Peace Building - Finding Common Ground

My field experience as a practitioner has made me come to the conclusion that the gravamen of Peacemaking, Conflict Resolution and Peace Building efforts is the search by practitioners in charge of specified geographical locations for durable interest based common ground that is shared by the conflictants or disputants in that location to the extent that it is capable of mobilising their collective effort at consuming the conflict itself in their own collective interest. The atrocities and devastation that the world has experienced in violent conflict situations over the years has began to bring the very natural human tenet of Human Security more than any other consideration to the fore as the bottom line that should inform, drive and empower all actors including the international community towards a condemnation of senseless killing and a crave for peaceful co-existence. Literature abounds and continues to be developed on what the crucial factors are and how to proceed to attain peaceful coexistence despite the turbulent milieu of different and changing situations, considerations, players and the very global notion of diplomacy. In this dynamic, it becomes necessary for practitioners to share their field experience on the sticky situations they have had to confront in finding and sustaining common ground in conflict situations for the benefit of other practitioners. Let's share our experiences in sticky situations we have been confronted with in our quest to prevent or resolve violent conflict in order to ensure Human Security and global peace. Please share your experience or contribute a joke that would lighten the psychological burden on a practitioner in the field. Those in the field need our support.

Larry

FUN - Good Company Policy can forestall Labour Disputes. (Source: unknown)

”DRESS CODE:
You are advised to come to work dressed according to your salary.
a. If we see you wearing Prada shoes and carrying a Gucci bag, we will assume you are doing well financially and therefore do not need a raise.
b. If you dress poorly, you need to learn to manage your money better, so that you may buy nicer clothes, and therefore you do not need a raise.

c. If you dress just right, you are right where you need to be and therefore you do not need a raise.
SICK DAYS

We will no longer accept a doctor's statement as proof of sickness. If you are able to go to the doctor, you are able to come to work.
PERSONAL DAYS
Each employee will receive 104 personal days a year. They are called Saturdays & Sundays.
BEREAVEMENT LEAVE
This is no excuse for missing work. There is nothing you can do for dead friends, relatives or co-workers. Every effort should be made to have non-employees attend the funeral arrangements in your place. In rare cases where employee involvement is necessary, the funeral should be scheduled in the late afternoon. We will be glad to allow you to work through your lunch hour and subsequently leave one hour early.
BATHROOM BREAKS
Entirely too much time is being spent in the toilet. There is now a strict three-minute time limit in the stalls. At the end of three minutes, an alarm will sound, the toilet paper roll will retract, the stall door will open, and a picture will be taken. After your second offense, your picture will be posted on the company bulletin board under the 'Chronic Offenders' category. Anyone caught smiling in the picture will be sectioned under the company's mental health policy.

LUNCH BREAK
* Skinny people get 30 minutes for lunch, they need to eat more, to look healthy.
* Normal size people get 15 minutes lunch to get a balanced meal to maintain average figure.
* Chubby people get 5 minutes for lunch, that's all the time needed to drink a Slim-Fast.
Thank you for your loyalty to our company. We are here to provide a positive employment experience. Therefore, all questions, comments, concerns, complaints, frustrations, irritations, aggravations, insinuations, allegations, accusations, contemplations, consternation and input should be directed elsewhere.

The Management”

Have a nice day

Larry

In search of Common Ground - Somalia and Sudan

There has been a lot of denial of the clash of civilizations. The overlap in Arab and African demography, culture and influence over parts of Africa however appears to create its own space in which violent conflict tends to strive albeit under the guise of the quest for political power based on tribal, clan or religious supremacy; domination and control by an elite group. In these parts of Africa, Human Security has become subject to perspectives of power, history and a myriad of cultures seeking survival instead of a commonly accepted framework for social engineering or law for peaceful co-existence. Resort to violence is seen either as a right to assertion or maintenance of the status quo within a colouring of cultural perspectives whatever they imply and not the protection of human life. This appears to be at the base of the situations in the Sudan and Somalia. The international community is very helpless in these circumstances in which state sovereignty and rebel activity are still not subservient to a robust regime of international humanitarian intervention. Financing and human investment among other interests have often deterred such intervention or rendered it problematic/ineffective for poor and rich neighbours alike. Sudan and Somalia are not peaceful and as in history, we need a peace to keep and it might not matter very much if it is imposed. These thoughts make one wonder whether in the particular cases of Somalia and Sudan the rich countries of the Middle East could not do more? It would appear we are still in search of common ground.

Ghana Calls for Military Intervention in Zimbabwe

Members of Ghana's parliament on Wednesday 25 June called for United Nations military intervention in Zimbabwe to save lives. they argued that if Mugabe's intervention is not checked today, the tendency could spread. They said the situation is an insult to the continent and should be stopped. They lamented the trend where African leaders sit and watch on, while Mugabe runs the country down. they also proposed that the African Union should hold an emergency meeting to put measures in place for an interim Government to take over from mugabe.

One really wonders what has happened to the much hailed African Security Architecture of the African Union and the decision making process of the AU. What other time than now to deploy the Southern African Brigade albeit with UN and other support to protect lives?

The NIger Delta Situation

Small arms, armed violence, and insecurity in Nigeria: the Niger Delta in perspective

Authors: Hazen,J.M.; Horner,J.
Produced by: Small Arms Survey (2007)

This study aims to raise awareness of a number of issues relating to insecurity, armed violence, and the proliferation of illicit small arms in Nigeria since the return to democracy in 1999. It particularly focuses on the mounting challenges that now face the Nigerian government.

The paper finds that elections in Nigeria are perceived as zero-sum contests leading to the increasingly militarised nature of politics, the use of violence as an electoral tool, and the ingraining of a culture of violence in society. Numerous armed groups operate in the country, however today’s armed groups are better armed, trained, and sophisticated in their actions compared to those of the past. They have taken advantage of the opportunities presented by being hired hands, and have developed their own bases of economic support, thereby freeing themselves from political patrons. This has led some groups to try and influence the political process themselves.

While Nigeria supports international instruments to limit illicit proliferation and has put in place national laws to restrict the ownership and use of illicit arms, these laws are poorly enforced. The government’s response to armed violence has been a mixed strategy of carrot and stick. However, the only solution to the rising armed violence in the Niger Delta is a political one.

The authors conclude by highlighting some of the challenges facing President Yar’Adua in office. These include:

• less than two months after his inauguration, Nigerians were already showing frustration at the new president’s slow pace, which many say is further hindering government action
  
• Nigeria remains divided along numerous lines: ethnicity, religion, settler/indigene status, and political affiliation - the national elections held in 2007 did little to resolve these tensions
• the prospects for civil war appear slim, but the likelihood for the continuation of the use of armed violence remains high
  
• lack of development in the country coupled with few signs of economic improvement contribute to rising discontent - the government has benefited from high oil prices but these haven’t been widely dispersed, and this remains a rallying call for the armed groups in the Niger Delta
• a key element of addressing insecurity and armed violence is comprehensive security sector reform - the government has yet to engage in this type of reform, and will need to bring on board key leaders in the military and police so as to implement any strategic reform programme.
  

Available online at: http://www.eldis.org/cf/rdr/?doc=37317&em=260608⊂=conf

Desiderata - Our Inspiration for Peace

DESIDERATA

-- written by Max Ehrmann in the 1920s --
Not "Found in Old St. Paul's Church"! -- see below

Go placidly amid the noise and the haste,
and remember what peace there may be in silence.

As far as possible, without surrender,
be on good terms with all persons.
Speak your truth quietly and clearly;
and listen to others,
even to the dull and the ignorant;
they too have their story.
Avoid loud and aggressive persons;
they are vexatious to the spirit.

If you compare yourself with others,
you may become vain or bitter,
for always there will be greater and lesser persons than yourself.
Enjoy your achievements as well as your plans.
Keep interested in your own career, however humble;
it is a real possession in the changing fortunes of time.

Exercise caution in your business affairs,
for the world is full of trickery.
But let this not blind you to what virtue there is;
many persons strive for high ideals,
and everywhere life is full of heroism.
Be yourself. Especially do not feign affection.
Neither be cynical about love,
for in the face of all aridity and disenchantment,
it is as perennial as the grass.

Take kindly the counsel of the years,
gracefully surrendering the things of youth.
Nurture strength of spirit to shield you in sudden misfortune.
But do not distress yourself with dark imaginings.
Many fears are born of fatigue and loneliness.

Beyond a wholesome discipline,
be gentle with yourself.
You are a child of the universe
no less than the trees and the stars;
you have a right to be here.
And whether or not it is clear to you,
no doubt the universe is unfolding as it should.

Therefore be at peace with God,
whatever you conceive Him to be.
And whatever your labors and aspirations,
in the noisy confusion of life,
keep peace in your soul.

With all its sham, drudgery, and broken dreams,
it is still a beautiful world.
Be cheerful. Strive to be happy.

Sources of Small Arms into Ghana

Soldier Busted Over Weapons

An unfortunate corporal of the Ghana Armed Forces on peace keeping in Lebanon has been arrested for illegally trying to smuggle two short guns out of Lebanon to Ghana.

Another 79 soldiers who successfully dispatched their guns by sea to Ghana are being trailed for arrest and retrieval of the guns when they arrive at the ports.

A source at the military barracks in Tamale told this reporter that the military man (name withheld for now) and 79 others on completing their peace keeping assignment in Lebanon bought the guns from a shop for export to Ghana, since gun selling is fast becoming a lucrative business.

The source told Public Agenda that a pistol in Lebanon costs $250 and can be sold in Ghana for more than GH¢2,500 about four times the price .He said the high cost of the sophisticated guns has lured many military men into illegally importing guns into the country for sale to civilians.

Giving details, the source said the corporal was arrested when he tried boarding a plane with the guns hidden in a speaker after the cargo plane failed to arrive for their luggage. For that reason the officials decided that the luggage be sent by sea, instead of by air.

The source told this reporter that it took more than four hours for the UN command to lobby the Lebanese government to release the corporal and also took the Ghana government another four to five hours to lobby the UN command for man to be released for trial in Ghana.

Investigators traced the source of the gun to a shop and the shop owner disclosed that, the corporal was just one of the many Ghanaian soldiers who bought two or more guns from him. He revealed that eighty Ghanaian soldiers bought guns from him with some buying as many as ten guns.

The source said some well meaning military officers are unhappy about the increasing importation of arms by some military men and women. "Look every body is now buying a gun which is not good and this is what has destabilize many countries", he lamented.

According to security experts, the proliferation of arms among civilians is the cause of the upsurge in crime and the many bloody chieftaincy disputes across the country.

Source: Public Agenda

MEDIATION WORKS

MEDIATION WORKS !

WHAT YOU NEED TO KNOW ABOUT MEDIATION

General. Mediation, a form of alternative dispute resolution, aims to assist two or more disputants in reaching an agreement. The key component of mediation is that any agreement which may result is determined by the parties themselves rather than being imposed by a third party such as a judge or arbitrator. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use professional techniques to facilitate productive communication between disputants, thereby enabling them to more easily explore possibilities of mutual agreement. The mediator must be impartial. Mediation can apply in a variety of disputes. These include commercial, legal, diplomatic, workplace, community and divorce or other family matters.

Definition: Mediation is an informal, confidential process in which a neutral party (the mediator) assists the parties to understand their own interests, the interests of the other parties, and the practical and legal realities they all face. The mediator helps the parties explore options and arrive at a mutually acceptable resolution of the dispute. The mediator does not resolve the dispute. The parties do.

Part 1

General overview of the History, Philosophy and Framework of Mediation.

History of Mediation General Framework and Philosophy of Mediation

· Contemporary Status of Mediation · The Advantages and Disadvantages of Mediation

History of Mediation

Historical records and evidence of mediation practices date back to Phoenician society, ancient Greece, Africa and Rome. In some cultures around the world, the mediator is regarded as an important figure in the community, worthy of great respect. Buddhist traditions also encourage dispute resolution through discussion and mutual agreement rather than by force or by third-party arbitration. Alternative Dispute Resolution techniques such as conciliation and mediation are still highly favored processes throughout East Asia. Islamic culture has also historically embraced the process of mediation to resolve community disputes. In 1980 the United States Congress passed the Dispute Resolution Act calling for ADR programs nationwide to be administered by the Justice Department. Many state and local governments have funded mediation programs to resolve disputes quickly, at low cost and to unburden the courts.

General Framework and Philosophy of Mediation

In mediation, a neutral party facilitates communication between parties to enable them to reach a mutually acceptable resolution to the dispute in question. The process is intended to be highly confidential so as to allow the parties to communicate freely, without fear of their statements becoming public. A mediator generally assists the parties in generating options and creative solutions that will help to resolve the dispute. Mediators do not exert direct control over the outcome of the process, in contrast to what a judge or arbitrator may do. Instead, the parties mutually agree, on a voluntary basis, to a specific resolution.

In contrast to a traditional legal setting, such as litigation, lawyers are unnecessary in the mediation process, although they may have occasion to participate in some circumstances. A mediator, unlike a lawyer, does not advocate for one side or another, and should, in fact, be disinterested in the outcome of the dispute. The fact that a mediator does not have the authority to impose a decision upon the parties is a great advantage to the mediation process because it disincentivizes the parties to lie or exaggerate their claims, as they might otherwise do in a traditional legal setting. In fact, it has been widely observed that in this particular setting, the parties themselves tend to step forward as leaders to resolve the situation on their own, instead of conceding the process to a judge or mediator.

In addition to facilitating discussion, mediators often carefully help the parties to reasonably evaluate their position, interests, risks and options. Throughout this process, the mediator must proceed cautiously to ensure neutrality and to prevent even the appearance of bias. One major theoretical distinction between mediation and other dispute resolution mechanisms is that, in contrast to litigation or arbitration which look toward the past to untangle facts and interpret actions, mediation looks to the future. This forward looking approach is intended to resolve a problem rather than to stir up anger, confusion and conflict regarding a past event.

Contemporary Status of Mediation

Today, mediation is becoming increasingly common as the litigation process has become overburdened in our notoriously litigious society. In fact, many commercial contracts specifically prescribe mediation as the preferred method of dispute resolution to avoid unnecessary and excessive costs, delays and exposure to public scrutiny. Mediation is a popular form of dispute resolution in nearly every industry and area of life, from divorce disputes to complex union bargaining processes. A U.S. government survey showed 96% of all respondents and 91% of all charging parties who used mediation would use it again if offered.

Why or Why not? The Advantages and Disadvantages of Mediation

Mediation is not right for every situation, it is important to understand the strengths of mediation and the conditions which allow it to be successful. Some of the great advantages of mediation include:

• low cost
• expedient resolution
• confidentiality
• privacy from public and media scrutiny

Some circumstances which make mediation an ideal form of dispute resolution include:

• where there is no available legal remedy
• where an ongoing relationship exists between the parties
• where cost is a significant issue
• where timely resolution is a factor
• where direct negotiations have failed
• where multiple parties are involved

Likewise, there are some factors which tend to be unfavorable for the mediation process, they include:

• when a party seeks a declarative result (who's right and who's wrong)
• when a party wants to punish another party
• when a party desires to send a message to the public, an industry or individual
• where a legal injunction is required to prevent an ongoing or future harm
• when a party refuses to participate in the mediation process

Part 2

Negotiation Concepts and Strategies for Mediation

Pre-Mediation Planning Opening Offers and Demands Bottom Lines Strategies and Techniques Bargaining Styles Leverage Reciprocal Bargaining Generous Reciprocal Bargaining Theory Gift Giving

· Positions vs. Interests · Problems vs. People · Reframing · Effective Listening · Reactive Devaluation · Biased Assimilation · Loss Aversion · Equity Seeking · Attribution Error · Endowment

Pre-Mediation Planning

Before going into mediation, consider all of the possibilities. What risks do you face? What to you have to gain? What are the major "deal points" which will make or break the negotiation for you? In the field of mediation, the process of evaluating your case or position may be called BATNA and WATNA analysis. BATNA stands for Best Alternative To Negotiated Agreement. In other words, if the mediation does not produce a settlement or other type of agreement, what is the best thing that could happen? Will the other side ultimately give in to your side? Will a new law cause things to come out in your favor? Will the other side lose interest in their position? Will your costs/risks be negligible? Are you confident about winning in court? These are the kinds of question you may ask yourself while evaluating your BATNA. WATNA stands for Worst Alternative to Negotiated Agreement. A couple of questions you may ask for this analysis are: Will the other side probably win in court? Who controls the status quo? If the case doesn't settle, am I the one who will ultimately lose? The process of BATNA/WATNA analysis ultimately assists a party in determining the scope of their mediation efforts and their reservation point. Put another way, at what point will the party walk away from the table? When is it too risky not to settle, or too costly not to settle? Without a clear picture of these risk possibilities, it is extremely difficult to reasonably evaluate your case. A good mediator will also assist you in this analysis, but it's better to be prepared and knowledgeable before entering negotiations. You will appear more confident and credible in your claims.

Opening Offers and Demands

Great debate rages in the negotiation field over whether or not to throw out the first offer. Some experts advise never, ever to make a first offer. Others cautiously advocate making a first offer if it serves your position. Whether you decide to make a first offer may depend upon your particular bargaining style. Be aware, however, that making a first offer sends a powerful signal to the other party. First, it has the potential to erode your credibility. If your offer or demand does not pass the "straight-face" test, your credibility may be on slippery slope. Be careful that your offer or demand isn't so absurd as to make your statements and assertions throughout the rest of the negotiation unbelievable. Opening offers and demands are also powerful because they tell the other side roughly what your evaluation of the case is. It can therefore have the effect of shifting or anchoring the other party's expectations to the range you have requested or offered. The party may then respond to the offer/demand by adjusting or reevaluating the number they originally had in mind. Alternatively, if your offer/demand is outside of their anticipated range, it can provoke anger, incredulity or an equally unreasonable or absurd counter-offer.

Bottom-Lines

If you have a bottom-line number, guard it until the right moment. If you give it out too early, it can destroy the flexibility of the bargaining process. This occurs because parties often settle upon a number that wasn't anticipated. By revealing a hard number too early, it cements you into a position that is much more difficult to negotiate from. It also takes away the possibility of "gift-giving" which we will discuss later. The most fundamental rule of bottom-lines, however, is to tell the truth. Don't state a false bottom line, only to change it later to suit your negotiating needs. Doing so will ruin your credibility and decrease your leverage and bargaining power. If you are asked for a bottom-line and are not ready to give it, you may politely say that you have a number in mind but would like to engage in further discussion to learn as much as possible about all aspects of the dispute before making a final decision.

Strategies and Techniques

Bargaining Styles

Below is a chart describing different bargaining styles. Which category do you fit into?

	Soft [Cooperative]	Hard [Competitive]	Principled
	Participants are friends.	Participants are adversaries.	Participants are problem-solvers.
	The goal is agreement.	The goal is victory.	The goal is a wise outcome reached efficiently and amicably.
	Make concessions to cultivate the relationship.	Demand concessions as a condition of the relationship.	Separate the people from the problem.
	Be soft on the people and the problem.	Be hard on the problem and the people.	Be soft on the people; hard on the problem.
	Trust others.	Distrust others.	Proceed Independent of trust.
	Change your position easily.	Dig in to your position.	Focus on interest, not positions.
	Make offers.	Make threats.	Explore interests.
	Disclose your bottom line.	Mislead as to your bottom line.	Avoid having a bottom line.
	Accept one-sided losses to reach agreement.	Demand one-sided gains as the price of agreement.	Invent options for mutual gain.
	Search for the single answer; the one they will accept.	Search for the single answer; the one you will accept.	Develop multiple options to choose from; decide later.
	Insist on agreement.	Insist on your position.	Insist on using objective criteria.
	Try to avoid a contest of will.	Try to win a contest of will.	Try to reach a result based on standards independent of will.
	Yield to pressure.	Apply pressure.	Reason and be open to reasons; yield to principle, not pressure.

Special Notes on Hard Bargainers:

When encountering hard-bargainers, negotiation can be tricky. Difficulties arise because granting concessions makes the other side feel bullied, but sticking to principles can create an impasse of negotiation. Here are a few tips for dealing with hard bargainers:

• Don't attack the position, look behind it for interests and motivations
• Don't defend your position or statements, instead, invite criticism and suggestions
• Don't react, pause or relax
• Don't argue back - listen carefully and calmly
• Reframe accusations as an assault on the problem itself
• Ask productive questions

Hard bargaining can arise in certain circumstances as well. Unreasonable initial demands, lack of meaningful information, greediness, positional bargaining, and threats can all cause a competitive bargaining environment to emerge.

Leverage

Leverage is an adversarial concept which allows a party to exert pressure on the other side by appealing to his/her fears, risks or needs. For example, if a party must have a certain dispute resolved by a certain date, withholding a resolution, walking away from the table, or delaying progress exerts pressure on that party to give in to the demands of the other side. Using threats is also a form of leverage. Threat must be used carefully so as not to enrage the other side such that they refuse to participate in continuing discussion. Research indicates that the efficacy of threats depends on their credibility, immediacy, context, specificity and equity. Another form of leverage is "ego stroking." For some people, being recognized or acknowledged in a positive way can cause incredible shifts in perspective. Such a party may be more willing to negotiate, may be more generous, or may overlook past transgressions. Be sure that any appreciation for the other side that you convey is sincere. Sometimes, using positive-side leverage such as ego stroking can arouse an eagerness in the other party to reciprocate the sentiment or to seek to please you by offering concessions.

The Origin of Brilliant (and not so brilliant) Ideas

A great way to apply positive leverage while seizing advantageous settlement opportunities is to give credit to the other side for discovering a solution or for presenting a good idea. Instead of saying, "I want X dollars to replace my damaged roof" say, "A little while ago, you presented a very clear picture of the problem and it helped me to understand the issue of the roof better. I would like to hear more of your ideas about how we can approach that particular aspect of this negotiation." In other words, create for the other party a positive reputation, even if you believe it is undeserved in your particular scenario that they can then attempt to live up to. Conversely, when a party makes a tactical mistake which doesn't help your position, but does threaten further progress, give them an easy opportunity to save face. For example, "If I'm not mistaken, I think I heard you say you wanted $3 billion for your broken fence. I know there are a lot of numbers being exchanged here and I have become confused myself a couple of times with the amount of data. Would you like to review that figure and potentially make an adjustment at some point?" Be sure to avoid encouraging or doing anything which could result in face-saving-behaviors. Face-saving behaviors are defensive attempts to re-establish face after threats to face or so-called "face-loss". People are often willing and even eager to retaliate and sacrifice rewards at great cost when they perceive the threat of humiliation. By engaging in such behavior you are, at best, reducing the predictability of the outcome, and at worst, creating a hostile and perilous environment which could cost you and the other party a mutually agreeable settlement while augmenting the costs of dispute resolution.

The Sometime-Appeal of High Concepts

With some negotiators, it is possible to paint a bigger picture which extends beyond the limits of present issues. By appealing, for example, to a person's sense of idealism or a particular world-view, it is sometimes possible to break a deadlocked negotiation. However, just as high concepts can broaden the mind of a stubborn participant, a carelessly made plea to a person's sense of justice can provoke indignation and encourage increasing inflexibility. For example, a negotiator might say, "If we are able to come to a settlement today regarding the teacher's union, the students can return to school much sooner and resume their studies, which is, of course, what we all want." However, some negotiators may interpret such a statement as disingenuous, or mocking. So be careful!

Reciprocal Bargaining

Some negotiation experts contend that a reciprocal bargaining strategy promotes responsibility, accountability, and reasonable dealings. Reciprocal Bargaining theory basically holds that if one party makes an unreasonable demand or offer, the other side must do the same, back to that party. The result is, theoretically, that each side will then see and appreciate the consequences of their own behavior throughout the negotiation. Alternatively, if one party demonstrates generosity or uncommon honesty, the other side should reciprocate that behavior as well. The relationship-building potential of this strategy has been touted by many mediation experts as an effective way to facilitate productive conversation. Alternatively, this strategy can be counter-productive if the parties do not respond appropriately to the consequences. This can occur where parties are emotionally involved in the proceedings, when personal relationships are the actual subject of dispute or when the negotiation involves more than one "hard-bargainer". In these scenarios, a reciprocal strategy can create a downward spiral of bad behavior which ultimately causes negations to break down completely.

Generous Reciprocal Bargaining Theory:

An alternative strategy is to employ a downward-spiral breaking strategy known as generous reciprocal bargaining. This reciprocal strategy does not work in the systematic framework of the standard reciprocal bargaining. Instead, the parties reciprocate positive and negative behavior only the majority of the time. At irregular intervals, a party using this strategy will unexpectedly not reciprocate a negative behavior committed by the other party. This behavior breaks the vicious cycle of negative behavior and can allow for positive behavior changes in both parties, leaving them open to more productive communication exchanges and opportunities for mutual agreement.

Gift Giving

Giving gifts during negotiation is a great way to generate goodwill, especially at the initiation of bargaining. Small concessions will leave a strong impression with the other side's perception of you, and may influence their actions going forward. Small concessions are a low cost method of initiating momentum in negotiations. By the way, one of the easiest and cheapest concessions you can grant to the other side is to listen to them, carefully, openly, and without judgment.

Complaining

Some experts advise mediation participants to refrain from complaining. However, our position is that complaints can be useful to the extent that they can generate empathy and produce increased willingness to exhibit flexibility from the other side. If reasonable and genuine complaints are made carefully, are well-timed, are not excessively accusatory and do not occur with too much regularity, they can prove useful in the context of negotiation.

Positions vs. Interests

As we viewed in the bargaining styles chart, people negotiate in different ways, and with different results. A major problem in many mediations is that participants become committed to their positions, that is, the result they are aiming for. This tactic (or tactical error) causes inflexibility and generates ill-will. Mediators attempt to separate the interests from the positions. That is, the mediator seeks to learn what the actual issues that drive the mediation are. By separating out the interests an objective approach to resolving the dispute becomes possible and solutions become more clearly visible. For further illustration, please view this chart.

Position -1
Demands, threats, fixed solutions, proposals, or points of view.
Interest-1
What really matters to this person. (Why is X a problem?)
Issue-1
The topic the parties need to discuss and decide.

Position -2
Buy a muzzle.
Interest-2
I'm not well. I need my sleep. Want my home to be a quiet, private place.
Issue-2
How to control the barking at night.
Position -3
I will not pay for work you didn't even do.
Interest-3.
Want to be treated fairly. Need to know how much something is going to cost so I can budget for it.
Issue-3
What work was done, what recompense is fair. How rest of job will be billed.

As a negotiator, it is important to focus on your interests and to resist trying to control the outcome of the negotiation. In this way, you can more reasonably evaluate your risks, options and creative solutions along the way to a mutually agreeable solution. Additionally, it's a good idea to focus on the interests of the other side. By understanding, and by demonstrating understanding of the other side's interests, you will more easily command their attention and better understand the major deal points that will solve the dispute.

Problems vs. People

Similar to the above paragraph, mediators continually work to separate the people from the problems. This promotes a problem solving environment while reducing sniping, personal attacks and unreasonable and inflammatory statements. Be careful not to bargain over your positions. Instead, invent options for mutual gain; insist on using objective, evaluative criteria instead of accusatory statements. Although it's hard to take, if another party insults you personally, ignore the attack and look behind it to discover the feelings and motivations of the accuser. You may learn valuable information about the party's interests. To avoid inflaming the other party as well, avoid accusatory statements, personal attacks, petty insults and counter-productive statements and questions such as: What do you want from me? Calm down! Be reasonable! What's your problem? and You always.... or You never.....

Reframing

Reframing is perhaps the most important part of negotiation. Reframing is the process of restating something the other side has said in a way that is mutually beneficial. Reframing signals to the other party that you have listened to their story and that you understand and appreciate it. This, in itself, is a type of concession, and it doesn't cost you a thing! Reframing is an opportunity that presents itself at multiple stages of mediation. Instead of rejecting an offer, reframe it to convey your understanding as well as to present an opportunity to shift the focus or perspective on the topic. You might try saying "and" instead of "but" to effectively reject an offer while appearing open to further discussion and at the same time reframing the issue to your advantage. Also, it is a good idea to ask sincere questions instead of making demands whenever possible. Instead of pushing the other side to meet your demands, use reframing to bring them to your point of view. Instead of escalating an argument, use reframing to educate the other side about your feelings and interests. Above all, reframing places the negotiation in the context of cooperation instead of competition.

Effective Listening

This topic will be covered in-depth in the next unit. For now, let's look at the most basic concepts of effective listening. Listening is a great skill of negotiation. Listening allows you to learn about the other side's interests and to discover crucial deal points. Close listening also helps to generate goodwill with the other side. The value of "being heard" is greatly underestimated. Often, where emotions are involved, the opportunity to be heard and understood is very powerful. By listening carefully, you pave the way to excellent reframing opportunities, greater leverage, and an improved bargaining position. Be sure to listen carefully and actively (while respecting the ground rules of the mediation), empathize with the other side, ask questions which convey your understanding and empathy, and finally, restate the other side's story back to them while carefully respecting sensitive aspects of the account so that you do not inflame them.

Deal Killers

In every negotiation, the possibility of failure exists. Certain conditions, behaviors, or acts threaten to stall or break down negotiations. The more you know about these potential deal breakers, the better prepared you will be when you confront them, either on your own side, or across the table.

1. Reactive Devaluation

Parties tend to view offers by the other side skeptically. This leads to misevaluation of the other side's position.

2. Hidden Emotion
   Example: "I would rather lose than settle with this guy..." This leads to misevaluation.
3. Failure to Understand BATNA/WATNA: Leads to misevaluation.
4. Biased Assimilation:
   Parties tend to hear and remember things they want to hear, and not hear things that are unpleasant. This leads to misevaluation.
5. Loss Aversion:
   People generally prefer to avoid loss rather than to achieve gains. This leads to excessive attachment to positions.
6. Direct Contradiction:
   Avoid using language like, "You're wrong." Instead, offer a different perspective when it is your time to speak after validating the other party's opinion.
7. Equity Seeking:
   Parties may seek to return to the "Status Quo Ante" - that is, the state they were in prior to when the particular conflict arose, or to recoup costs incurred in litigation or which have arisen from the conflict itself. In so doing, that party may prolong the dispute unnecessarily in an attempt to reach that pre-conflict status.
8. Attribution Error:
   Parties tend to see the other side as evil, and their own side as innocent. This leads to misevaluation.
9. Endowment:
   People tend to overvalue their own property and interests, and undervalue the property and interests of others.
10. Miscalculation or ignorance of Deal Breakers:
    Think about reasons why the other side might refuse to settle. Plan out graceful ways to provide counter arguments or methods of avoiding those deal breakers.

Part 3

Mediation Techniques for Mediators

Stages of Mediation

Introductory Remarks

At the very beginning of the proceedings, the mediator should introduce him/herself to the parties and commend them for their participation in the process. Additionally, the mediator should explain his/her role as an impartial mediator who facilitates communication so that the parties are more free to engage in productive communication. It should be explained to the parties that such communications may lead to a mutually agreeable resolution, but that the mediator is disinterested in the result of the mediation. The mediator should also explain the rules and procedural guidelines of the session, which may include:

• equal opportunities to speak
• one speaker at a time
• no interrupting
• respectful listening
• rules of confidentiality
• no personal attacks against the speaker
• no profanity or disrespectful language
• parties can request a break at any time
• the parties voluntarily engage in the mediation process and may withdraw at any time
• the parties are responsible for resolution of the issue, not the mediator

The mediator should ask the parties to raise questions about the ground rules or about the mediation process generally at this time to ensure that they understand the format and are ready to proceed. The physical setting of the mediation should be in a neutral location and comfortable for the parties. Food and/or beverages may be provided to help comfort the participants. The setting of a mediation is the subject of debate. Square, rectangular or round tables have been the fuel of controversy. Some mediators choose not to use tables at all and prefer to allow the participants to sit in comfortable chairs or on couches. Any third parties who have arrived to observe or participate must be addressed by the mediator. Only the parties themselves should be present. This prevents grandstanding and encourages the participants to focus exclusively on the parties and topics at issue. In some cases, mediators will have received a statement or brief in writing from the parties or their attorneys. He or she may then recite a summary of what they have read to focus the parties in a particular way.

With respect to attorneys, various problems can arise where attorneys attempt to act in a purely adversarial/advocative manner during mediation. Such conduct usually stalls negotiation and is in fact one of the principal reasons why mediation is preferable to litigation. A mediator may ask the attorneys to be available for consultation, but that they allow their client to participate fully in the bargaining/discussion process.

Statements by the Parties

After the mediator has concluded his/her opening statement and the parties agree to the ground rules, the parties may be invited to make their own statements. Some mediators feel that this stage is unnecessary and harmful to the process because it tends to allow "venting" "sniping" and generally inflammatory statements which damage the process. Instead, these mediators choose to recite their own understanding of the dispute based on briefs they have received from the parties and then invite questions or clarifications from the parties. If the mediator decides to permit statements by the parties, they will generally describe in their own words what they perceive the dispute to be about, how it has affected them, and some ideas for problem solving. Commonly, the mediator will permit the person who requested the mediation to go first. Mediators should be careful to limit the extent of venting by the parties and restrict statements to factual statements and ones which describe how the party feels personally (I statements). One way that a mediator can try to prevent sniping is to ask whether there are other issues, other than those mentioned in the opening statement which need to be resolved. If, later on, such an issue arises, the mediator can ask the complaining/sniping party if the particular issue is more important than the one which brought the parties to mediation initially, and if it should take precedence over the original issue. Usually, after the party has had the opportunity to vent and make a decision about whether or not to shift focus to this ancillary issue, they will cool down and the minor matter will be resolved. To jumpstart the statements of the parties, the mediator may ask questions such as, "Could you tell us the concerns that brought you here today?" or "Tell us how you view the situation."

ELEMENTS OF GOOD LISTENING:

1. Focus - Notice gestures, posture, emotion, tone and content. Also observe interpersonal reactions between individuals.
2. Don't Judge - Try to listen to the person with an open mind.
3. Convey Impartiality - Your body posture and facial expression should demonstrate close listening, impartiality and willingness to understand. Expression, reactions and affirmations should not create the appearance of gullibility or bias. Be sure to look at each party in turn.
4. Set the tone - By carefully and actively listening, you can set a tone of respect, honesty, kindness, attention, confidence, seriousness and patience.
5. Show Interest - Convey a genuine and sincere interest in not only what the person is saying, but also simply in the individual while, of course, avoiding the appearance of bias.
6. Use Names: When appropriate, use the speaker's name when making affirmations.
7. Use sincere affirmation: Make the speaker feel important by using sincere affirmations and while avoiding the appearance of bias.

REFRAMING:

Reframing is a critical skill for a mediator to possess. Se Part 2 Example:

• Raw Statement: "I can't believe this auto mechanic could be so lazy and irresponsible with my car."
• Reframed: "It sounds like you are very concerned about the manner in which your car was attended to at the mechanic's shop."
• More Reframed: "One of your primary concerns seems to be the policies of the mechanic."

Another example of general reframing statements for mediation is the following:
"I see this as a great opportunity for everyone because...."

Information Gathering and Joint Discussion

At this stage of the process, the parties and the mediator talk together about the issues in an attempt to clarify the issues with questions and restatements. The mediator should attempt to summarize often and facilitate rapport building between the parties. Asking the right questions is crucial to gain understanding about the real issues between the dispute, to promote mutual understanding and cooperation among the parties, and to generate creative solutions. It is also important to phrase your questions in a non-threatening and non-incredulous fashion. Below is a list of questions you may ask at this stage of the process, or even during the bargaining phase:

• Can you give me an example?
• What is important to you?
• Can you help me understand why that is important?
• What concerns you about the situation?
• How has/does....affect(ed) you?
• Can you help me understand why?
• ....matters a lot to you. Is that correct?
• Could you describe....

Problem Identification/Private Caucuses

As mentioned earlier, some mediators use private caucusing as the bulk of the mediation process and skip some other phases such as party statements and group discussion entirely. During this phase, a mediator may attempt to determine which issues are capable of a mediated resolution and which are not, as well as which issues should be negotiated first. Some mediators will choose to proceed first with minor issues as a way of building rapport, trust, cooperation and a sense of accomplishment among the parties. On the other hand, if the participants lock into their positions early because they view the minor issues as a cheap way of expressing pre-mediation hostilities, resolution of more major issues can become more unlikely. The strength of private caucusing is confidentiality. Parties feel free to discuss their fears and expectations more freely without fear of reprisal, attack or loss of leverage. Mediators must be very, very careful at this phase to protect statements made in private caucus which are not intended to enter open debate. Questions are very important at this phase as well. Below is a list of private caucus questions to generate thought and creative options:

• What other options do you have if you don't reach agreement today?
• What problems might occur with your proposed solution?
• Is there something you think the other party doesn't understand about your circumstances?
• What if they offered....?
• What can you do to help resolve the issue?
• What other solutions can you think of?
• What would make this idea work better for you?
• Is there someway you can think of that everyone's needs could be met?
• What might work for you here?

Group Bargaining

This stage may or may not occur depending on whether the mediator has chosen to restrict bargaining to a caucus scenario. Some mediators prefer to alternate between private caucuses and joint discussion throughout the session, permitting essentially a "football huddle" in the form of a caucus, as needed, when the participants feel the need to privately discuss an offer or demand. A final agreement may also be reached during a private caucus whereby the mediator travels between the parties relaying offers, demands and solutions. If an agreement is not reached in caucus, the result of private caucusing may be brought into the open for debate/discussion with the group. As a group, new options can be generated and discussion between the parties can occur more easily if the mediator has done a good job of promoting rapport during caucusing. Possible resolutions proposed in caucus can be put on the table, discussed and bargained over in a pragmatic way using objective criteria to analyze possible results. Once again, it is worth mentioning that not all mediators will direct the parties to bargain as a group. In fact, many mediators restrict mediation to an introduction, opening statements and private caucusing exclusively.

GHOSTS IN THE ROOM:

A mediator must know who has the ultimate authority to make decisions. Such persons should be present at the negotiation, although this is sometimes impractical. If a decision maker is absent from the mediation, they are not privy to the progress in communication being made by the attending participants and are therefore in a poor position to judge the dynamics of the process.

INTERESTS vs. POSITIONS REVISITED:

A mediator may ask during the bargaining phase, or during the caucusing stage, whether any non-monetary solution may be reached. Although rare, on occasion a party will settle for a lesser monetary amount if an apology is offered. Token concessions can also help to resolve a settlement impasse in certain circumstances.

WHEN MEDIATION FAILS:

If an initial session does not result in an agreement, the parties may elect to return for another session at a later date. This can be helpful in allowing the parties a cool down period to more reasonably evaluate their position and/or interests. Alternatively, the parties are free to litigate the dispute, submit to arbitration, or select a new mediator. Most often, emotions which control a dispute, or gross misevaluation of a case are the causes of failed mediation.

Final Agreement and Closure

If an agreement has been reached, the mediator should make certain the parties understand what the agreement entails by asking some of the following questions:

• Is this agreement acceptable to everyone?
• Have we covered every issue?
• Is there any aspect of this agreement that anyone is uncomfortable with?
• Are you agreeing to....?
• Will you be able to live with this decision forever?

Once the mediator is sure that the parties understand the agreement and wish to proceed, he or she may commit the agreement to writing. The mediator may suggest that the parties take the agreement to their respective attorneys before signing.

Part 4

General Legal Concepts of Mediation

General Issues

Beyond the basic principles and strategies of mediation, it is important to understand the legal components and implications of participating in alternative dispute resolution. Mediators and participants should be aware of the following facts:

• Generally, communications made during mediation are inadmissible as evidence in court.
• Participating in a mediation does not necessarily deprive the parties of other available legal remedies such as damages or an injunction. Agreements reached in mediation may limit such rights, however.
• Agreements reached in mediation may be legally enforceable under the law of contracts.
• Underage persons, children, and the mentally disabled cannot participate in legally binding mediations.

Principles of Mediator Conduct

The American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution have developed a set of Model Standards of Conduct for Mediators as follows:

1. Self-Determination: A mediator shall recognize that mediation is based on the principle of self-determination by the parties. The parties must reach a voluntary, un-coerced agreement. Any party may withdraw from mediation at any time. A mediator should inform the parties of the importance of consulting other professionals, where appropriate, to help them make informed decisions.
2. Impartiality: A mediator shall conduct the mediation in an impartial manner. If at any time the mediator is unable to conduct the process in an impartial manner, or if the parties become convinced of bias on the part of the mediator, the mediator is obligated to withdraw.
3. Conflicts of Interest: A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. This duty continues throughout the mediation process. A mediator must avoid even the appearance of conflict. This includes the recommendations the mediator may make to the parties to see other professionals. Pressure from outside of the mediation process should never influence the mediator to coerce the parties to settle.
4. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties. It is much more important for a mediator to know how to mediate than to understand the industry or area of law to which the dispute relates.
5. Confidentiality: A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality.
6. Quality of the process: A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self-determination by the parties. A mediator should encourage mutual respect between the parties and ensure procedural fairness.
7. Advertising and Solicitation: A mediator shall be truthful in advertising and solicitation for mediation. Communication with the public should educate and instill confidence in the process.
8. Fees: A mediator shall fully disclose and explain the basis of compensation, fees, and charges to the parties. A mediator who withdraws from a mediation should return any unearned fee to the parties. A mediator should not enter into a fee agreement which is contingent upon the result of the mediation. A mediator should not accept a fee for referral of a matter to another mediator or to any other person.
9. Obligation to the mediation process: Mediators have a duty to improve the practice of mediation. Mediators have a duty to improve their professional skills.

Mediator Liability

Mediators should take precautions to protect themselves from liability. They should be qualified, trained and confident before mediating a legally binding mediation. A mediator could incur liability by misleading the participants about his/her qualifications and experience. Another source of liability is the breach of mediation confidentiality. All other laws of tort apply equally to a mediator, such as defamation and negligence.

CONFLICTS OF INTEREST REVISITED:

Conflicts of interest must be carefully avoided to ensure the fairness of the mediation process. If a mediator suspects that he/she may have a conflict, he should withdraw if the conflict is a significant one, or inform the parties and obtain consent to proceed from each individual if the conflict is a very minor one. A mediator must inform the parties even where there may be a reasonable basis for questioning his/her impartiality. To avoid the appearance of bias, a mediator must refrain from proposing his/her own participation in a particular dispute. It is also unethical for a mediator to ever meet privately with one side without the express consent of the other party.

Third-Party Involvement

Lawyers are not necessary in a mediation, and can even become obstacles to the process by incurring excessive cost or by preventing open communication. The participation of attorneys, however, may be inevitable in many cases where clients have hired them to mediate the dispute on their own. When involved along side the disputants, they may serve as active participants or as consultants. They typically prepare mediation briefs, make verbal presentations of the case, help negotiate and review draft resolution agreements. Please note that unlike in criminal cases, parties to mediation do not have a constitutional right to an attorney. Usually, only the participants are permitted to participate, although exceptions can be made by agreement. Other third-party participants, including witnesses and children who are not the subject of the dispute must not be in attendance.

Mediated Agreements

Usually, the parties sign an agreement to mediate. This is a brief document agreeing upon a time, place, mediator and possibly a set of rules for the process. It may also include a statement or affirmation that the parties have the legal authority to settle the dispute, and that the parties understand they have a right to legal counsel if they choose. A confidentiality statement may also be included. If a mediated agreement is reached, the mediator may draw up a summary of the agreement and allow the parties to sign it. This could be the basis of an enforceable contractual agreement between the parties.

Type of case:

Attorney’s Fees

Family Law

Partnership

Business /Contract

Health Care

Personal Injury

Construction

Housing

Probate

Defamation

Insurance

Prof. Negligence

Eminent Domain

Intellectual Property

Public Entity

Employment/Labor

Landlord/Tenant

Real Estate

Environment

Medical Malpractice

Securities

One practitioner and scholar offers the following advice to the mediator:

Do

Probe the issue of authority.

Listen and build trust.

Set the appropriate tone with an opening statement.

Develop an opening “patter” that fits your personality and philosophy.

Ask questions gracefully without indicating bias.

Reframe negative comments more towards the positive.

Use active listening techniques from time to time.

Feel free to empathize with each party’s perspective, while maintaining neutrality in the dispute.

Wait to offer evaluation until you see no other way to achieve progress toward settlement.

Have patience.

Don’t

Act like a judge.

Allow cross-examination.

Lose control of the proceedings.

Criticize counsel.

Omit a joint session focused on the parties’ perspectives.

Interrupt the presentations too much.

Ask questions showing bias.

Make one’s case too strongly or make statements in the joint session.
Reference: Marjorie Corman Aaron, Do’s and Don’ts for Mediation Practice, 11 Disp. Resol. Mag., No. 2, 19 (Winter, 2005). (© 2005 American Bar Association. (Hereby Acknowledged)