mediator tools

Question 1

Why is conflict avoidance often used?

Answer 1

(1) the issue isn’t very important; (2) parties don’t believe they have power to force a change; (3) parties don’t know what can be done to improve the situation; (4) parties are fearful of backlash if they seek change

Question 2

Where do most disagreements end in daily life?

Answer 2

informal problem-solving discussions when people decide not to let the problem ride. Problem is usually resolved or dropped due to lack of willingness or ability to push for a resolution

Question 3

What is negotiation?

Answer 3

A bargaining relationship between disputing parties where parties are voluntarily coming together to express their own needs, exchange resources, or resolve one or more issues.

Question 4

What is mediation?

Answer 4

An extension and elaboration of the negotiating process through the intervention of a third party with no decision-making power. The intent is to reach a voluntary settlement that is mutually agreeable and acceptable.

Question 5

What is the role of a mediator?

Answer 5

An impartial third party who assists parties in negotiating to reach their own mutually acceptable settlement to the issues in dispute. A mediator guides the parties through an organized problem-solving process. Mediator is not there to be a judge. Mediator will not decide who is right or wrong in the matters. Mediator will not fix the problem or tell parties how to resolve their differences. Mediator will not give legal advice.

Question 6

What are the characteristics of mediation?

Answer 6

The decision is in the hands of the parties in conflict. The mediator is here to help the parties negotiate a voluntary settlement to the problem that is acceptalbe to both/all of them. In mediation it is up to the parties to cretae and agree upon a solution that they feel is in their best interests.

Question 7

Explain confidentiality during the mediation process.

Answer 7

Mediator will keep whatever is said during mediation confidential. Mediator asks that all parties agree to not testify in any legal proceedings that might arise in the future involving the issues being discussed.

Question 8

How does the mediator establish authority of parties to settle the dispute?

Answer 8

Ask the parties “do I understand correctly that you both have the necessary authority to decide today on how this matter could be resolved?”

Question 9

What should the mediator do if it is determined that one of the parties does not have the authority to settle today?

Answer 9

Mediator should ask party who else will need to give approval AND verify that this condition is acceptable to the other party.

Question 10

What are the three basic ground rules of the mediation?

Answer 10

(1) Only one person speaks at a time and while that person is speaking the other party/s is listening carefully; (2) parties direct their comments to the mediator rather than to each other; (3) if either party needs to take a break, they let the mediator know, and mediator will find an appropriate place to stop.

Question 11

Does the mediator need to get agreement on the ground rules?

Answer 11

Yes! AND each person must say “yes” to them.

Question 12

Which side should Telling the Story begin with?

Answer 12

The party who initiated the request. Tell the parties that after this person is finished, the mediator will give the other side the same oportunity. Ask each person whether they agree to this.

Question 13

What are the key elements of the Mediator’s Introduction?

Answer 13

(1) Introduce myself
(2) Welcome them
(3) Verify how they would like to be addressed. If one person uses a title, then use a title with the other person until they ask you to stop.
(4) Explain role of mediator/parties and mediation process.
(5) Confirm authority to mediate
(6) Read agreement to mediate and have them sign: This contains confidentiality, no testifying, and mediator doesn’t give advice
(7) Explain ground rules and have them agree to them individually
(8) Ask if questions
(9) Ask respondent if okay to start with initiator

Question 14

How do you keep a person from resorting to positional bargaining?

Answer 14

When a proposal is put out there, find a connection to the interests and reiterate it back to the party with the proposal.

Question 15

What are the 4 main criteria of principled negotiation?

Answer 15

(1) Separate the people from the problem.
(2) Focus on interests, not positions
(3) Invent options for mutual gain.
(4) Insist on using objective criteria.

Question 16

What is positional bargaining?

Answer 16

One of the two basic styles of negotiation. In positional bargaining, the parties are seeking to protect their own interests but the focus of each party is on his or her self interest only. The parties state their demands and attempt to reach a compromise through a series of modifications of those demands.

Question 17

What is principled negotiation?

Answer 17

One of the two basic styles of negotiation. In principled negotiation, the parties are seeking to protect their own interests but each party recognizes the legitimate interests of the other party and looks for compromise solutions which will address the interests of both parties. Parties who use PN are good listeners, use objective criteria wherever possible, seek a fair result rather than a clear victory, and are generally more creative than psotional bargainers in identifying solutions that permit mutual gain. They follow a cooperative negotiating strategy.

Question 18

What is a cooperative negotiating strategy?

Answer 18

an atmosphere where trust is established, more moderate opening demands are made, parties are more open to discussion of the facts, interests, and objectives, use reason to support positions, and opennes to persuasion by the other party.

Question 19

What is an example of a joint problem statement?

Answer 19

In order to reach a lasting or satisfying resolution of the issues in conflict, you will need to look for solutions that will address the need/interests of each of you as they relate to the issue of the future arrangements regarding the washer and dryer. You’re going to have to try to come up with an agreement that will reduce the frustration and worry about financial loss that you both currently are feeling and that will address the initiator’s need to reduce the inconvenience of not having access to a working washer and dryer while at the same time addressing Respondent’s need to maintain his/her postive reputation in the community/minimize potential loss of reputation in community and minimize the time and effort away from his shop.

Question 20

What should you explain to parties about a caucus before using one?

Answer 20

I’m going to meet with each of you “individually” or “separately” (do not use “privately”). I will remain impartial. I won’t reveal anything you say to me to the other party without your permission first.

Question 21

What is a caucus used for?

Answer 21

For the purpose of enhancing the probablity of a mutually acceptable agreement being reached between disputants. It is always a separate discussion between mediator and the individual disputing parties.

Question 22

What are some common reasons for using a caucus?

Answer 22

Party who is too angry and keeps interrupting, yelling, being otherwise disruptive.
Party who is experiencing embarassment, fear, or confusion to the point where he/she won’t speak openly in front of the other party.
Party is unreasonable in her demands; Parties on “same side” are not in agreement.
Stalemate reached in negotiations.
Party needs referrals to other services to help resolve the issues.

Question 23

What should a mediator do during a caucus?

Answer 23

Explain to the individual what prompted the mediator to ask for a caucus.
Depending on the item that prompted the caucus do one of the following: Caution the party about risk of continuing their behavior; help the party express throughts in a productive way; help party/s clarify/prioritzie their interests and explore creative alternative settlement possiblities to address their needs and the other’s needs; ask permission to play devil’s advocate to explore whether their position is realistic; discuss the BATNA/WATNA if no settlement reached; provide info on community resources.

Question 24

What should a mediator not do during a caucus?

Answer 24

Do not tell them what they should or should not accept; don’t tell them what a judge/court will decide; make it clear they have the right and resposbility to decide whether they accept or reject a proposal.

Question 25

What are examples of questions to ask during caucus?

Answer 25

What’s the logic behind your proposal? How does it meet your interest and the other party’s interest? What is your sales pitch to the other side for this?

Question 26

What are two things we usually do in a conflict situation because our bodies are programmed to respond that way?

Answer 26

fight (attack/defend) or flight (avoid)

Question 27

What is a joint problem statement?

Answer 27

An opportunity to summarize what they’re agreeing on and

Question 28

What is an open-ended question to use to begin the Telling the Story stage during an Eviction Mediation?

Answer 28

What from your perspective has led to your eviction?

Question 29

What is a closed-ended question to use during the Generation and Evaluation of Alternatives stage of an eviction mediation?

Answer 29

Are you hoping to stay in the property or leave?

Question 30

What are two tools of a mediator?

Answer 30

Mirror: Did you hear what you just said?
Lantern: Did you know that you’re only $62 apart? (illuminate to them)

Question 31

Name the 7 stages of mediation.

Answer 31

1) Introduction
2) Telling the Story (Problem Determination)
3) Summarization
4) Issue and Interest Identification (at a minimum get them through this stage before they go home
5) Generation and Evaluation of Alternatives
6) Agreement
7) Closure

Question 32

What should a mediator do during the Agreement Stage?

Answer 32

Great! Sounds like we have an agreement. Let’s just work out some of the details.

1) How will
2) Who do
3) How much
4) Of what
5) Where
6) By when
7) For how long

Question 33

What should a mediator do during the Closure Stage?

Answer 33

Congratulate them. Make sure they know how to contact each other and CMS if a problem arises. CMS will follow-up with them.

Question 34

What is the purpose of the 7 stages of the mediation process?

Answer 34

To provide a framework within which the mediator helps the parties to engage in meaningful negotiations, which will hopefully lead to a successful resolution of their dispute.

Question 35

What are 3 critical pieces of information that a mediator needs to uncover?

Answer 35

1) Problem Behavior (PB)
2) Other Effect (OE)
3) Emotional Effect (EE)

Question 36

What is a Problem Behavior?

Answer 36

a behavior that the other party is either doing or saying (or not doing or not saying) either in the past, present, or future that has had negative effect/s on the person.

Question 37

What is a common error in determining Problem Behaviors?

Answer 37

Forgetting that a PB has to be what the OTHER PARTY is doing or saying. A PB is not what the Dog, Children, etc. are doing or saying. You can get to the bottom of this by using a hypothesizing question.

Question 38

Why are Negative Effects important to identify?

Answer 38

Because they are the inarguable feelings that can cause the other to change and can start the healing process for the speaker (e.g., when someone says I’m angry, it helps to calm them down).

Question 39

What is a common error in determining Negative Effect/s?

Answer 39

The OE or EE has to be on the SPEAKER. If the OE is on someone else, you should convert it into an EE on the speaker.

Question 40

What are some questions a mediator can use to probe for Negative Effects?

Answer 40

First confirm that you have the correct PB: So, if I understand, your concerned that Joey isn’t going to school. Can you tell me more about his not going to school? How often is it happening?
Once you are clear on the PB, then clarify the EE and probe OE: So, it really worries you that Joey doesn’t go to school? Does Joey not going to school cause you anything other than worry?

Question 41

Is there always an OE?

Answer 41

No, there is always an EE but not always an OE.

Question 42

What should a mediator do when a party is saying NO to a proposed solution?

Answer 42

The mediator should probe the YES: If you said YES to putting Matt to bed at 9pm, what would be the effect on you?

Question 43

What is a formula for Summarizing the PB, EE, and OE?

Answer 43

If I’m understanding you correctly from your perspective, you’re feeling EE because of PB, which is also causing you OE.

Question 44

What is a formula for Summarizing the PB, EE, and OE?

Answer 44

If I’m understanding you correctly, from your perspective when Party A does PB, you feel EE and causes you OE.

Question 45

What is a Problem Behavior?

Answer 45

What the other party did or said that the speaker doesn’t like. It can also be something that wasn’t done or said (sin of omission). It can be past, present, or future in nature.
Example of PB: Jamie is not home by 11pm on the weekends.

Question 46

What is a Negative Effect?

Answer 46

A description of how the speaker was emotionally or otherwise affected by the PB.
Example of EE: Mother is frustrated with Jamie; Mother is worried about Jamie’s safety.
Example of OE: Mother is losing sleep; Mother could lose job because difficulty concentrating at work.

Question 47

Is a Mediated Agreement legally binding?

Answer 47

Only a court can determine if any agreement is legally binding. But you should assume the agreement could be found to be legally binding–so don’t enter the agreement if you’re not prepared to follow through with it. If you want to help ensure it is binding, take it to an attorney and have it put into the form of a more formal contract. Or if a court case is involved, have the attorney put it into the form of an agreed entry and file it with the court.

Question 48

What should a mediator do when a party uses negative interpretations?

Answer 48

The mediator should say: Can you help me understand from your perspective what she is doing or saying that to you seems lazy? OR: Can you help me understand from your perspective what she is doing or not doing that to you seems lazy?

Question 49

What should a mediator do when a party persists in using negative interpretations?

Answer 49

The mediator can try saying this:

What behavior that can be seen or heard makes you think she is being lazy?

Question 50

What should a mediator do when a party persists in using negative interpretations?

Answer 50

Can you tell me what’s happening specifically from your perspective? Is it happening at certain times? On certain days?

Question 51

What should a mediator do when a party persists in using negative interpretations?

Answer 51

I’m sorry, Mrs. Jones, I need you to back up and be more specific. Can you tell me from your perspective what Joe is specifically doing that to you seems lazy?

Question 52

What is one way to explain what a PB looks like–that is, to explain how a person can identify it?

Answer 52

A PB is something that 10 people could stand up and demonstrate. It’s a behavior that is identifiable, all of can do it.

Question 53

What is a common roadblock to determining the PBs?

Answer 53

The parties give the mediator a negative interpretation--a belief from their rulebook about what they think the problem is rather than the behavior. Example: 
She's a lousy mom; 
He's a bully; 
He doesn't trust me; 
He's a lousy employee.

Question 54

What is a common roadblock to determining the PBs?

Answer 54

The parties give the mediator generalizations.
Example:
He always arrives late;
She is constantly talking during class.
To deal with this the mediator should PARAPHRASE back to the party leaving out the generalization but noting the behavior has occurred more than once.

Question 55

Where do Issues come from?

Answer 55

Issues are derived from the PBs. PBs are the raw material for Issues. Issues are essentially the Topic Areas in dispute between the parties.

Question 56

Where do Interests come from?

Answer 56

Interests are derived from the EEs and OEs. EEs and OEs are the raw material for Interests.

Question 57

Which items, Interests or Issues, drive the creative solutions–the proposals?

Answer 57

Interests drive the creative solutions–the proposals.

Question 58

Why are the parties able to tolerate the neutrally stated Issues?

Answer 58

Because the Interests are listed with them.

Question 59

Is cheating on a test an example of a PB?

Answer 59

No, cheating is not a behavior that 10 people could stand up and demonstrate.

Question 60

What are 5 ways to Generate Alternatives?

Answer 60

1) Trading Proposals
2) Brainstorming
3) Brainwriting
4) Rolestorming
5) One text negotiating procedure

Question 61

What should a mediator be cautious and conscientious of doing during the Generating Alternatives stage?

Answer 61

The mediator should only deal with one issue at a time. The mediator should remind the parties: Let me reassure you that all agreements are tentative and revocable until we talk through all issues, which means that all agreements can be taken back until the end. The mediator should not throw out ideas but can make a suggestion if it is the form of a question: If you had enough room for your clothes would you hang them up? The mediator should not put anyone in the hot seat.

Question 62

Which party should the mediator start with when Trading Proposals during the Generating and Evaluating Alternatives stage?

Answer 62

The mediator should always start with the underdog during this stage. And, continue to start with the underdog on each issue–don’t take turns on the issues.

Question 63

Which steps should a mediator follow during a Trading Proposal scenario?

Answer 63

1) The mediator should state the issue and the parties’ interests.
2) The mediator should ask the underdog for the first proposal. Proposals should always contain behaviors that we can see or hear. Party should be asked to explain how the proposal meets the needs of everyone. Example: How do you think this will address your needs and Joe’s?
3) The mediator should ask clarifying questions to ensure full understanding of the proposal
4) The mediator should summarize the proposal and its explanation.
5) The mediator should ask the other side to respond to the proposed solution.
6) If other party generally agrees but requests minor modifications, ask the party how the modification meets the needs of all.
7) The mediator should seek other party’s response to the modifications.

Question 64

What should a mediator do when a party rejects a proposal?

Answer 64

The mediator should ask the person why the proposal in unacceptable and ASK FOR A COUNTERPROPOSAL that addresses the needs of both parties. Repeat the same steps as used with the underdog.

Question 65

What are the 5 categories of human need?

Answer 65

1) Safety
2) Control over one’s life (activities, time, physical space, possessions, and people we care about)
3) Acceptance (to belong)
4) Recognition (respect)
5) Economic Well-being

Question 66

What are the 5 steps in the conflict cycle?

Answer 66

1) Problem Behavior
2) Observer Negative Interpretation
3) Observer Threatened Needs
4) Observer Negative Emotions
5) Response Behavior

Question 67

Your personal conflict style and/or the style you use to solve the problem will determine what 2 things?

Answer 67

1) Likelihood that you’ll get your needs met

2) Chances for a future relationship with the person

Question 68

What are 2 common reactions to conflict (because our bodies are programmed to react this way)?

Answer 68

1) Fight

2) Flight

Question 69

Why do we avoid conflict (flight)?

Answer 69

We avoid conflict because we are fearful of the outcome; we feel lost because we don’t know what can be done; we believe conflict is bad (i.e., I’m a bad person if I have a conflict with someone).

Question 70

What are some key questions a mediator can use to elicit the story?

Answer 70

1) Help me understand what happened that makes you say that or feel that way?
2) What is it that you saw or heard that bothered you?

Question 71

What are some key phrases someone can use when in a conflict with another person?

Answer 71

1) Here’s my concern…

2) From my perspective…

Question 72

What questions can a mediator ask to elicit the “positive to achieve” or the “negative to avoid?”

Answer 72

1) Help me understand what you would accomplish by…?

2) Help me understand what you would avoid having happened if you didn’t…?

Question 73

What are some key questions a mediator can use when a party is trying to generate and evaluate a proposed solution?

Answer 73

1) How would you like to see it resolved?
2) Have you done anything about it yet?
3) What do you have to lose if you give it a shot?
4) It’s my understanding that…
5) My concern for you is that…

Question 74

What strategies can a mediator use when a party breaks the ground rules?

Answer 74

1) Acknowledge or empathize with apparent emotion
EXAMPLE: I appreciate that this can be very frustrating, can you hang in there with me?
2) Remind party of relevant ground rule and then ask for party’s recommitment to follow rule
3) Tell party how process is being negatively affected
4) Try shuttle diplomacy
5) Caucus to confront behavior more directly
EXAMPLE: If you want to vent right now, I’m listening but not in the other room
EXAMPLE: If this happens again, I will stop the session (use your assertiveness to get them to stop, but only in caucus)
If the party continues to break the ground rule then mediator should end the session.

Question 75

What strategies can a mediator displays angry or intimidating behavior, such as yelling, name calling, standing up, pounding the table, etc.?

Answer 75

1) NAME the apparent emotion and LOCALIZE the problem behavior
EXAMPLE: I can see that you’re very angry but I need to ask you if you would lower your voice (or refrain from name calling).
2) Mediator takes responsibility for needing a short break
EXAMPLE: I need to break; Never say “you need to break”
3) Use shuttle diplomacy
4) Caucus to more assertively confront the offending party

Question 76

What should a mediator do when a party is rambling?

Answer 76

1) Cease attentive body language (Reverse SOLER)
2) Cease verbal prompting, e.g., “uh-huh” or “ok”
3) Summarizing, ending with closed-ended questions
EXAMPLE: Is there anything else? How are your children (or another type of matter of fact question)?

Question 77

What does SOLER mean?

Answer 77

SOLER represents the steps you should take to demonstrate Attentive Body Language.
S- square oneself to the person to whom you’re speaking
O- open gestures (hands/arms)
L- lean forward
E- Eye contact
R- Relaxing tone and speed of voice

Question 78

What strategies should a mediator use when someone won’t talk?

Answer 78

1) Increase attentive body language (SOLER)
2) Increase attentive verbal prompting, “uh-huh” or “ok”
3) Summarizing, ending with open-ended questions
EXAMPLE: Why do you think that happened? Then, what happened? Tell me more? What’s your opinion?
4) Caucus to inquire about a possible underlying problem –be truthful with the party who won’t talk about why you chose to meet with them separately. And, after, be sure to caucus with the other party. If you don’t have anything to say to them, just summarize what they’ve said so far and tell them now we will return to a joint session again.

Question 79

What is the purpose of summarizing?

Answer 79

To make sure the parties know that you understand their concerns. To successfully summarize, a mediator will paraphrase what she/he heard the party say.

Question 80

What should a mediator do if one party is dominating the conversation?

Answer 80

1) Tactfully interrupt and briefly summarize back the relevant comments
2) Express concern at not hearing more from the other party
3) Directly ask other party for input
4) Shuttle diplomacy or caucus

Question 81

What strategy should a mediator use when a party expresses emotions that are inconsistent with his/her statements?
EXAMPLE: Give me the damn document! Mediator should make sure they are really comfortable with the document.

Answer 81

1) Tactfully point out statements that seem inconsistent with displays of apparent emotions: “I hear you saying yes to the proposal but your voice sounds angry.”
2) Caucus to more thoroughly explore concerns

Question 82

What strategy should a mediator use when a party is an inarticulate speaker?

Answer 82

1) Summarize back to speaker in clear/concise manner the information that he/she presented in a disjointed fashion
2) Ask targeted closed-ended questions to clarify vagaries
3) As a last resort, Hypothesize what you think the speaking is trying to say; present your hypothesis to the speaker; ask the speaker to confirm accuracy/completeness of/or correct your hypothesis

Question 83

What verbs should a mediator use to describe interests that have to do with money?

Answer 83

Minimizing or reducing

Question 84

What verb should a mediator NOT use to describe interests that have to do with money?

Answer 84

Preventing

Question 85

What verbs should a mediator use to describe interests that have to do with something INCREASING?

Answer 85

Maximizing
Enhancing
Protecting
Increasing
Establishing
Creating
Restoration of
Maintaining

Question 86

What verbs should a mediator use to describe interests that have to do with something DECREASING?

Answer 86

Minimizing
Reducing
Preventing
Decreasing
Compensation for
Maintaining

Question 87

What strategy should a mediator use when a party asks the mediator personal questions?
EXAMPLE: Well, wouldn’t you be angry if your child swore at you? What do you think of this deal?

Answer 87

1) Ignore
2) Answer, if no opinion required
EXAMPLE: Can brainstorm the pros and cons
3) Deflect w/statements (sounds like you’re concerned about…)
EXAMPLE: Sounds like from your perspective that when your kid yells at you it hurts your feelings and make you angry.
4) Counter with clarifying questions (am I understanding you to say that you’re concerned about…?)

Question 88

What strategy should a mediator use when a party cries?

Answer 88

1) Ignore
2) Provide facial tissue.
3) Normalize or empathize with feelings but remain impartial
EXAMPLE: You know this is a really tough subject to be dealing with; Boy this is a tough one.
4) Suggest everyone take a brief break
EXAMPLE: Folks, let’s take 5 minutes and come back.
5) Caucus to explore concerns
6) Shorten session

Question 89

What can a mediator say when a party cries?

Answer 89

You know, this is a really tough subject matter to be dealing with.
Boy this is a tough one.
Folks let’s take 5 minutes and come back.

Question 90

What can a mediator say when a party asks the mediator personal questions?

Answer 90

Sounds like from your perspective that when your kid yells at you it hurts your feelings and make you angry.

Question 91

What can a mediator say when someone won’t talk?

Answer 91

Why do you think that happened?
Then, what happened?
Tell me more?
What’s your opinion?

Question 92

What strategy should a mediator use when a party threatens to go to court?

Answer 92

1) Promptly ask for clarification:
Am I correct in understanding that you would like to try to avoid this outcome by resolving this matter through mediation?
But do I understand correctly that you cam her tonight to resolve this through mediation?
Are we game to keep trying tonight?

Question 93

What are the steps for conducting a caucus?

Answer 93

1) Without necessarily explaining why, announce that you’d like to talk with each of the parties SEPARATELY (avoid saying PRIVATELY).
2) Tell the parties that you will remain impartial during your individual discussions with the parties
3) Once in private, explain that you will not reveal anything said to you during caucus without the party’s permission (if information regarding fraud or some other problematic information is revealed in caucus, problem will need to be resolved or mediation must be terminated).
4) Explain what prompted you to ask for a caucus
5) Depending on the problem that prompted the caucus, use strategy to address it.