 |
 |
 |
 |
 |
|
 |
 |
|
 |
 |
|
 |
 |
|
 |
||
Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
ACCUMULATING INFORMATION
In order to assist parties in mediation, you Will need to learn what are the issues which brought the parties to mediation, whether voluntarily, via ADRO, or by order of the court in which they filed their dispute. In addition to the actual circumstances surrounding the parties' dispute, it is beneficial to observe the behavior of the parties toward one another before, during and after a mediation as a means of accumulating useful information. Keep in mind that communication is translated through more than just the spoken word. Nonverbal cues, posture, and tone of voice all convey a wealth of information.
Parties begin with their positions, it is up to you to help them identify their issues and interests.
The Parties' Opening Statements
The mediator's opening statement concludes by asking one of the parties to share why they are at mediation. Which party do you start with? Most mediators will begin with the person who has filed the claim with the court, the "complainant." This is a logical selection since the person who files in court typically wants something from the other party that they have been unable to obtain or resolve privately. The person who begins does have an advantage in framing the dispute; therefore, you should be mindful of that dynamic and allow who ever speaks second to have latitude to share not only a response to the first party, but also to describe any other concerns which the party has.
The complainant will articulate his/her concerns. Listen carefully. What the complainant has decided to share with you, the manner in how the information is shared, and the order of presentation are all important pieces of information. Let the complainant take as much time as may be reasonable.
When the complainant is finished, do not ask the respondent if they would like to respond, instead, ask him/her to explain his understanding of the issues and concerns. The second person to speak often feels defensive, it is your job to put the parties at ease enough to share what is important to them.
Try to hold off asking any questions until you have heard from all the parties. While it may be tempting to ask 'just a quick question" before the defendant responds, you never know how long the answer may be to even a quick question. Further, if the complainant's opening statement was long, it may be 20-3 0 minutes into the mediation before the defendant says a word. By the time the second party gets to speak, they may have given up any hope on this being a fair process. It is also possible that the defendant may clarify the issues, thereby answering questions before the mediator asks them.
After each party has spoken, the parties will look to the mediator to identify the next step in the process. As mediator, you will identify and summarize the issues as the parties have put them forth and your notes will assist you with that task.
Notes
A mediator's notes serve three important purposes:
- identification of the issues which the parties wish to address
- clarification of statements/issues for the mediator
- record of the parties' "movement" in regard to offers and solutions
The mediator's notes should not be a transcript of the mediation conference. Notes, by definition, are selective.
Your notes are an organizational tool and should permit you, at a brief glance, to recall a particular issue or propose a certain solution.
A common technique is to split a piece of paper, one side for the respondent and one for the complainant. The parties names appear at the top of the page. In addition to using notes as an organizational tool, notes can help mediators assure the parties that they have heard what the party has said.
It is also important in taking notes that you record information in neutral, simple terms. It is probable that the parties will be able to see your notes during the mediation. In general, your notes should include as few modifiers as possible.
Accumulating information from the parties and effective note-taking depends heavily upon your ability to listen to the parties. Practice the mediator slogan: "When I listen, people talk."
Listening
Earlier in the manual, listening was listed as one of the many important functions of a mediator. If the parties are talking, you should be listening. If you are not listening, you are not mediating.
Communication studies have offered five levels of listening that people engage in:
- Ignoring
the opposite of listening. It is an active choice not to pay attention to someone or something
- Pretending
tuning someone out
- Selective listening
paying attention to bits and pieces of information, a mixture of hearing and listening
- Attentive listening
paying attention to words and focusing energy on messages
- Empathic listening
done with the intent to understand. Empathic listening is done with ears, eyes and the heart.
As a mediator, your level of listening should be in the attentive to empathic stage. Paying attention to what is said and what is not said is key to your role as mediator. The parties will know whether you are listening to them. The following are signs that confirm that you are listening:
Effective and appropriate eye contact
Appropriate facial gestures
Appropriate affirmative head nods
(remember that the nod of the head
can be interpreted as agreement or
acknowledgment - try to be consistent
with your nods to both parties)
Avoidance of actions or gestures that
suggest boredom
(such as yawning or
leaning on your hand)
Asking clarifying questions
Paraphrasing using your own (neutral) words
Not interrupting the speaker
Not talking too much
Acknowledging and validating feelings and thoughts
(having empathy)
| back |
Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),