ADR Flashcards
Most important skill in ADR
Active Listening
What is active listening?
Giving the other person adequate time to explore their thoughts and feelings.
Benefits of active listening
- Builds trust: You invite people to open up.
- Broadens your perspective
- Strengthens your patience
- Makes you approachable
- Increases competence and knowledge
- Saves time and money
- Helps detect and solve problems
Differences between listening and hearing
HEARING is
* Accidental
* Involuntary
* Effortless
And LISTENING is:
* Focused
* Voluntary
* Intentional
Signs of active listening skills?
Asking relevant questions
Positive body language, nodding
Eye contact
Verbal signs of active listening:
Positive Reinforcement: Occasional words and phrases, such as “very good” or “yes” or “indeed”
Remembering: remember key points. Reinforce what has been said was understood. Will encourage the speaker to continue.
Questioning: relevant questions
Clarification: asking questions to ensure the correct message has been received.
Why do we need ADR?
Confidentiality:
Contractual principles: you put the clause under the contract/agreement.
Legal professional privilege
Without prejudice communication: if you mark something this way, it can never be used against you.
Types of ADR:
Negotiation
Mediation
Conciliation
Arbitration
Differences between MEDIATION and arbitration
(Third party, binding, process, decision making and cost)
Mediation:
1- Both sides agree to the third party.
2- Decision can be legally binding if a compromise is reached
3-Process is a negotiation – more informal
4- Parties voluntarily accept a decision
5- Free
Arbitration:
1- Conducted by a registered arbitrator
2- Decision is legally binding
3- Process is like a court – testimony and evidence given
4- Arbitrator is the decision-maker
5- Can be expensive
Cases in which you can use MEDIATION and ARBITRATION
- Family-divorce
- Professional or clinical negligence
- Personal injury cases
- Director and partnership disputes
- Building disputes
- Employment issues
BODY LANGUAGE IN ADR
- FOCUS ON POSTURE
- ADDRESS YOUR FACIAL EXPRESSIONS
- EYE CONTACT
- PRACTICE YOUR HANDSHAKE
TYPES OF BODY LANGUAGE:
- ASSERTIVE BODY LANGUAGE
a. Be assertive. Postures of strength:
b. Controlling volume of your speech so that you are loud enough to convey your confidence, but no shouting. - FRIENDLY AND COLLABORATIVE BODY LANGUAGE
a. For business to put a consumer at ease: pointing your feet towards that person, indicating you are committed to the conversation - CALMING BODY LANGUAGE
a. In tense situations and negotiations. To calm others.
b. Keeping arms open.
c. Relax body.
WHO WOULD YOU INVITE TO A MEDIATION AND WHY?
Experts, as Insurance representatives and Law witnesses.
Because they help prove your claims through evidence.
WHAT IS THE DOCUMENT YOU SEND BEFORE A MEDIATION?
The position statements
- It is a key document for the mediator and provides an introduction to the dispute.
- It can be confidential
- Usually, they are sent to the opponent and the mediator
STYLES IN MEDIATION
- COOPERATIVE: Being friendly and conciliatory
- COMPETITIVE/CONFRONTATIONAL: Making demands, using pressure
TYPES OF STRATEGIES IN MEDIATION
COOPERATIVE, COLLABORATIVE AND COMPETITIVE
Describe the COOPERATIVE strategy
Trying to reach an agreement that is adequately fair and acceptable to both sides
1. Open by stressing the importance of settlement, try to build you openness and trust
2. Offer information to try to promote understanding
3. Move relatively quickly to make and seek concession at a reasonable level
4. Explain the basis for offers to show that they are fair
5. Use a conciliatory approach to try to secure the agreement
Strengths of the COOPERATIVE strategy?
- Provided that an opponent responds well to this approach there is a good likelihood of reaching an agreement
- Can support a continued relationship between the parties
- Fewer risks of the negotiation breaking down
Weaknesses of COOPERATIVE strategy?
- Can be undermined by a competitive opponent
- Without detailed planning this strategy can lead to unnecessary concessions and a weaker outcome for the client
- Early concessions may leave you with limited room for a manoeuvre later on
Describe the COLLABORATIVE strategy
Assumes that the parties can work together to reach and agreement, it’s more than co-operation as it is based on mutual effort and requires advance analysis and planning.
They work well in difficult political situations.
- Working together is stressed at the start of the negotiation
2- Each point is approached constructively, focusing on the best possible outcome for both parties - Issues are approached from the point of view of needs, interests and options, rather than the fault and blame
- Both sides work to maintain open and reasonable atmosphere
Strengths of the COLLABORATIVE strategy?
- Is capable of achieving very good outcomes
- Even if there is no agreement, the areas of conflict are usually decreased
- This strategy can be successful against a competitive opponent, so long as you are able to demonstrate the potential advantages for their client.
Weaknesses of COLLABORATIVE strategy?
- Can only really succeed if both parties are prepared to collaborate
- Effective collaboration requires substantial preparation options
- Can be exploited by a competitive opponent
- Where options can not be developed it may have little to offer as a result.
Describe the COMPETITIVE strategy
Looks to win, getting the best possible outcome for the client. Negotiators take a strong stance on each issue.
They work well in business situations
- Open my making strong statements about the client’s position.
- Make high opening demands
- Demand large concession from the opponent
- Make few/small concessions
- Give limited information but seeks details information from the opponent
Strengths of the COMPETITIVE strategy?
- Can be very successful against a weak or poorly prepared opponent
- Research has shown that a high starting point does tend to lead to a better settlement
- More successful on money based issues
- There is a little chance of being exploited by your opponent
Weaknesses of COMPETITIVE strategy?
- Can damage any ongoing relationship between the parties
- The use of pressure increases tension and stress levels which may make settlements less likely
- Strategy can be undermined by a well prepared opponent
- It can emphasise differences and can increase misunderstanding
- It can become a battle
- The focus on a win/lose may ignore some potential advantages of a collaborative negotiation.
