigation stricter standardslitigation stricter standards

• Power imbalances – verbal, intellectual, Power imbalances – verbal, intellectual, emotional, financialemotional, financial

• Driven by the skill and energy of one Driven by the skill and energy of one person (mediator) person (mediator)

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Advantages of mediationAdvantages of mediation• Educative processEducative process• Model for conflict managementModel for conflict management• Flexible and not adversarial where the Flexible and not adversarial where the

disputants have active roledisputants have active role• Emphasises a ‘win-win’ approachEmphasises a ‘win-win’ approach• Enhances compliance with agreementEnhances compliance with agreement• Less threatening – not a legal problem, stays Less threatening – not a legal problem, stays

a business problema business problem• Relieves the overburdened court system - Relieves the overburdened court system -

Cheaper alternative to litigationCheaper alternative to litigation• Public savings, e.g. parties pay for the Public savings, e.g. parties pay for the

mediator, not the taxpayermediator, not the taxpayer• Self-empowering – parties retain controlSelf-empowering – parties retain control• Remains private and confidential Remains private and confidential