Mediation Training By Lejla Mavris and Cameron Hunter Global Majority Promoting Peace through Dialogue: July 20 - August 3, 2008 By Lejla Mavris and Cameron Hunter Global Majority Promoting Peace through Dialogue: July 20 - August 3, 2008

Alternative Dispute Resolution (ADR)  Negotiation  Mediation  Arbitration  Litigation  Negotiation  Mediation  Arbitration  Litigation

ADR (cont’d)  Negotiation  2 or more parties/people engage in dialogue/discourse to protect or advance their respective interests.  Bilateral = 2 people or parties  Multilateral= 3 or more people or parties  Can you do better through negotiation or by pursuing other options?  Negotiation  2 or more parties/people engage in dialogue/discourse to protect or advance their respective interests.  Bilateral = 2 people or parties  Multilateral= 3 or more people or parties  Can you do better through negotiation or by pursuing other options?

ADR (cont’d)  Mediation  Third party neutral facilitates (helps) the parties to negotiation  Mediator has NO decision-making authority  Process is VOLUNTARY  Objective is to achieve a binding agreement or contract  Mediation  Third party neutral facilitates (helps) the parties to negotiation  Mediator has NO decision-making authority  Process is VOLUNTARY  Objective is to achieve a binding agreement or contract

Focus on Mediation  GOAL OF MEDIATION  Create Process that allows parties (disputants) to participate in the creation of a settlement agreement  Process is voluntary, parties may leave if dissatisfied  Objective is to achieve a binding (contractual) agreement that is enforceable  Benefit: parties may be more willing to accept agreement that includes their inputs (interests)  Benefit: mediator can work with parties to win their confidence in exploring possible options/solutions that they may not be prepared to share with adversary  GOAL OF MEDIATION  Create Process that allows parties (disputants) to participate in the creation of a settlement agreement  Process is voluntary, parties may leave if dissatisfied  Objective is to achieve a binding (contractual) agreement that is enforceable  Benefit: parties may be more willing to accept agreement that includes their inputs (interests)  Benefit: mediator can work with parties to win their confidence in exploring possible options/solutions that they may not be prepared to share with adversary

Focus on Mediation  FOUR STAGES OF MEDIATION PROCESS  1. Pre-mediation  2. Mediation  3. Agreement  4. Implementation  FOUR STAGES OF MEDIATION PROCESS  1. Pre-mediation  2. Mediation  3. Agreement  4. Implementation

1.Pre-Mediation  Communication with parties  Describe process  Secure commitment that principal (decision-maker) will be present  Obtain pre-mediation briefs  Exchange  Confidential  Hybrid – exchange and share further confidential memo with mediator  Communication with parties  Describe process  Secure commitment that principal (decision-maker) will be present  Obtain pre-mediation briefs  Exchange  Confidential  Hybrid – exchange and share further confidential memo with mediator

Pre-Mediation (cont’d)  Logistics  Date, time, location  Meeting Room  Caucus rooms  Necessities and Amenities  Phones  Computers/Internet Access  Food-coffee-refreshments  Security  Logistics  Date, time, location  Meeting Room  Caucus rooms  Necessities and Amenities  Phones  Computers/Internet Access  Food-coffee-refreshments  Security

Pre-Mediation (cont’d)  Pre-Mediation Briefs (statements)  Brief statement of history of conflict/case  Identify parties including decision-makers (people with authority)  Contested issues  Legal authority  Pertinent documents (contracts, etc.)  Settlement discussion history (past offers)  Goals and Objectives  Exchange or confidential?  Pre-Mediation Briefs (statements)  Brief statement of history of conflict/case  Identify parties including decision-makers (people with authority)  Contested issues  Legal authority  Pertinent documents (contracts, etc.)  Settlement discussion history (past offers)  Goals and Objectives  Exchange or confidential?

Pre-Mediation (cont’d)  Pre-Mediation Communications  Written  Notice of date, time, and location of mediation  Schedule for receipt of pre-mediation briefs  Copy of Mediation Agreement for review and signature(s)  Pre-Mediation Communications  Written  Notice of date, time, and location of mediation  Schedule for receipt of pre-mediation briefs  Copy of Mediation Agreement for review and signature(s)

Pre-Mediation (cont’d)  Oral  Phone contact with parties  Invite details in pre-mediation brief  Offer assurances of neutrality  Explain process  Prepare parties for positive approach to achieving settlement (compromise will be necessary)  Oral  Phone contact with parties  Invite details in pre-mediation brief  Offer assurances of neutrality  Explain process  Prepare parties for positive approach to achieving settlement (compromise will be necessary)

Pre-Mediation (cont’d)  The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:  Identify parties and their authority to settle  Identify mediator  Explain voluntary nature of process  Explain that mediator has NO DECISION-MAKING AUTHORITY  Explain use of CAUCUS MEETINGS and presumption of CONFIDENTIALITY unless mediator authorized to share information  Explain CONFIDENTIALITY of process  Explain Mediator immunity  Have parties sign the Mediation Agreement  The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:  Identify parties and their authority to settle  Identify mediator  Explain voluntary nature of process  Explain that mediator has NO DECISION-MAKING AUTHORITY  Explain use of CAUCUS MEETINGS and presumption of CONFIDENTIALITY unless mediator authorized to share information  Explain CONFIDENTIALITY of process  Explain Mediator immunity  Have parties sign the Mediation Agreement

2. Mediation  Mediator’s Initial Opening Statement  Welcome-informal-orient parties to premises, caucus rooms, phones, etc.  TAKE CHARGE OF THE MEDIATION  Establish your and their authority  Describe your role: not a decision-maker  Review elements of Mediation Agreement  SET HIGH ASPIRATION/GOALS  Mediator’s Initial Opening Statement  Welcome-informal-orient parties to premises, caucus rooms, phones, etc.  TAKE CHARGE OF THE MEDIATION  Establish your and their authority  Describe your role: not a decision-maker  Review elements of Mediation Agreement  SET HIGH ASPIRATION/GOALS

Mediation (cont’d)  Mediator’s “official” Opening Statement  Use of caucuses (confidentiality)  Breaks as needed  Goals: to achieve an agreement/settlement  Procedural  Substantive  Time limits/no interruptions  Venting  Questions?  Mediator’s “official” Opening Statement  Use of caucuses (confidentiality)  Breaks as needed  Goals: to achieve an agreement/settlement  Procedural  Substantive  Time limits/no interruptions  Venting  Questions?

Mediation (cont’d)  Parties’ Opening Statements  Identify Parties’ Interests, Concerns, Goals, Preferred Outcome  Create atmosphere for brainstorming Options  Promote use of objective criteria/ precedent decisions/what is fair  Parties’ Opening Statements  Identify Parties’ Interests, Concerns, Goals, Preferred Outcome  Create atmosphere for brainstorming Options  Promote use of objective criteria/ precedent decisions/what is fair

Mediation (cont’d)  Encourage use of Single-text Documents  Emphasize positive developments  Use caucuses to:  Explore BATNAS  Explore options by asking “What if…?”  Identify other parties’ interests and needs  Encourage use of Single-text Documents  Emphasize positive developments  Use caucuses to:  Explore BATNAS  Explore options by asking “What if…?”  Identify other parties’ interests and needs

Mediation (cont’d)  Prepare Interim Agreements reached during mediation (one-paragraph/page)  Procedural agreements  Substantive agreements  Single text procedures  Obtain signatures/initials on each agreement reached  Prepare Interim Agreements reached during mediation (one-paragraph/page)  Procedural agreements  Substantive agreements  Single text procedures  Obtain signatures/initials on each agreement reached

3. Agreement  Use title that highlights key achievements of negotiations  Identify parties, their authority, position, official title  Date and location  Summarize results in a preamble  Use title that highlights key achievements of negotiations  Identify parties, their authority, position, official title  Date and location  Summarize results in a preamble

Agreement (cont’d)  Be as specific/detailed as possible  Outline substantive and procedural agreements  Include timeline for implementation  Are provisions conditional?  What is expected/required of each party  Be as specific/detailed as possible  Outline substantive and procedural agreements  Include timeline for implementation  Are provisions conditional?  What is expected/required of each party

Agreement (cont’d)  What happens if agreement is broken?  Written notice of breach  Reconvene with mediator?  Arbitration  Litigation  Sanctions/penalties  Other?  What happens if agreement is broken?  Written notice of breach  Reconvene with mediator?  Arbitration  Litigation  Sanctions/penalties  Other?

Agreement (cont’d)  Include signatures of the parties  Witness signatures  Translator/interpreter declarations  Consider a signing ceremony to celebrate, publicize, and fortify the agreement  Include signatures of the parties  Witness signatures  Translator/interpreter declarations  Consider a signing ceremony to celebrate, publicize, and fortify the agreement

The Mediator  Develop your reputation as a mediator:  Respect for confidentiality  Avoid media if so agreed  Always use fair standards  Avoid conflicts of interests  Work hard on implementing agreement  Develop your reputation as a mediator:  Respect for confidentiality  Avoid media if so agreed  Always use fair standards  Avoid conflicts of interests  Work hard on implementing agreement