Problem Solving Mediation Training Manual

1. Problem Solving Mediation Training Manual Michelle Kaye Malsbury 2017-18

2. Overview • The problem-solving mediation model can produce the most efficient means by which organizations and parties in dispute can satisfy most of their interests or needs and cut or control unnecessary expenditures of precious resources (time and money). Problem-solving mediation aims at fostering better decision making and maintaining workplace relationships within the organization that can lead to improved employee morale and increased productivity. These strategies and procedures can be readily translated into most environments where the results can be easily seen and measured for their continued success. (Moore, 2003, p3).

3. Goals and Objectives • By the end of this workshop participants should be able to: (Moore, 2003, Ch.9, 10) • Build trust and cooperation between participants • Identify positions, needs, and interests of parties in conflict • Establish ground rules for behavior that is acceptable for the mediation process • Understand the role of “FACE”, trust, and emotions, in the problem-solving mediation process and workplace • Frame issues appropriately and practice active listening, restatement, reframing, and summarization • Identify and practice the use of open and closed ended questions that can deconstruct the conflict, probe for issues, feelings, and interests • Mediate professional or personal disputes through application of the problem solving approach • Determine a settlement arrangement that best meets the needs/positions/interests/issues of the parties in conflict • Envision a more positive future

4. What you can expect. • Participants will be asked to state what portions were most/least relevant to them at the end of each session. • Activities have been specially selected to aid in the assimilation of materials presented in these workshops and to present the real world application of the problem solving method for conflict resolution. • This two fold introduction of lecture combined with lesson specific activities that have been created and facilitated in tandem with each lecture is intended to provide all participants with the framework to facilitate their own mediations or provide them with ample review.

5. Conflict and Conflict Resolution • The ingredients for conflict can be found in almost every segment of society. Pruitt and Kim (2003, pgs.7-8) offer up conflict as being the perceived or actual divergence of parties interests. Dr. Weeks (1992, pgs.33-34) introduces diversity as a key ingredient in the creation of conflict. According to Katz and Lawyer (1987, p.93), “conflict is an expressed struggle in which two or more interdependent parties are experiencing strong emotion resulting from a perceived differences in needs or values.” Deutsch in Wilmot and Hocker (2007, p.8) addes that “conflict exists whenever incompatible activities occur…”. These differences or incompatibilities can lead to conflict.

6. Conflict Resolution Model

7. Conflict Resolution Styles • Collaborator – “acts not only on behalf of his or her self-interest but on behalf of the opposing party’s interest as well • Compromiser – “assumes a win/win solution is not possible and adopts a negotiating stance that involves a little bit of winning and a little bit of losing with respect to both the goals and the relationships of the involved parties” • Accommodator – “ maintains the interpersonal relationship at all cost, with little or not concern for the personal goals of the parties involved” • Controller – “takes the necessary steps to ensure that his or her personal goals are met, whatever the cost to the relationship involved.

8. The Two Dimensional Model for Conflict Resolution

9. Key Terms and Definitions: • Interests/Values/Needs-what parties think they want or desire (can be either specific or general) • Integrative Solutions-those that reconcile both parties’ needs/interests/values • Relative Deprivation-divergence between parties’ interests/needs/values • Zero-Sum Thinking-belief of one party or the other that their gain equates to a loss for the other party, encourages conflict because both sides believe that there is no integrative solution to their situation • Above definitions provided by Pruitt and Kim (2004, pgs.15-24) • Styles-people’s patterns of response to conflict behaviors; are developed over a person’s lifetime based on life experiences, family experiences, and personal philosophy • Tactics-each person’s individual approach toward conflict

10. Exercise 1: Conflict StylesHow do you handle conflict?

11. Conflict-Management Exercise (adapted from Barbara Stanford, Peacemaking: A guide to Conflict Resolution for Individuals, Groups and Nations (New York: Bantam, 1975), pp22-24: by permission of author, as referred to by Katz & Lawyer.) • Avoid the person. • Change the subject. • Try to understand the other person’s point of view. • Try to turn the conflict into a joke. • Listen to the other’s feelings • Admit that you are wrong, even if you do not believe you are. • Give in. • Demand more than you would actually settle for. • Use your perceived superior power to prevent the other party from reaching his or her goals. • Try to find out specifically what you agree and disagree on to narrow down the conflict. • Try to reach a compromise.

12. Conflict Management Exercise 1 Cont. • Pretend to agree. • Move toward problem solving as best you can. • Get another person to decide who is right. • Suggest a way in which both you and the other person would gain something. • Threaten the other person. • Fight it out physically. • try to clarify what the other’s goals are. • Whine or complain until you get your way. • Play the martyr: give in, but let the other person know how much you are suffering. • Apologize. • Give up some points in exchange for others.

13. Conflict Management Exercise 1 Cont. • Get the best deal you can not matter what. • Postpone it. • Go for a middle ground. • Avoid hurting the others feelings. • Get everything out in the open. • Sacrifice you interests for the relationship. • Split the difference. • Avoid controversy.

14. Role of Mediation in Conflict Resolution • Therefore, we offer the following as potential roles of mediation in conflict resolution: (Wilmot and Hocker, 2007, ch.2) • Helping parties to see the positive or productive side of conflict by bringing issues to the table and effectively confronting them • Helping parties in conflict to clarify their goals and expectations • Helping parties in conflict to better understand each other through reflective listening, saving face, summarization, etc. • Helping parties to view conflict through a different lens or another perspective; reframing the issues and depersonalizing the problems • Helping parties to share in responsibility for the problems and work together toward resolution • Helping parties to filter out what is not part of this conflict scenario • Helping parties to expound upon and evaluate their options for settlement or resolution • Helping the parties to experience personal growth, facilitate their ability to make better and more informed decisions • Helping parties to clarify their communication, redefine their issues in more positive terms, be aware of non-verbal communication between each other

15. Key Terms and Definitions: • Trust-a person’s capacity to depend on or place confidence in the truthfulness of another • Legitimacy-a party’s acceptance and recognition that an opponent, an opponent’s issues, and emotions are genuine, reasonable, and conform to accepted rules • Concilliation-a third party (mediator) minimizing unnecessary conflict and building a positive psychological relationship between disputing parties • Components of Emotion-behavioral or expressive (non-verbal or actions), psychological or physiological (feelings within the body itself), cognitive (connection between what is felt or needed and the issues/interests/needs) • Emotional Flooding-when emotions overload our bodily system • Emotional Contagen-transmission of feelings from one party to another • Unrealistic Conflict-no conditions for conflict are present yet the parties still act as if they are in dispute (examples can be restimulation of negative images/thoughts/feelings or negative transference of generalizations)

16. Principles and Ethics of Mediation Principles of mediation might also be called the ethics by which this process and its participants need adhere.

17. Basic Ethical Codes of Conduct • Conflicts of Interest: Mediators need disclose if he/she has any reason to believe that their involvement in the mediation process would create a conflict of interest. • Fairness and Impartiality: Mediators should have no personal stake or interest in the outcome of the mediation process. Mediators should also steer clear of showing any biases or favortism toward either of the parties. • Informed Consent: Mediators should ensure that the parties entering into mediation understand the nature of the mediation process (voluntary), role of the mediator, and the procedures/steps/settlement options that will follow. • Confidentiality: Mediators and the parties involved in the process of mediation will determine how the issues of confidentiality will be managed or arranged, and once agreed upon must be honored and adhered to by all parties. • Exemption to Confidentiality: Mediators will be clear in telling the parties in conflict that any threat to injure another party will be disclosed to the appropriate authorities. If through this process of mediation it is noted to involve an act of child abuse disclosure to those authorities will be made immediately (and the mediation process may stop).

18. Goals and Stages of Problem-Solving Medation • The ultimate goal of problem solving mediation is to reach an agreement. Problem solving mediation also helps parties in conflict to make better informed decisions, provides a neutral forum for discussion of issues and exploration of thoughts and feelings, portends a nature of cooperation or shared responsibility, flexibility, and willingness toward construction of win-win solutions to the parties issues and/or needs.

19. Those are as follows: 12 Steps/Stages (Moore, 2003, pgs.68-9) • 1. Establish relationships with the participants-includes educating the participants about the process of mediation, garnering a commitment to begin, building credibility, and rapport. • 2. Selecting a strategy • 3. Collection and analysis of data and background information • 4. Designing the plan; include moves and countermoves as well as contingent plans • 5. Building trust and eliciting cooperation • 6. Beginning the session; begin on a positive note and keep that tone as you move through the process, create any ground rules or guidelines for behavior. • 7. Define issues and setting an agenda • 8. Discovering hidden interests • 9. Generating options for potential settlement • 10. Assessing options and alternatives to those options • 11. Final Bargaining • 12. Formal settlement

20. Key Terms and Definitions: • Opening Statement-explanation of the mediation process. Should include what will happen during mediation, what the role of the mediator is, ground rules, how agreements are reached, voluntary/confidential, right to legal advice, etc.. (Specific examples of opening statements can be found in the handout for this section) • Mediator-uninvolved third party

21. Exercise 2: Opening Statements • Introduction of the mediator and, if appropriate, the parties (each to the other) • Commendation of the willingness of the parties to cooperate and seek a solution to their problems and to address their relationship issues • Definition of mediation and the mediator’s role • Statement of impartiality and neutrality • Description of the proposed mediation procedures • Explanation of the concept of the caucus (private meetings) • Definition of the parameters of confidentiality • Description of logistics, scheduling, and length of meetings • Suggestions for behavioral guidelines or ground rules • Answers to questions posed by the parties • Securing a joint commitment to begin

22. Mediation Models • There are many approaches that can be used for mediation. Approaches vary depending on the types and nature of the conflicts. Some of the available approaches toward mediation are as follows: transformative, narrative, and problem solving. For the purposes of this training, we will concentrate on the problem-solving mediation model.

23. Mediation Models Compared Transformative Narrative Narrative mediation has three phases: engagement-shapes the relationship between the participants in mediation, deconstructing the conflict-saturated story, and constructing an alternative story. • Transformative mediation works by changing the quality of parties’ conflict interaction and/or behaviors using recognition and empowerment techniques that shift the conflict dynamics from individualistic to relational or interactive.

24. Transformative Mediation • Critical points to note about Transformative Mediation are: • Changes the quality of conflict interaction between the participants • Recapture competence and connection (shifts from weakness to strength and empowerment) • Reverse the negative conflict cycle (shifts from self-centeredness to responsiveness and recognition) • Reestablish constructive interaction (turn away from alienation, restore strength and understanding) • Move forward in life (restored confidence in the ability to connect to others)

25. Narrative Mediation • Critical Points to note about Narrative Mediation are: • Helps parties in conflict to reconstruct their mutual stories from individual stories • Helps parties in conflict to see shared needs or goals

26. Theories of Conflict • There are three basic theories of conflict: power theory-protection and domination of one over another, rights theory-one party search for outcomes that vindicate their rights over the other, and needs theory-seeks resolution for conflicts that can meet their underlying needs and interests. (Moore, 2003, chs.4-6)

27. Key Terms and Definitions: Dominant Discourse-how disputes take shape: includes things taken for granted, language used to describe conflict, cultural patterns of exchange, discursive positions, and assumptions Alternative Discourse-construction of a new story or new position

28. Role of the Mediator • Mediators are usually neutral third parties with no interest or attachments to the conflicts they are charged to intervene on behalf of. (Moore, 2003, pgs.15-18) • Therefore, mediators can offer new or unbiased insights into conflicts or issues that create conflict. Parties in conflict need be willing and able to accept the mediator as impartial and helpful in reaching resolution of their specific issues in conflict.

29. Key Terms and Definitions: • Impartiality-absence of bias • Neutrality-actions taken by mediator and parties in conflict by opening closed lines of communication, and helping the parties in conflict to explore and find mutually satisfying solutions that ultimately can improve the relationships between parties in conflict.

30. Active Listening • Active listening is (Moore, 2003, p.132) “an exact statement or paraphrase of what the respondent has said. The restatement often focuses on the emotional content of a message and is more of a response than a question.” Mediators can actively listen by using the following techniques: direct questions, summarization, inferred clarification questions, reframing, repetition, or restatement.

31. Face • Face has to do with how people behave in public vs. their private lives. Every person has face. Face is how we each present ourselves and how that impression is absorbed and used by others. Faces is shaped by our interaction with others. Face differs between societies and cultures, genders and ethnicities, economic abilities and educational backgrounds. Mediators need be attuned to how face can help them to understand certain conflict situations and roles of those in conflict circumstances. Face can be manipulated by any number of strategies, i.e. face granting, face saving, or even face threatening. (Georgeakopoulos, 2008, Week 3 Lecture and handout)

32. Key Definitions and Terms: • Denial-the first stage of reacting to conflict may be to deny that there is conflict • Anger-this stage is where the parties in conflict will experience the full range of emotions that may be appropriate to their specific conflict, i.e. abandonment, loss, fear, entitlement, etc. • Acceptance-when anger gets no reaction acceptance can begin to siphon in to parties in conflict. This marks the point when each person is ready to work toward resolution of their specific issues/needs/goals. • Acceptance-when anger gets no reaction acceptance can begin to siphon in to parties in conflict. This marks the point when each person is ready to work toward resolution of their specific issues/needs/goals.

33. Dialogue vs. Debate Dialogue Debate Ignores other parties thoughts or feelings Presents the problem as personal Defends only one side of a solution and assumes there is only one right answer Creates resistance to change and stymies mutual collaboration Assumes only one side can win and the other must lose • Listening to discover from the other • Acknowledges thoughts and feelings, is relationship building in essence • Focuses on depersonalization of the problem • Assumes there is a shared solution to the issues or problems • Allows parties in conflict to admit to their mistakes and move toward forgiveness • Creates open exchanges between the parties in conflict • Helps to create mutually workable solutions to issues or problems • Assumes both sides can win • (Cloke, 2001, p.176)

34. Key Terms and Definitions: • Testing-listening carefully to statements made by parties and then feeding them back as expressed • Active Listening-a communication technique whereby the mediator decodes the verbal message of one party, leaves in the emotion that was expressed, selects a phrase with the approximate same meaning and emotional intensity as the party and restates it as a message to the other party. The mediator then waits for response or confirmation from the other party or invites clarification from the sender. (Please see handout for examples of active listening)

35. Exercise 3: Active Listening (Time: 45 minutes) The following formulas can be used: • “You feel (feeling word) because (content).” • “You feel ____________ about ___________.” • “You feel ____________ when ___________.” • “You feel ____________ that ____________.” Think about a specific situation. What was the content of that situation? How did you feel? What did it mean to you?

36. Reframing • Moore (2001, p.237) states that the purpose of reframing is to “clarify and uncover….the meaning, needs, interests, or concerns”of an unproductive frame into a positive frame that can then be addressed by the parties in conflict. Moore goes on to say that there are three levels of reframing: detoxification, definitional, and metaphorical. (p.238) • Reframing expounds upon the issues and provides the parties in conflict with a wider range of alternatives. Mediators need to state each problem clearly and in such a fashion as to not favor one party over another. Moore, 2001, (p.243) Mediators can do this by taking the personal aspect of the problem out of the equation and by avoiding any trigger words that might convey one side was wrong in this situation.

37. Exercise 4: Reframing • Examples: retrieved from http://www.psychdaily.com/encyclopedia.php?term=Reframing • Original: I made a mistake, therefore I'm stupid. • Reframe: I tried something that didn't work, so next time I'll try something else. • Original: Bob is so lazy; I wish he would do something productive. • Reframe: Maybe Bob does get things done, just in a different way than I do.

38. Instructions: Review the examples of reframing. Reframe the next set of sentences. • Reframe the following: • Original: That girl is so disorganized. I don’t see how she finds anything on her desk. • Reframe: • Original: How come everyone that ends up in jail has they same story; I’m innocent. • Reframe: • Original: No matter how hard I try, I can never build a lasting relationship. • Reframe: • Original: Everyone says I am a control freak. I guess that means I am not a team player • Reframe: • Original: We aren’t going to be able to work this out; he doesn’t love me anymore. • Reframe: • Original: Every time I get a call from this person, they always need something. What is it now? • Reframe:

39. Negotiation • The goal of negotiation is to arrive at a mutually satisfactory decision for all parties in dispute. Sometimes negotiation entails compromise or concessions; usually this is in order that most interests might be best served. • In order to reach agreement negotiators may look for common interests or bargaining chits. In most instances negotiation means a willingness to compromise and leave the door open toward locating options that are acceptable to both parties. Bargaining can be either distributive or integrative. According to Jeong (2000, p.170) distributive means that one party wins and the other loses. With integrative bargaining the negotiator (p.171) looks for settlement options that can satisfy one side’s goals without harming the other, a sort of fixed pie.

40. Goals of Negotiation: • Clarification of issues • Expansion of possible options for settlement • Full disclosure • Achievement of settlement

41. Negotiation Styles • Irving and Benjamin (2002, pg.27) use the Harvard Model of Negotiation as a possible approach or style for negotiation. This style attempts to dissect the parties in conflict interests from their positions. Positional takes into account only what one hopes to gain from this negotiation and do not take into account what each party needs/requires for settlement. Irving and Benjamin note that this style can be problematic if the positions of the parties in conflict are too divergent. Therefore, they invite the parties in conflict to talk about their shared interests in hopes of finding what is termed BATNA or best alternative to a negotiated agreement. Negotiators who use this approach are largely successful because this style also attempts to uncover hidden interests that normally would not be seen, but can be extremely helpful if negotiation is to be successful.

42. Power Based v. Rights Based Power Based Rights Based Rights based negotiation (Irving and Benjamin, 2000, p.127) is founded in rule of law. Much of this approach is posturing of participants for what they are legally entitled to or prior legal precedents. This approach does limit power on each side of the conflict to that which is standardized and the parties are expected to be truthful and follow all rules. If rules are broken there are sanctions imposed. Most parties who do not seek mediation find themselves in this spot. The shortfall of this approach is that is follows the rules and does nothing to address relationship issues. • Power based negotiation (Irving and Benjamin, 2000, p.126) is considered to be zero-sum logic which means that one party has an advantage over the other. Negotiators in this situation advise participants to take extreme opening positions such that in the end they might reach closure between these extremes or the midground. Parties are allowed to use their powers of persuasion, coercion, delusion in order to make the other side give in to their demands. The problem with this approach is that the advantage is clear for the side that holds the most power or resources. Despite this shortcoming this approach toward negotiation does empower the parties in conflict to be confidant, clear about their goals, and self assured.

43. Interest Based v. Transformative Interest Based Transformative Transformative negotiation (Irving and Benjamin, 2000, p.129) hinges on two key features: recognition and empowerment. Empowerment lends credence to ones self-awareness, confidence, and self-efficacy. • Interest based negotiation (Irving and Benjamin, 2000, p.128) can also be termed collaborative negotiation or integrative or problem solving or an array of other names. This approach is founded on four premises. The first takes the people out of the problem or issue. Each party is invited in recognize and respect the feelings of the other side and to avoid blame. Parties are tasked with locating their underlying needs or interests and to see if there is any overlap.

44. Exercise 5: Negotiation • Instructions: Think about what you have learned thus far and discuss how you might conduct a mediation negotiation. We have provided a few questions to help you get to BATNA. • Reality Testing Questions: • What do you see as the strengths of your case? • What do you see as the weaknesses of your case? • What do you see as the strengths of the other's case? • What do you see as the weaknesses of the other's case? • What is your best-case scenario if you don't resolve this with negotiation? • What is your worst-case scenario if you don't resolve this with negotiation? • What is the most likely scenario if you don't resolve this with negotiation? • Is that better than the most likely negotiated settlement?

45. Settlement/Agreement • Not every conflict results in a negotiated agreement. Often times, disputants end up in a dead-lock; they can not come to a mutually satisfied agreement. Mediators must take care to keep the lines of communication open and try different tactics and/or strategies to come to help foster resolution.

46. Eight factors that are important for the successful implementation of a settlement: • A consensual agreement about the criteria used to measure successful compliance • The general and specific steps required to implement the decision • Identification of the people who have the power to influence the necessary changes • An organizational structure (if applicable) to implement the agreement • Provisions that will accommodate both future changes in the terms of the agreement and changes in the disputing parties themselves • Procedures to manage unintended or unexpected problems that may arise after the settlement or violations of the settlement that may arise during implementation • Methods to monitor compliance, as well as the identity of the monitors(s) • Determination of the monitor’s role (for example, whistle-blower or enforcer)

47. Legally Binding • Before disputants reach an agreement, they must understand that once the document is written they have three days to mull over their decisions. Once the document is finalized, it becomes a legally binding instrument that can be enforced in a court of law. This is why disputants must enter into mediation honestly and be forthright in their efforts to manage and resolve their conflict.

48. References • Bush, Robert A. Barusch and Folger, Joseph P. (2005). The Promise of Mediation. Jossey-Bass: San Francisco, CA • Cloke, Kenneth (2001). Mediating Dangerously: The Frontiers of Conflict Resolution. Jossey-Bass: San Francisco, CA • Georgeakopoulos, Alexia PhD. (2008) CARD 5100 handouts • Irving, Howard H. and Benjamin, Michael (2002). Therapeutic Family Mediation: Helping Families Resolve Conflict. Sage Publications: Toronto, Canada • Katz, Neil H. and Lawyer, John H. (1992). Communication and Conflict Resolution Skills. Kendall/Hunt: Dubuque, IA • Moore, Christopher W. (2003). The Mediation Process: Practical Strategies for Resolving Conflict. (Third Edition) Jossey-Bass: San Francisco, CA • Phillips, Barbara Ashley (2001). The Mediation field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization. Jossey-Bass: San Francisco, CA • Weeks, Dudley PhD. (1992) The Eight Essential Steps To Conflict Resolution: Preserving Relationships at Work, at Home, and in the Community. Tarcher-Putnum: New York, NY • Wilmot, William W. and Hocker, Joyce L. (2007). Interpersonal Conflict (Seventh Edition) McGraw-Hill: New York, NY • Winslade, John and Monk, Gerald (2001). Narrative Mediation: A New Approach to Conflict Resolution. Jossey-Bass: New York, NY