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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
AGENDA DEVELOPMENT
Part of accumulating information from the parties takes place through the mediator's use of questions. The following are examples of types of questions and description of when (if ever) they may be appropriate for use by the mediator:
Characterizing the Issues
At issue is some matter, practice, or action that enhances, frustrates, alters or in some way adversely affects another person's interests, goals or needs.
Mediation focuses on negotiating issues that people are capable of, and have the resources for, resolving. By definition, not all issues can be negotiated because the parties do not have all the resources necessary to resolve every problem for every person.
An example which is not a negotiating issue is prejudice or bigotry. If one party has a prejudice or hatred against a particular group of people, mediation will not alter that party's deeply held attitudes and beliefs - no matter how long the mediation session lasts or how skilled the mediator is. In contrast, the parties may be able to discuss and reach agreements on the coexistence or avoidance of particular behaviors that may be causing difficulties between them. The specific incidents are negotiating issues while prejudice and bigotry are not.
The parties to a dispute will speak in plain language and not in the language commonly referred to as "legalese." They will relate a series of events, and it will be up to you to cull through the information to succinctly state what you hear as the issues. It is important to realize the range of flexibility that the mediator possesses when characterizing the dispute.
By characterizing the issues in more neutral, future oriented terms the mediator has made a difference in inviting communication and assisting the parties to think creatively.
A mediator shapes both the way in which the parties talk with each other and the range of discussion. Resist the temptation to limit the mediation discussion to the four corners of a legal complaint, to only discuss the issues which are defined by law.
Very often when people are embroiled in conflict, they get stuck. They keep talking about the same issues and ignoring the fact that previous difficulties may have an impact on the current dispute. The way to assist the parties is to help them expand their discussion. The common misconception about negotiation and mediation is that the most difficult disputes to resolve are those that involve a lot money and many issues. In fact, it is more difficult to resolve conflicts in which there is only a single issue in dispute and very little money at stake because there is little room for the parties to maneuver and few concessions they can offer.
Priorities
The parties will talk about many things. Some are more important than others. Assisting the parties in identifying what matters most and what matters least to them establishes an environment that invites negotiation.
Parties will often discuss what is most important to them first and they will often repeat it several times in different ways. Listening to the parties carefully may reveal the attachment a party has to an issue and tactful questioning can confirm the level of interest on a particular topic.
Structuring the Discussion
As human beings, each of us are limited by the fact that we can only talk about one thing at a time. Hence, the order in which issues are discussed can become an important element in helping parties reach agreement. Generally, the guiding principle when setting an agenda is that you want to order the discussion in a way that will assist parties to move toward resolution. There are two schools of practice on which issue(s) to select first when setting an agenda.
Some mediators want to discuss the "easy" issues first. Once the parties have explained their concerns, you can probably make a quick assessment regarding which of those will be resolved most easily. While this judgment is tentative and open to refinement if the parties so indicate, you must start somewhere. By gaining agreement on several of these "small" less important matters, you can begin to develop a habit of agreement among the parties. The momentum of agreement may make the discussion of the difficult issues more productive.
Some mediators will begin with the issue that they view as central to the dispute or the "tough nut to crack." By beginning with the hardest issue, once agreement is made on that issue, small and easier issues will fall into place. Finding a good place to start will come with practice and you may develop your own preferences.
Here are some guides to help you find a starting place and structure discussions.
Categories
One can divide the issues according to various subject matters or principles. Often issues fall into categories such as economic matters (paying for the broken window) and non-economic matters (an agreement as to where the children will play soccer) or financial and behavioral. Appropriate categories will vary according to the nature of the dispute. By dividing the issues, the mediator assists the parties in breaking down the dispute into manageable parts. Notice how closely correlated this process is to that of characterizing the issues.
Nature of Remedies
Some concerns brought up by the parties will invite remedies which are mutual, e.g., that they both agree to do something for the other. Other concerns require one party to do something and the other party merely to accept it, e.g., one party pays the other party a sum of money. Often, mutual remedy issues are easier for the parties to discuss and agree to than are those which one party has the burden of compliance.
Time
Sometimes the issues will break into categories according to time. For example, the mediator may ask the parties to discuss the issues in chronological order (what happened first) or reverse chronological order (what happened last). In addition, sometimes an issue has a time constraint attached to it. Issues which are constrained by time are often easier for the parties to discuss because they have an outside interest pushing them towards resolution.
Relationship of the Party to the Issues
Some issues will be particularly difficult to resolve if the party or parties have a strong philosophical or personal attachment to the issue. It is best to defer discussion of these matters until other issues are resolved and the parties have built some momentum towards resolution.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),