# Presentation: 282634

## BASIC MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE RESOLUTIONDepartment of Labor National Professional Development ForumSeptember 13, 2007Presenters: Vern Best – (vern.best@eeoc.gov)Veta Hurst – (veta.hurst@eeoc.gov)

## Alternative Dispute Resolution (ADR)

## Alternative Dispute Resolution (ADR)

- ADR uses a variety of voluntary techniques to resolve disputes rather than traditional adversarial methods, like litigation.

## ADR Techniques

- Mediation
- Facilitation
- Fact Finding
- Early Neutral Evaluation
- Ombudsmen
- Settlement Conferences
- Mini Trials
- Peer Review
- Combination of Techniques

## Alternative Dispute Resolution(ADR)

- EEOC’s regulations require agencies to establish or make available an ADR program for both:
- The pre-complaint process; and
- The formal complaint process.

## Core Principles of ADR

- Voluntary
- Neutral
- Confidential
- Enforceable

## Core Principles of ADR

- Voluntary
- Both parties must agree to participate in ADR.
- A settlement agreement must be acceptable to both parties.
- The parties may end ADR at any time.

## Core Principles of ADR

- Neutral
- An objective, impartial third party who has been trained in ADR techniques and EEO law.
- The neutral has no power to decide the dispute.

## Core Principles of ADR

- Confidential
- Confidentiality in any ADR proceeding must be maintained by the parties and the neutral.
- The terms of the settlement agreement will not be confidential unless the agreement contains a confidentiality provision.

## Core Principles of ADR

- Enforceable
- The settlement agreement must be in writing and signed by both parties.
- Settlement agreements are enforceable by the EEOC.

## Mediation Defined

- Mediation is a _**process**_ in which an _**impartial **_ third party assists disputants in finding a _**mutually acceptable **_solution to their dispute.
- Mediation is both _**voluntary **_ and _**confidential**_.

## Third Party Assistance

- Mediator as a Facilitator of Process
- Mediator as Neutral
- No stake in outcome
- No position on issues

## Mutually Acceptable Solution

- What would satisfy the parties?
- How can their needs be met?

## The Process is Voluntary

- No obligation to mediate.
- No obligation to reach an agreement.

## Confidentiality

- Parties sign confidentiality agreements.
- Why is confidentiality so important?
- Mediator bound by confidentiality.

## Factors Favoring Mediation

- 	Desire to avoid adverse precedent.
- 	No need to establish precedent.
- 	Need to avoid publicity or need for confidentiality or privacy.
- 	Desire for speedy resolution; need to avoid delay.

- Need to preserve continuing relationship.
- Recognition that emotions or hostilities may bar a settlement.
- Desire to minimize risk of imposed outcome.
- Need to reduce high cost of litigation.
- Existence of collateral issues that may enhance resolution in a mediation forum.

## Position Based vs. Interests Based

## Position vs. InterestsA Definition

**POSITIONS** are **what** a party feels, believes or wants.  They are proposed solutions for the party's issues.
**INTERESTS** are **why** a party feels, believes or wants a certain thing.  They describe what is important about the issue.  They may or may not have solutions yet, but they are open to possibilities.

## Questions to Determine a Party’s Interests

- What is important to you about this issue/ this action/ this party?
- What bothers you about this situation?
- How does the other party/ the action affect you?
- Could you explain why this issue/action means so much to you?

## Stages of Mediation

## Stages of Mediation

- Stage I
- Pre-Mediation & Opening the Session
- Stage II
- Identification of Issues
- Stage III
- Generating Options and Problem-Solving
- Stage IV
- Agreement Writing and Post-Mediation

## Stage I

**“****Setting the Tone”**
- This is the most important phase in the mediation process.  It provides you with the opportunity to make a good “first impression.”  How the mediator(s) performs during this phase will impact either positively or negatively on the remaining mediation process.

## Stage IIIdentification of Issues

- With mediator’s assistance, parties will:
- 		Identify issues in their disputes
- 		Express their views and perspectives
- 		Identify areas of agreement and disagreement 	on the issues
- 		Identify common ground
- Note:  this stage does not include reaching agreement or selecting options to resolve disputes.

## Elements of Stage IIJoint Session

**	****In opening, mediator will:**
**	****	********	****Explain what will happen at ****	****	****	****Stage II**
**	****	********	****Remind parties they will have ****	****	****time to present their ****	****	****	****	****perspectives**
**	****	********	****Establish ground rules**

## Mediation Ground Rules

- Established by mediator
- Whoever is speaking has floor, no interruptions
- Take notes and bring point up later
- Any party can stop process for break at any time or request a caucus
- Negotiate in good faith; our common goal is to resolve dispute
- Listen
- Follow ground rules and direction of mediator
- Other ground rules requested by parties
- Ask parties to commit to ground rules

## Elements of Stage IIJoint Session (continued)

- Complainant presents views
- Mediator **paraphrases** what s/he heard complainant say
- Respondent/Agency presents views
- Mediator **paraphrases **what s/he heard Respondent/Agency say
- Mediator asks parties to “add or clarify, not respond”
- Continue back and forth until parties feel they have expressed their views
- Mediator summarizes **common ground**

## Elements of Stage IIIndividual Sessions

- Individual Caucuses with each party
- Agenda setting for new Joint Session; What can be shared with other party?

## Elements of Stage IIJoint Session

- Return to Joint Session
- Repeat Elements of Stage II as needed

## Caucuses

- Used by mediator to:
- Gain control of mediation
- Allow party to vent or share information
- Ensure party heard/understood what was said
- Move beyond impasse
- Provide an opportunity for each party to explore strengths/weaknesses of case

## Caucuses(continued)

- Used by mediator to:
- Provide an opportunity for party to explore strengths/weaknesses of other party’s case
- Find out more on party’s interests
- Reinforce confidentiality
- Encourage information sharing
- Set agenda for next joint session
- Identify information that can be shared in joint sessions

## Validation

- Mediator acknowledges party’s views and feelings on the issue, while remaining neutral.
- “I understand you feel hurt and upset about...”
- “I understand your feelings in this matter.”
- “I can empathize with your concerns about what happened.”

## Open-Ended Questions

- To facilitate discussion, the mediator asks open-ended questions.
- “Help me understand what you meant by...”
- “Can you be more specific?”
- “What do you mean by that?”
- “What’s important to you?”
- “Why is that important to you?”

## Paraphrasing

- Paraphrasing is critical to the mediation process.
- Mediator re-states what was said in his/her own words
- Not verbatim, instead provide a shorthand summary which includes all-points made
- Ensures everyone heard what party intended to convey
- Parties may correct mediator’s paraphrasing

## Paraphrasing(continued)

- Builds trust, demonstrates mediator was listening and understood what was said
- Coming from neutral mediator, facilitates understanding by other party
- Provides “breather” as parties go back and forth expressing views

## Stage IIIGenerating Options &Problem-Solving

## Generating Options

- In individual sessions clarify what are the parties’ bottom line.
- Mediator may offer a solution not as an answer, but as an idea to think about.
- Ask parties “what if” questions.

## Generating Options

- Brain Storming Techniques
- May be used by the parties to develop options.
- The parties throw out ideas.
- After the ideas are on the table, the parties discuss.
- Hopefully this discussion of ideas will lead to an agreement.

## Generating Options

- Reality Testing
- Technique used by the Mediator to assist the individual party in evaluating the practicality and feasibility of their goals.
- Mediator enters evaluative mode. Discuss strength and weakness of individual Party’s case.
- Feedback
- Validate what party expressed through use of verbal or non-verbal response.
- Paraphrase re-state what party said in your own words.

## Stage IVAgreement Writing &Post-Mediation

## Basic Mediation Skills for Federal Agencieswww.eeoc.govwww.eeotraining.eeoc.gov