TRAINING IN MEDIATION: Seeking African Solutions to African Challenges Through a Participatory Learning Process Workbook ACCORD, 2004 All

ll rights reserved. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. First published 2004 Published by African Centre for the Constructive Resolution of Disputes (ACCORD) Private Bag X018 Umhlanga Rocks 4320 South Africa Phone +27 (0) 31 502 3908 Fax +27 (0) 31 502 4160 e-mail: info@accord.org.za http://www.accord.org.za Written and developed by Ian Henderson Editing, Design and layout by Ian Henderson Draws on the manual: Transforming conflict: Seeking African Solutions to African Challenges Through a Participatory Learning Process, written by Kim Jones, LandMark, and illustrated by Kathy Arbuckle, Centre for Adult Education, University of Natal ISBN NO: This training manual was developed with support from:

The opinions, findings, and conclusions or recommendations, expressed in this (publication, program, exhibition, etc.) are those of the author(s) and do not necessarily reflect the views of the United States Institute of Peace.

ACCORD | African Centre for the Constructive Resolution of Disputes

Contents
Introduction My learnings What is mediation? Getting a perspective on conflict What perspectives can I identify with? What is conflict? Conflict can be positive Where does mediation fit in? Types and levels of conflict What is mediation? My personal story Advantages of mediation When to mediate? Models of mediation Mediation abacus Becoming a mediator Stages in mediation Stages in mediation Understanding negotiation Styles of negotiation Approaches to negotiation Whats wrong with positional bargaining? Finding an alternative approach Preparing for mediation Preparation Mediators entry Analysing a conflict ACCORDs approach Identify the parties Tools for identifying and analysing the parties Sorting the parties Root causes of conflict 5 6 7 8 9 10 11 12 12 13 14 15 16 18 20 21 23 24 26 26 27 27 28 31 32 33 34 35 36 37 38 40

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Stages of conflict BATNA Opening the mediation Arrivals and departures Seating & physical space Opening statements Mediators opening Parties presentations Ground rules The mediation process Setting the agenda Identify areas of agreement Role of a mediator Getting to interests Separating the people from the issues Shift from positions to interests One text procedure One-text and multi-party Generating options for settlement Formulating recommendations Separate meetings Closure & agreements Helping parties to make offers Agreements Mediator tool kit Co-mediation The right approach Perspectives & problem solving Listening & Communication Reflective listening Open-ended questioning Data & Interpretation Neutrality & Impartiality Working with Channels

43 50 53 54 55 56 56 56 58 59 60 60 62 63 63 63 65 67 68 69 70 73 74 76 79 80 82 83 85 85 87 88 90 93

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Empathy & Compassion Climate report Looking after the mediator Recognising emotions Where is it coming from? Preparing teams Energy, stress & motivation What to do in a break? Resources Reading list

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Introduction
We often hear that a majority of the worlds conflicts are being played out right here in Africa. This is a continent of huge diversity in culture, race, levels of development, poverty and wealth, ideology and one which faces many challenges with massive conflict potential. There is thus a huge need for peacemakers with conflict management skills, and particularly the specialised role of conflict mediator. There are many different approaches to mediation, and some specialised contexts in which it can be found in a legal environment, in labour disputes, in marital and relationship therapy. This training is focused on giving you a broad understanding of the theoretical base of mediation, teaching you how to run a mediation process, and helping you to begin working on some of the personal skills and attributes you will need to be an effective mediator. You will take these skills and learning away and apply them to the specific context of conflict that you are working with. Learning to become an effective conflict mediator is a life-long process. To continue your education, please read some of the books listed in the Resources section at the end of this manual. The best way to learn is to continue to receive new knowledge, and then to test and reinterpret it in the furnace of real daily experience. ACCORD is an African conflict management organisation. We are committed to building African skills, capacity and expertise to bring African solutions to the challenges we face on this continent. Training mediators is one of the ways we are making a contribution to this process. We believe that each person we train has a unique contribution to make to bringing about peace and constructive resolution of disputes in Africa.
PROCESS

THEORY

SKILLS

This training integrates three aspects of learning theory, process knowledge and the acquisition of skills. In most exercises you will be gaining all three simultaneously. Your trainer will assist you to reflect on what you are learning in each sector, and how to bring the three perspectives together.

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My learnings
Use this learning map to record key learnings that have been significant for you in this training. Draw a line from a circle and make a brief note about what is important, to remind yourself and start putting it all together.

THEORY

PROCESS

SKILLS

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INTRODUCTION

What is mediation?

ACCORD | African Centre for the Constructive Resolution of Disputes

Getting a perspective on conflict

What words come to mind when I think of conflict?

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What perspectives can I identify with?

Name some different perspective on conflict that you can identify with, and make some notes about what strikes you about these different perspectives:

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What is conflict?
Mediation is a response to the challenges raised by conflict. It is a particular attempt to intervene in conflict to: change the course of that conflict; and to manage the conflict constructively so as to lessen its destructive impact and increase its creative value for parties in conflict. But what is conflict? Why do we automatically think of conflict as negative? Why are almost all of us scared of conflict?

Conflict is a state of human interaction where there is disharmony. It emerges when parties compete over perceived or actual goals, values or interests. It occurs when parties confront each other with opposing actions and counter-actions. It is an indicator that something is changing, has changed or needs to change. It is an interaction which aims at beating an opponent.

Conflict is a form of competitive behaviour between people or groups. It occurs when two or more people compete over perceived or actual incompatible goals or limited resources (Boulding 1962, cited in CDR 1986:2). A social conflict exists when two or more persons or groups manifest the belief that they have incompatible objectives (Kreisberg 1988:2). Conflict is an outgrowth of the diversity that characterises our thoughts, our attitudes, our beliefs, our perceptions, and our social systems and structures. It is as much a part of our existence as is evolution (Weeks 1994:7). The existence of social or political conflict is not in itself a cause for concern. Conflict is often a source of creativity and change (Rupesinghe 1998:27). Conflict is a state of human interaction where there is disharmony or a perceived divergence of interests, needs or goals. There is a perception that interests, needs or goals cannot be achieved due to interference from the other person/s). (ACCORD 2001)
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Conflict can be positive

Conflict is often seen as negative. But, conflict can:

create an opportunity for balancing the power within a relationship or the wider society and the reconciliation of peoples legitimate interests; lead to greater self-awareness and understanding and awareness of diversity and differences between people, organisations and societies; lead to personal, organisational and even systemic growth and development; act as a useful medium for airing and solving problems; allow for different interests to be reconciled; and foster unity within groups.

Most people are terrified of conflict, and would rather avoid it they deal with it only as a last resort. To be an effective mediator you will have to learn to accept conflict and deal with your own internal apprehension around conflict. A first step is to learn to deal with conflicts in your own life. This will help you to be neutral when assisting other people with their conflicts.

Why see the positive aspects of conflict?

We should see the positive sides of conflict so that we dont:

avoid dealing with conflict or doing battle with the adversary; see conflict only as a battle between incompatible selfinterests and desires; see the conflict in terms of absolute differences. This colours the whole relationship and ignores healthy, more positive aspects of the relationship.

Conflict is not good or bad it simply is. The natural systems of nature involve conflict at many different levels whether it be a lion eating a warthog for survival, or a male buffalo fighting and competing for leadership of the herd. As we observe, we become aware that conflict is often necessary for change in life it should not be suppressed, However, there is evidence all around us, particularly here in Africa, of the devastating impact of unrestrained or unmanaged conflict. This training programme should assist you to play your part in the management and resolution of conflicts as you encounter them in your daily lives.
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Types and levels of conflict

T

PERSO N ER
AL

There are three levels of conflict:

Example: Conflict between a parent and child over responsibilities within the household.

IN

Example: In 1991 conflict broke out between two rival taxi associations in the Western Cape. The conflict centred around control of lucrative taxi routes.

T IN

ERGROU

IN
Example: In the late 1970s, there was conflict in the Sinai Peninsular. Egypt was demanding the immediate return of the entire Sinai; Israel, who had occupied the Sinai in the 1967 war, refused to return any of it. Israels underlying interest was in security that its borders were safe from attack by Egypt. Egypts interest was sovereignty control over land that had been part of Egypt for centuries.

TE R S TATE

Where does mediation fit in?

Informal discussion

Negotiation

Mediation

Arbitration

Adjudication

Force

DECISION BY THE PARTIES

DECISION BY EXTERNAL PARTY

DECISION BY FORCE

Parties lose control of the process/content/solution

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What is mediation?
Mediation is a way for people to deal with problems and conflict. It happens when the people involved want to talk to each other to find a solution to the problem but are unable to come together and reach agreement without the assistance of a third party. In most cases, mediation:

involves two or more parties; occurs under the invitation of the parties to a conflict; involves an acceptable, impartial and neutral third party whose role is to assist the parties to reach their own mutually acceptable agreement, and who has no authoritative decision-making power; happens when there is a problem, a conflict of interest or a common concern between parties; is appropriate when the parties have an uneven power balance; can only occur when parties are willing to negotiate; happens when the parties want to reach a joint agreement; is a verbal, interactive process; requires a mediator to assist parties to identify the issues of conflict, educate each other about their needs and interests, come up with possible settlement options and bargain over terms of a final agreement. Most people have some experience of being mediators, whether in your family, or work context, or in your community or neighbourhood. Mediation is thus both a formal and an informal process everyone can be and has been mediators. Reflect on these experiences they will help you in your quest to learn the formal art of mediation. Learning to be a mediator is a long process of integrating your personal experience and insight with skills, techniques and theoretical approaches that you learn.

Mediation can have different flavours in different contexts it may have a therapeutic angle (e.g. in the case of family or community mediation), it may have a legalistic undertone (e.g. in a labour dispute), or it may have a statesmanship quality (e.g. in an international political dispute).

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My personal story
Write down a personal story of your experience acting as a mediator, or being in a mediation. How did it feel? What was good, or went right; and what went wrong, or was negative about the experience.

WHAT DID YOU DO WELL?

WHAT WENT WRONG?

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Advantages of mediation
There are many advantages to using mediation where appropriate conditions exist: ADVANTAGE
Mutually satisfactory outcomes High rate of compliance Comprehensive and customised agreements Experience of creative problem solving Greater control and predictability of outcome

REASON?
Parties are generally more satisfied with solutions which have been mutually agreed upon, rather than those imposed by a judge or arbitrator. Parties who have reached their own agreement are generally more likely to comply with its terms. Mediated settlements can address both legal and extralegal issues. The parties can tailor the settlement to their particular situation. Mediation teaches people practical problem-solving techniques that can be utilised to resolve future disputes. Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a negotiated or mediated settlement than they would be if a case was arbitrated or went before a judge. People who negotiate their own settlements often feel more powerful than those who use lawyers to represent them. Mediated negotiations can provide a forum for learning about and exercising personal power or influence. Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties interests can often preserve a working relationship in ways that would not be possible with a win/ lose decision-making procedure. Mediation can also make the termination of a relationship more amicable. Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. Because of these above reasons, mediated settlements tend to hold over time, and if a later dispute arises, the parties are more likely to use problem solving to resolve their differences than to pursue an adversarial approach.

Personal empowerment

Resolves relationships

Workable and implementable decisions

Decisions that hold over time

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When to mediate?
There are certain conditions under which mediation is more suitable and is more likely to succeed: SUITABLE
Moderate conflict Party commitment Lawyer commitment Continuing relationship Power equality Multiple issues Adequate resources No clear guidelines Privacy accepted External pressure

UNSUITABLE
Matters of policy Pure legal question Ulterior motives Personal danger Fact-finding required Emotional problems Responsibility avoidance Value differences Court remedy needed Great urgency

It would be most appropriate to use mediation when:

parties have a history of co-operation and problem solving on some issues; parties do not have a long history of adversarial relations or prior litigation; the number of parties is limited and the dispute has not spread to other persons or groups; issues in dispute are not too many and the parties have been able to agree on some issues; the parties have low or moderate hostility and anger towards each other; the parties have, or may have, an ongoing relationship; the parties desire for settlement is high; the parties accept the intervention and assistance of a third party; there is some external pressure to settle, for example time pressure, diminishing benefits of remaining in conflict, unpredictable outcomes of the conflict;

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there is more than a single issue in dispute; or there are adequate resources to effect a compromise.

It may be inappropriate to mediate when:

The dispute involves a pure legal question e.g. the interpretation of a contract; The parties have ulterior motives for using motivation e.g. to gain further information, to punish the other party, or to cause a delay beyond a limitation period; Use of mediation could involve risk of physical danger e.g. in a case of abuse; One or more of the parties is in a disturbed emotional or psychological state; There is an uncompromising difference over matters of value or fundamental principle e.g. affirmative action; or Where a remedy is needed that only a court can provide e.g. a restraining or protection order.

A mediator has to learn to become aware very quickly of parties who are in a mediation with ulterior motives, such as punishing the other party, or delaying settlement, or gaining further information. After drawing awareness to the problem, a decision must be taken to either terminate mediation, or to deal with these issues before proceeding.

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Models of mediation
There are many different types of mediation, and different contexts for its use. While mediation can be used in a quasi-legal or industrial relations context, for instance, this is not our specific focus in this programme. ACCORDs focus is towards the use of MODELS OF MEDIATION SETTLEMENT MEDIATION FACILITATIVE MEDIATION
Also known as Main objective Compromise mediation To encourage incremental bargaining towards compromise, at a central point between the parties positional demands In terms of positions, based on parties self definition of the problem High status (lawyer, manager); no necessary experience in the process, skills and techniques of mediation Determine parties bottom lines and through relatively persuasive interventions move them in stages off their positions to a point of compromise Limited procedural interventions by mediator, positional bargaining by parties Understood by parties, culturally accepted, not difficult to do, little preparation needed Overlooks parties needs and interests, can be manipulated through initial ambit claims, difficult to cross last gap Commercial, personal injury, industrial disputes Interest-based, problem-solving mediation To avoid positions and negotiate in terms of parties underlying needs and interests instead of their strict legal entitlements In terms of parties underlying interests substantive, procedural and psychological Expertise in mediation process and techniques; no necessary knowledge of the subject matter of dispute Conduct the process, maintain a constructive dialogue between the parties and enhance negotiation process Low intervention role for mediator, parties encouraged to fashion creative outcomes around mutual interests Can make most efficient use of negotiation opportunities, controlled by parties May not reach an outcome, can be lengthy, requires skills from parties

Definition of dispute Types of mediators Mediators main role

Other characteristics

Strengths

Shortcomings

Areas of application

Community, family, environmental, partnership disputes

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mediation in conflict and at all levels from personal to inter-state conflict. Boulle & Rycroft, in Mediation: Principles, Process, Practice have identified a useful structure of four models of mediation. In practice these models will merge, and a mediation may take on a number of these different roles, however it is helpful to understand the different roles. The approach of this course could be said to be focused primarily on Facilitative mediation, and including elements of Settlement and Therapeutic mediation. Any sources referred to in this manual can be found in the Resources section at the end of this Workbook.

MODELS OF MEDIATION THERAPEUTIC MEDIATION EVALUATIVE MEDIATION

Also known as Main objective Reconciliation, transformative mediation To deal with underlying causes of the parties problem, with a view to improving their relationship as a basis for resolution of the dispute In terms of behavioural, emotional and relationship factors Expertise in counselling or social work, with understanding of psychological causes of conflict Use professional therapeutic techniques before or during mediation, to diagnose and treat relationship problems Decision-making postponed until relationship issues have been dealt with Can lead to resolution rather than just settlement of dispute Could be prolonged and terminate without any agreement, confuses counselling/mediation roles Matrimonial, parent/adolescent, family networks, continuing relationship disputes Advisory, managerial mediation To reach a settlement according to the legal rights and entitlements of the parties and within the anticipated range of court outcomes In terms of legal rights and duties, industry standards or community norms Expertise in substantive areas of the dispute, no necessary qualifications in mediation techniques Provide additional information, advise and persuade the parties, bring professional expertise to bear on content of negotiations High intervention by mediator, less party control over outcome

Definition of dispute Types of mediators Mediators main role

Other characteristics

Strengths

Shortcomings

Areas of application

Mediators substantive expertise used, outcome within range of likely court verdicts Blurs mediation/arbitration distinction, does not teach parties skills for the future, additional responsibilities for mediator Commercial, personal injury, trade practices, anti-discrimination, matrimonial property disputes

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Mediation abacus
See J. Wade Mediation The Terminological Debate (1994) 5 ADJR The mediation abacus, developed by Wade and Gribben, represents some of the variable features of mediation. The beads represent the fact that there are many dimensions on each variable. THE MEDIATION ABACUS Consensual entry Party choice of mediator Mediator qualified Independent, neutral mediator Low intervention by mediator Non-evaluative mediator Outcome consensual Therapeutic/educational function High degree of confidentiality Rigid rules and procedures Agreement legally binding Deals with past and future factors Compulsory entry Mediator imposed on parties Mediator with no qualifications Mediator interested insider High intervention by mediator Evaluative mediator Mediator influences outcome Settlement function only Low degree of confidentiality Flexible rules and procedures Agreement not legally binding Deals only with present issues

Factors which influence the variables:

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Resources of parties (time, funds, expertise) Degree of hostility between parties Mediators experience and preferences Bargaining strength of parties Facilities/amenities available Needs and wishes of parties