Alternative Dispute Resolution (ADR)
VA Mediator Checklist
INTRODUCTION TO MEDIATION CHECKLIST
Explain mediation: Problem-solving process, chance to resolve issues on your own. "We are here to help you work out an understanding acceptable to each of you." Mediators do not make the decision for the Parties. It is the Parties who reach agreement or do not reach agreement. The mediator merely assists them in this process.
Voluntary: You can leave at any time, and you do not lose any other rights. Our only expectations: good faith, listen to each other.
Mediators' role: Neutrals, not judges; we do not decide or make recommendations. [We are federal employees, but not part of your organization].
Confidentiality: Anything that you tell us in confidence, stays confidential with us. We hope that each of the Parties can agree not to discuss the conversations heard here with persons who are not involved with this mediation. We take notes, but destroy them after the mediation.
Explain joint and private sessions: We will begin by asking each of you to explain to us Mediators and each other how you view things. After that, we will identify the basic areas of disagreement. Then we will work together to examine the issues and talk about possible solutions. We will do these things in joint and private sessions, depending on what we as the Mediators believe will be most beneficial. There is little reason why we begin with a particular person, so don’t read anything into our choice. Anything one of the Parties asks us to keep confidential in a private session, we will keep private. We want you to feel comfortable speaking frankly and want to assure you that we will keep private any discussions you wish to keep confidential.
Breaks: Just let us know if you would like to take a break, to get coffee, calm down, etc. We will be taking breaks we also encourage you to suggest a break if you want one.
Attorneys: Welcome them (if present). Note informality, but invite them to talk as their client wishes. If attorney/s are not present: consultation may be appropriate.
Outcome: Goal is a written agreement signed by both Parties that will eliminate any need to go further in court.
Ground rules: Courtesy, no interruptions.
Agreement to mediate: Review and have Parties sign.
Settlement Agreement: Mediator writes and reviews with Parties, preferably at the end of the mediation session. Mediator has Parties sign.
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A SAMPLE INTRODUCTION
It' s good to see the two of you here. I'm (Mediator’s Name) and this is (Mediator’s Name). We will be serving as your Mediators. You may call us by our first names; how would you like us to address you?
The purpose of our meeting is to help you work out an understanding acceptable to both of you to resolve the situation that has been developing for you.
First, we would like to explain how we will proceed, so you know what is happening next. We will begin by asking each of you to explain to us as Mediators exactly how you view things. We will do our best to understand exactly how it looks from your shoes. After that, we will identify and agree on what the basic issues of disagreement are. Then we will work together with you in examining exactly what you want of each other and what some possible solutions might be. Our goal is to help you find a solution that both of you feel comfortable with.
We would like you to understand what our role is here.
Our goal is to help You figure out Your own solution to Your problems. You are the ones who will be living with your solution from here on, so we want you to be the ones who decide what the solution will be. We won't be telling you what to do or trying to judge who is right or wrong. We are much more interested in helping you to think about solutions for the future than in trying to judge what happened in the past. Mainly we are interested in helping to talk about a solution that both of you can live with. We want to assure you that anything that you may say during our session is confidential. We will be taking notes from time to time so that we can remember things, but when we finish, we will destroy our notes.
Either of you may ask to take a break at anytime during our discussion. For example, if you feel yourself getting really upset at any time and feel that you really need to take a break to simmer down a little, let us know, and we will take a little time out. You can step outside for a few minutes if you wish, but we will ask you to let us know what is happening and then to return when you are ready to continue. Sometimes it is helpful for us as Mediators to meet separately with each of you during our discussion, so we may be doing that occasionally as well.
It is necessary for this process for each of you to sign this written agreement to mediate. If you would just look it over, please. It basically says that you have come of your own accord, that what you say here will be kept confidential, and that the Mediators will not be asked to release information discussed here, nor will they be summoned into court to testify on matters disclosed here.
Last of all, we would like to discuss ground rules a bit.
We ask each of you to agree not to interrupt when the other person is speaking. We have placed paper and pencil here on the table so that you can keep notes about any responses to make. We also would like for you to agree to avoid the use of any abusive language, name calling, etc. These rules are especially important in the next part of our discussion here. (Address each Party by name and ask) (Name), can you agree. . .
Moving into the "The Story-Telling Stage'':
We'd like to begin now with hearing each of you explain your perspective on this situation. is it all right with you if we begin with (Name of Complainant), since he/she initiated the mediation? We will hear from you (Name of Responding Party) when he/she is finished. In case there are things you disagree with as (Name of Complainant) speaks, make note of them and explain your perspective on them when it is your turn. (Name of Complainant), you can go ahead and begin.
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ACTIVE LISTENING FOR MEDIATORS
I. PAYING ATTENTION TO THE SPEAKER ("ATTENDING"):
1. Look at the speaker. Keep the other persons in view so you can observe their reactions, but generally maintain eye contact with the speaker.
2. Show that you're interested in what he/she is saying. Encourage by unobtrusive use of "yes," "I see," "um hum." Use positive body cues at appropriate points -- nods, smiles, note-taking, furrowed brow, etc.
3. Most of the time, lean slightly toward the speaker. Keep an open, relaxed posture. Keep your physical movement to a minimum.
4. Engage the speaker by looking for opportunities to subtly mirror his/her cues. Do not mimic, but do look for ways to be CONGRUENT. For example, if he/she speaks slowly, match his/her cadence.
5. Draw the speaker out. Say something like, "I'd like to hear a little more about [subject]."
6. Try to listen for what is NOT being said -- what's missing that you might expect to hear in the circumstances?
7. Observe HOW things are said -- the emotions and attitudes behind the words may be more important than what is actually said. Look beyond the mere words the speaker uses -- remember that much information is displayed in voice intonation and body language.
8. Say little yourself! You can't listen while you're talking.
9. Show that you're listening and interested by asking QUESTIONS and FEEDING BACK, REFRAMING and SUMMARIZING. However, particularly in early stages, be careful not to interrupt the speaker's flow.
II. ASKING QUESTIONS:
1. Questions serve three basic purposes:
• to show you're listening (especially in the early, trust-building stage);
• to gather and organize information (particularly in the problem-solving stage); and
• to express in question form what otherwise might be an academic statement -- for example, to test reality (most often in problem-solving and closure stages).
2. Generally, questions should be open-ended, not closed-ended. Closed-ended questions can be answered "yes" or "no," or with a specific answer like "two" or "January." They may encourage the answerer to stop talking. Open-ended questions cannot be answered so simply, and encourage the speaker to talk and explain in complete sentences. Open-ended questions are good because they invite a person to open up and tell his/her story. Examples of open-ended questions: "Tell me more about [subject]," "what happened next," "how did you feel when that happened," "what would you like to see as an outcome." Use close-ended questions exceptionally -- only to increase control over the flow of information or to confirm certain important facts.
III. FEEDING BACK, REFRAMING, AND SUMMARIZING:
1. When the speaker pauses, there's an opportunity to confirm that you've been listening and that you understand by FEEDING BACK what you've heard/observed to the speaker. It also is a way to check that your perception of what you think you heard/observed is accurate, as well as a way to validate for the speaker what he/she is feeling.
2. To feedback, repeat or paraphrase what the speaker has said (or displayed as unspoken feelings). Examples: "so, when that incident happened, you felt like . . .", "it sounds like an important issue for you is how to deal with . . .", "what I think I'm hearing is that you really need to. . . .", "I can see that you have strong feelings about that." Pause expectantly to let the speaker react. Common signs that you've done it right: the speaker will nod vigorously and/or respond, "yes, and . . . ."
3. Sometimes, repeating the last couple of words of a speaker will encourage him/her to go on, but you generally do not want to repeat verbatim what the speaker said -- you may sound like a mimic! Paraphrase instead. However, DO be conscious of particular words that seem important to the speaker and use them, if appropriate, in your paraphrasing.
4. REFRAMING is a special way of feeding back, and is one of the Mediator's most important tools. It is restating what a party has said to capture the essence, remove negative overtones, and move the process forward. Reframing also is a way to translate a positional statement into a statement of interests or needs. Example: a separated spouse says angrily, "He's so irresponsible that I never can depend on him to pick our child up on schedule." Simple feedback might be, "so it really bothers you if he isn't on time to pick up Johnny" -- while a reframed response might be, "so a regular schedule is important for you and Johnny." Either response may be appropriate, and the difference is subtle; the first might be better at an early point in trust-building, while the second might be better later, during problem-solving.
5. Summaries are part of most feedback, but sometimes you want to focus particularly on a summary. At major transitions, such as after one Party has told his/her story and before you turn to the other Party, do an overall summary of major points, and ask for confirmation.
6. Generally use neutral language. Example: one Party says the other was "hysterical." In feeding back, you might say the Party was "crying." A "liar" becomes a person who "disagreed" or "sees differently." Be careful not to get so pretentious that the Party feels you've misrepresented their point of view.
IV. MANAGING THE FLOW OF COMMUNICATION:
1. Stick to the speaker's subject. You may want to go to something else, but give the speaker time to finish.
2. Don't be too quick to try to move on when the speaker repeats things. Remember, repetition may indicate: (a) that the subject is very important to the speaker, and (b) that the speaker needs to feel that you've really heard him/her on the subject. This is a cue that you need to feedback what the speaker is saying.
3. If repetition does go on too long you can try saying something like, "Well, it's clear to me that [subject] is very important to you. Is there anything else that's also important for us to understand?"
4. Be comfortable with silence. Usually, one of the Parties will speak up soon enough. Use silent cues -- pauses, turning to another Party expectantly.
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HOW TO OVERCOME IMPASSE
As negotiations proceed, Parties sometimes reach an impasse -- often not due to overt conflict, but rather due to resistance to workable solutions or simply exhaustion of creativity. While the impasse might signal that the dispute is unresolvable in mediation, the mediator may believe that a workable agreement is still possible. Below are some techniques to get negotiations moving.
Always remember: The goal isn't to overcome impasse per se, but to help the Parties analyze and negotiate constructively. The Parties are free to stick with a position -- there may be a legitimate reason for impasse, and it's not your job to pressure the Parties into a settlement!
1. Take a break. Often, things have a way of looking different when you return.
2. Ask the Parties if they agree to set the issue aside temporarily and go on to something else - preferably an easier issue.
3. Ask the Parties to explain their perspectives on why they appear to be at an impasse. Sometimes, the Parties need to feel and focus consciously on their deadlock.
4. Ask the Parties, "what would you like to do next?" and pause expectantly. Or, say "frankly, it looks like we're really stuck on this issue. What do you think we should do?" These questions help the Parties actively share the burden of the impasse.
5. Ask each Party to describe his/her fears (but don't appear condescending and don't make them defensive).
6. Try a global summary of both Parties' sides and what they've said so far, "telescoping" the case so that the Parties can see the part they're stuck on in overall context. Sometimes, the impasse issue will then seem less important.
7. Restate all the areas they have agreed to so far, praise them for their work and accomplishments, and validate that they've come a long way. Then, ask something like: "do you want to let all that get away from you?"
8. Ask the Parties to focus on the ideal future; for example, ask each: "where would you like to be [concerning the matter in impasse] a year from now?" Follow the answers with questions about how they might get there.
9. Suggest a trial period or plan; e.g., "sometimes, folks will agree to try an approach for six months and then meet again to discuss how it's working."
10. Help the Parties define what they need by developing criteria for an acceptable outcome. Say: "before we focus on the outcome itself, would you like to try to define the qualities that any good outcome should have? "
11. Be a catalyst. Offer a "what if" that is only marginally realistic or even a little wild, just to see if the Parties' reactions gets them unstuck.
12. Offer a model. Say: "sometimes, we see Parties to this kind of dispute agree to something like the following . . . ."
13. Try role-reversal. Say: "if you were [the other Party], why do you think your proposal wouldn't be workable?" or "if you were [the other Party], why would you accept your proposal?"
14. Another role-reversal technique is to ask each Party to briefly assume the other's role and then react to the impasse issue. You also can ask each Party to be a "devil’s advocate" and argue against their own position.
15. Ask the Parties if they would like to try an exercise to ensure they understand each other's position before mediation ends. Ask Party A to state his/her position and why, ask Party B to repeat what B heard, and then ask A if B's repetition is accurate. Repeat for B. Listen and look for opportunities to clarify.
16. Ask: "what would you be willing to offer if [the other Party] agreed to accept your proposal?"
17. Use reality-checking. For example, "what do you think will happen if this goes to court?" Draw out the emotional, financial, and other costs of litigation and delay.
18. If all else fails, suggest (or threaten) ending the mediation. Parties who have invested in the mediation often won't want it to fail, and may suddenly come unstuck. This approach is useful where one Party may be hanging on because he/she enjoys the attention the process provides, or enjoys the other Party's discomfort.
For the Complainant:
Explain mediation.
Who do you think should be at the mediation session?
Do you have any written material you think the mediators should see before the mediation session. If they are long or complex and would slow down the process while they are read, get them.
Have you given thought to the solutions or alternatives to the situation?
What do you want from the mediation session?
Discuss the Agreement to Mediate, making sure the Complainant and any persons attending understand the Agreement and have signed the agreement, preferably before you get confidential information. You can accept fax signatures.
Confirm date, time, place.
Give telephone number and say call if there are questions.
For the Management Representative:
Explain mediation.
Explore the scope of the Management Representative authority and whether they can sign the agreement.
Make sure the person with authority and an interest in settling is there. This may not be the alleged discriminator but rather a higher level official.
Have you given thought to the solutions or alternatives to the situation?
What do you want from the mediation session?
Do you have any written material you think the mediators should see before the mediation session. If they are long or complex and would slow down the process while they are read, get them.
Discuss the Agreement to Mediate, making sure the Complainant and any persons attending understand the Agreement and have signed the agreement, preferably before you get confidential information. You can accept fax signatures.
Confirm date, time, place.
Give telephone number and say call if there are questions.
