Sie sind auf Seite 1von 105

Community Mediation:

Theory and Practice

PACS6928
Postgraduate Peace and Conflict Studies
Summer School, 2010

COURSE MANUAL
STAFF
Abe Quadan (Coordinator)
Kathleen Dan
VENUE
Eastern Avenue Seminar Rooms 405, 406 and 407

The University of Sydney


CentreforPeaceandConflictStudies
Mackie Building K01
NSW 2006 Australia

Email: arts.cpacs@sydney.edu.au
http:// sydney.edu.au/arts/cpacs

Tel: + 61 (2) 9351 7686


Fax: + 61 (2) 9660 0862

Community Mediation

The University of Sydney


22-26 February 2010

Course Co-ordinators
Abe Quadan & Kathleen Dan

1 Community Mediation

University of Sydney

CONTENTS
Page
1. INTRODUCTION
Welcome
The course co-ordinators
Workshop outline
Role play guidelines
Giving feedback

5
6
7-11
12
13

2. ACCREDIATION
Approval standards

15-20

3. ASSESSMENT
Assessment requirements
Essay questions
Reading List
Assessment criteria
Codes of practice & policy

22
23
24-26
27
28-29

4. COMMUNITY MEDIATION
The Foundation Blocks of Mediation
Conflict
What is mediation?
Interest based mediations
Positions vs. Interests
What is the role of the mediator?
Procedural types of mediation
The mediation process an overview
Stages of mediation
Mediation in action
Fishbowl
The mediation process
Stage 1: Pre-mediation
Pre-mediation
Stage 2: The opening statement
The opening statement
Stage 3: Story telling
Story telling

2 Community Mediation

31
32
33
34
35
36-37
38
39
40
41
42-43
44
45-46
47
48

University of Sydney

Page
The mediation process
Stage 4: Summaries
The Summaries
Stage 5: Agenda setting
Listing items for discussion
Reframing
Common agenda items
Reframing
Reframing
Skills practice: reframing
Stage 6: Exploration
Exploration
Stage 7: Private sessions
Private sessions
Encouraging resolution
Stage 8: Negotiation
Negotiation
Listening & summarising
Tracking progress
Stage 9:Agreement
Agreement
Stage 10: Closure
Closure
Mediator skills
Questioning
Helpful questions
Skills practice: questioning
Debriefing
Ethics
Ethical practice
Ethical Standards for mediations

6. ROLE PLAYS
The Will
The Partnership
The Marriage
The Baby
The Fence

3 Community Mediation

49
50
51
52
53
54
55
56
57
58
59-61
62
63-64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79-80
81-85

87
88
89
90
91

University of Sydney

Page
The Job
The Flatmates
The Renovation

7. COACHING
Feedback on mediation simulation

4 Community Mediation

92
93
94

96-102

University of Sydney

Introduction

5 Community Mediation

University of Sydney

WELCOME
Welcome to Community Mediation. This unit of study will focus on the theory and
practical application of facilitation, communication and conflict resolution skills in a
community mediation context. You will learn about various models of community
mediation and will become skilled in the stages of community mediation through role
plays and simulation exercises. Successful completion of this unit of study will equip
you for possible accreditation as a community mediator in Australia, as well as
providing you with transferable skills and knowledge about mediation.
This 5-day course in Community Mediation will provide you with:
a structure for conducting mediations
the ability to adopt an impartial role as mediator
a framework on which to build further skills.
At the end of this course you should be able to plan and set up a mediation session
and manage the various stages of the process competently. You will also be aware
of the skills and strategies required for all stages of the process.
The course also provides an excellent conceptual framework and general skills for
people engaged in work related to mediation without necessarily playing the formal
role of mediator.
The learning approach
This course is designed to be experiential and interactive. It includes:

formal presentations and demonstrations


group discussion and debriefing
structured exercises
simulated role plays
coaching and feedback

As part of this unit you will have the opportunity to be individually coached by
experienced mediators who are trained to supervise role plays and provide
constructive feedback. Their role is to support and coach you as you develop new
skills.
To learn effectively however, you need to be able to take risks. In order to do this it
will be important to demonstrate:

respect for each others views and opinions


willingness to participate along with a right to pass
openness to feedback.

Overall, relax and enjoy the learning experience.

THE COURSE CO-ORDINATORS


6 Community Mediation

University of Sydney

ABE QUADAN
Abe has been an ADR practitioner for over 25
years. He has a Master of Dispute Resolution and
an Associate Diploma in Welfare Work. Abe is an
accredited mediator, mentor and trainer as well as
an accredited Transformative Justice practitioner.
Abe has extensive management experience with the
Department of Community Services with whom he
still works. In addition to this he delivers mediation
skills workshops to organisations such as the
Centre for Peace and Conflict Studies (CPACS), University of Sydney.
Abe is a member of the CPACS Council and is an Executive Member of the Sydney
Peace Foundation.

KATHLEEN DAN
Kathleen has a number of years experience as a
social worker and manager in educational and child
protection settings. She holds graduate and postgraduate qualifications in social work, adult
education and theatre studies. She is a nationally
accredited mediator and has over 18 years
experience in facilitating and coaching in both the
private and public sectors.
In her consultancy role Kathleen facilitates
programs in: mediation, management development,
negotiation, communication and career development. She also conducts mediations
and provides coaching in conflict management.
Companies that have retained her services include: University of Western Sydney,
University of Sydney, Charles Darwin University, Department of Community Services
(DoCS), Catholic Education Office, Westpac Corporation and MBF.

7 Community Mediation

University of Sydney

Day 1

Session

INTRODUCTION

Group introductions
Course outline
Course requirements re: assessments
Accreditation standards

THE FOUNDATION
BLOCKS OF MEDIATION

Interest based negotiations


Negotiations styles
MORNING TEA

THE FOUNDATION
BLOCKS OF MEDIATION

What is mediation
Other forms of ADR
The mediation process
The role of the mediator
LUNCH

THE PROCESS IN
PRACTICE

Fishbowl mediation demonstration (part 1)

AFTERNOON TEA
THE PROCESS IN
PRACTICE

Fishbowl mediation demonstration (part 2)


Debrief

STAGE 2
Theory and practice

The opening statement

8 Community Mediation

University of Sydney

Day 2

Session

9.00 am
REVIEW OF DAY 1

STAGES 3, 4 & 5
Theory

Parties opening statements


Summarising
Agenda setting
MORNING TEA

STAGES 3, 4 & 5
Practice

Scenario 1 (a) small groups


Small group debrief
Large group debrief

STAGE 6
Theory

Exploration

STAGE 6
Practice

Scenario 1 (b) small groups


Small group debrief
Large group debrief
LUNCH

STAGE 7
Theory

STAGE 7
Practice

Private Sessions

Scenario 1 (c) small groups


Small group debrief
Large group debrief

AFTERNOON TEA
STAGE 8 & 9
Theory

Joint negotiation session & agreement

STAGE 8 & 9
Practice

Scenario 1 (d) small groups


Small group debrief
Large group debrief

5.00 pm
9 Community Mediation

University of Sydney

Day 3

Session

REVIEW OF DAY 2
9.00 am

MEDIATOR SKILLS

Reframing
Questioning
Reality testing
Option generating
Dealing with impasses
MORNING TEA

CO-MEDIATION

The roles of co mediators


Scenario 2 small groups
Small group debrief
Large group debrief
LUNCH

CO-MEDIATION

Scenario 3 small groups


Small group debrief
Large group debrief

AFTERNOON TEA
STAGE 1

10 Community Mediation

Pre-mediation the preliminary conference

University of Sydney

Day 4

Session

REVIEW OF DAY 2
9.00 am

ETHICAL
CONSIDERATIONS

Professional practice for mediators

REVIEWING THE
MEDIATION PROCESS

What is the mediator doing at each stage of the


process?
What is the impact on the parties when this
stage is being done way?

MORNING TEA
CO-MEDIATION

Scenario 4 small groups


Small group debrief with coach
LUNCH

CO-MEDIATION

Scenario 5 small groups


Small group debrief with coach

AFTERNOON TEA
DEBRIEF

Debrief
Feedback from coaches

5.00 pm

11 Community Mediation

University of Sydney

Day 5

Session

COACHES
INTRODUCTION
8.30 am

SOLO MEDIATION

Scenario 6 small groups


Small group debrief with coach
MORNING TEA

SOLO MEDIATION

Scenario 7 small groups


Small group debrief with coach
LUNCH

SOLO MEDIATION

Scenario 8 small groups


Small group debrief with coach

AFTERNOON TEA
DEBRIEF
5.00 pm

12 Community Mediation

Debrief
Feedback from coaches
Wrap up
Evaluations

University of Sydney

ROLE PLAY GUIDELINES


As part of your assessment requirements you need to participate in at least 9 role
plays and in at least 3 of these you are required to take the role of mediator. In the
others you will take on the role of a party.
On both Day 4 and Day 5 you will have the opportunity to conduct a1.5 hour
mediation one where you will be a co-mediator and the other a solo mediator.
During these mediations you will receive detailed written feedback from a coach who
is an accredited mediator. Again, you will also play the role of a party in the other
mediations during these 2 days. This role is also an important learning experience
and needs committed participation.
Most people find the role play component one of the most useful aspects of the
course even though for many people it can be unnerving. To help make the role play
aspect of the course as beneficial as possible please consider the following pointers:

Prepare for the role be it the mediator or the party, as much as you can. You
will be given information about each mediation including Common Facts, known
to all parties, and Individual Facts for the party you are playing.
Allow the thespian in you to emerge. The more real you are in the party role,
the easier the role play becomes. Feel free to improvise to an extent that is
consistent with the character.
Pace the information you reveal. As a party avoid giving out all your
information at once. Allow the mediator to ask questions and create opportunities
for you to explore whats important for you.
Manage your expectations. You do not need to reach a signed agreement nor
is that expected. Mediation in real life generally take several hours so be realistic
about what you might achieve in an hour and a half.
Relax & enjoy. Remember that this is a learning experience. If you feel a little
apprehension be assured you are in good company its very normal. As Susan
Jeffers says, feel the fear and do it anyway.

13 Community Mediation

University of Sydney

GIVING FEEDBACK
Throughout the course you will have the opportunity to provide feedback at the end
of each role play. Your feedback is a gift and therefore needs to be delivered in the
best possible way. Constructive feedback will help others develop in their role as
mediator. Positive feedback without detailed examples can be easily interpreted as
platitudes.

Refer to the behaviour specifically not the person [focus on behaviour not the
person]

Base feedback on direct observations rather than inferences

Use concrete behavioural descriptions not judgements to describe both positives


and negatives.

Use graduations, not "all", "none, never"

Speak in here and now

Share ideas rather than giving advice

Give feedback that is useful to the receiver and about things they can change,
rather than getting everything off your own chest

Give the amount of information that can be used not the amount that can be
given [overload]

14 Community Mediation

University of Sydney

Accreditation

15 Community Mediation

University of Sydney

MEDIATOR APPROVAL STANDARDS


FOR MEDIATORS SEEKING APPROVAL UNDER THE NATIONAL MEDIATOR
ACCREDITATION SYSTEM
http://www.ama.asn.au/Final_Approval_Standards_200907.pdf

Approval Standards
1 Application
1) These Approval Standards apply to any person who voluntarily seeks to be
accredited under the National Mediator Accreditation System (the system) to act as
a mediator and assist two or more participants to manage, settle or resolve disputes
or to form a future plan of action through a process of mediation. Practitioners who
act in these roles are referred to in these Approval Standards as mediators.
2) The Approval Standards:
a) specify requirements for mediators seeking to obtain approval under the
voluntary national accreditation system; and
b) define minimum qualifications and training; and
c) assist in informing participants, prospective participants and others what
qualifications and competencies can be expected of mediators.
3) As a condition of ongoing approval, mediators must comply with the Practice
Standards and seek re-approval in accordance with these Approval Standards every
two years. These Approval Standards should be read in conjunction with the Practice
Standards that apply to mediators.
4) Mediation can take place in all areas where decisions are made. For example,
mediation is used in relation to commercial, community, workplace, environmental,
construction, family, building, health and educational decision making. Mediation
may be used where there is conflict or may be used to support future decision
making. Mediators are drawn from diverse backgrounds and disciplines. Mediation
may take place as a result of Court or Tribunal referral, pre-litigation schemes,
through industry schemes, community-based schemes as well as through private
referral, agency, self or other referral. These Approval Standards set out minimum
voluntary accreditation requirements and recognise that some mediators who
practice in particular areas, and/or with particular models, may choose to develop or
comply with additional standards or requirements. Mediators may practice as solo
mediators or may co-mediate with another mediator.
2 Description of a Mediation Process
1) A mediation process is a process in which the participants, with the support of a
mediator, identifies issues, develop options, consider alternatives and make
decisions
16 Community Mediation

University of Sydney

about future actions and outcomes. The mediator acts as a third party to support
participants to reach their own decision.
2) The mediator[s] may assist the participants to:
a) communicate with each other; and
b) identify, clarify and explore disputed issues; and
c) generate and evaluate options; and
d) consider alternative processes for bringing any dispute or conflict to a
conclusion; and
e) reach an agreement or make a decision about how to move forward and/or
enhance their communication in a way that addresses participants mutual
needs with respect to their individual interests based upon the principle of self
determination.
3) Mediation processes are primarily facilitative processes. The mediator provides
assistance in managing a process which supports the participants to make decisions
about future actions and outcomes.
4) Some mediators may also use a blended process that involves mediation and
incorporates an advisory component, or a process that involves the provision of
expert information and advice, where it enhances the decision-making of the
participants provided that the participants agree that such advice can be provided.
Such processes may be defined as conciliation or evaluative mediation.
Practitioners who manage such processes and provide expert advice are required to
have appropriate expertise (see Section 5 (4) below) and obtain clear consent from
the participants in respect of undertaking any blended advisory process.
5) Mediation processes are a complement to, not a substitute for, the need for
participants to obtain individual legal or other expert advice and support. Mediation
processes may not be appropriate for all individuals or all circumstances.
3 Approval Requirements for Mediators
1) A mediator manages processes aimed at maximising the participants own
decision making. The mediator must have personal qualities and appropriate life,
social and work experience to conduct the process independently and professionally.
To be accredited, the Recognised Mediation Accreditation Body (RMAB) requires a
mediator to provide the following:
a) evidence of good character (see Section 3(2) below); and
b) an undertaking to comply with ongoing practice standards and compliance
with
any legislative and approval requirements (see Section 3(3) below); and
c) evidence of relevant insurance, statutory indemnity or employee status (see
Section 3(4) below); and
d) evidence of membership or a relationship with an appropriate association
or organisation that has appropriate and relevant ethical requirements,
complaints and disciplinary processes as well as ongoing professional support

17 Community Mediation

University of Sydney

(see Section 3(5) below); this may be the RMAB itself but may also include
other relevant memberships or relationships; and
e) evidence of mediator competence by reference to education, training and
experience (see Section 4 below).
2) RMABs require mediators who apply to be accredited to provide evidence of good
character. With respect to the requirement to be of good character, RMABs may,
for example, request mediators to:
a) provide evidence that they are regarded as honest and fair, and that they
are regarded as suited to practice mediation by reference to their life, social
and work experience, for example, by seeking references from two members
of their community who have known them for more than three years; and
b) show that they can meet the requirements of a police check in the State or
States or Territory or Territories in which they practise; and
c) show that they are without any serious conviction or impairment that could
influence their capacity to discharge their obligations in a competent, honest
and appropriate manner; and
d) show that they are accredited with an existing scheme that has existing
good character requirements that they comply with (for example, by referring
to existing Law Institute, Law Society, Bar or Family Dispute Resolution
Practitioner accreditation where relevant); and
e) satisfy the RMAB that they do not come into the category of a prohibited
person (or its equivalent) as defined in a particular jurisdiction and also not be
disqualified to practice by another professional association relating to any
other profession (for example, a Law Society or a Medical Association) or
must explain to the RMAB the circumstances under which they have
previously been removed or suspended from acting as a mediator under
these standards.
3) The mediator must undertake to the RMAB to comply with any relevant legislation,
these Practice and Approval Standards and any other approval requirements that
may relate to particular schemes.
4) In respect of the insurance, indemnity or employed status requirements, the
mediator must provide the RMAB with evidence of their current status. This may be
provided in a range of ways, for example, by a letter setting out any relevant
employee status, or by showing how indemnity applies, or by showing proof of
membership that incorporates insurance status, or by the mediator naming their
insurer, providing an insurance policy number and its expiry date or, through some
other relevant document. If a mediator wishes to practice using a blended model
and in an advisory manner, the mediator must hold additional insurance relating to
the provision of expert advice or must indicate how existing insurance, statutory or
other immunities apply.
5) An RMAB must have the following characteristics:
a) more than ten mediator members accredited under the National Mediator
Accreditation System; and

18 Community Mediation

University of Sydney

b) provision of a range of member services such as, an ability to provide


access to or refer mediators to ongoing professional development workshops,
seminars and other programs and debriefing, or mentoring programs; and
c) a complaints system that either meets Benchmarks for Industry-based
Customer Dispute Resolution or be able to refer a complaint to a Scheme that
has been established by Statute; and,
d) sound governance structures, financial viability and appropriate
administrative resources; and,
e) sound record-keeping in respect of the approval of practitioners and the
approval of any in-house, outsourced or relevant educational courses; and,
f) the capacity and expertise to assess training and education that may be
offered by a range of training providers in respect of the training and
education requirements set out in these Standards.
An RMAB can be a professional body, a mediation agency or Centre, a Court or
Tribunal, or some other entity.
4 Training and Education
1) Mediators must demonstrate to an RMAB that they have appropriate competence
by reference to applicable practice standards, their qualifications, training and
experience. It is not necessary for the RMAB to provide education and training to
individual mediators (see Section 5 below). Training and education may be provided
by organisations other than RMABs, such as, industry training providers, universities
and other training providers.
2) A mediator is required to meet the threshold approval requirements detailed below
(see Section 5 below), as well as ongoing professional education requirements. A
mediator who uses a blended process and provides information or advice in the
context of a blended process must be competent to do so and possess the
appropriate skills, knowledge and expertise.
5 Threshold Training and Education Requirements
1) Unless experience qualified (see Section 5 (3) below), from 1 January 2008, a
mediator must have completed a mediation education and training course that:
a) is conducted by a training team comprised of a at least two instructors
where the principal instructor[s] has more than three years experience as a
mediator and has complied with the continuing accreditation requirements set
out in Section 6 below for that period and has at least three years experience
as an instructor; and
b) has assistant instructors or coaches with a ratio of one instructor or coach
for every three course participants in the final coached simulation part of the
training and where all coaches and instructors are accredited; and
c) is a program of a minimum of 38 hours in duration (which may be
constituted by more than one mediation workshop provided not more than
nine months has passed between workshops), excluding the assessment
process referred to in Section 5(2) below; and

19 Community Mediation

University of Sydney

d) involves each course participant in at least nine simulated mediation


sessions and in at least three simulations each course participant performs
the role of mediator;and
e) provides written, debriefing coaching feedback in respect of two simulated
mediations to each course participant by different members of the training
team.
2) Unless experience qualified (see Section 5(3) below), from 1 January 2008, a
mediator must also have completed to a competent standard. a written skills
assessment of mediator competence that has been undertaken in addition to the 38hour training workshop referred to above, where mediator competence in at least
one1.5 hour simulation has been undertaken by either a different member of the
training team or a person who is independent of the training team. The written
assessment must reflect the core competency areas referred to in the Practice
Standards. The final skills assessment mediation simulation may be undertaken in
the form of a video or DVD assessment with role players, or as an assessed
exercise with role players. The written report must detail:
a) the outcome of the skills assessment (in terms of competent or not yet
competent); and
b) relevant strengths and how they were evidenced; and
c) relevant weaknesses and how they were evidenced; and
d) relevant recommendations for further training and skills development.
3) Experience qualified practitioners are those who have been assessed by an
RMAB as demonstrating a level of competence by reference to the competencies
expressed in the Practice Standards. An experience qualified mediator must either:
a) be resident in a linguistically and culturally diverse community for which
specialised skills and knowledge are needed and/or from a rural/or remote
community where there is difficulty in attending a mediation course or
attaining tertiary or similar qualifications; or
b) have worked as a mediator prior to 1 January 2008 and have experience,
training, and education that satisfies an RMAB that the mediator is equipped
with the skills, knowledge and understandings set out in the core
competencies referred to in the Practice Standards, and who has met the
continuing accreditation requirements set out in Section 6 below in the 24
months prior to making an application.
4) Practitioners who seek to offer advice through the use of a blended process such
as conciliation or advisory or evaluative mediation must also provide evidence to the
RMAB of:
a) their continuing registration, membership or equivalent within the
professional area in which advice is to be given, and
b) completion of an appropriate degree, or equivalent qualification in the area
of their expertise from a university or former college of advanced education, of
at least four years equivalent full-time duration, or a VET-approved
organisation to a National Framework Level 6 standards; and

20 Community Mediation

University of Sydney

c) a minimum of five years experience in the professional field in which they


seek to provide advice.

6 Continuing Accreditation Requirements


1) Mediators who seek to be reaccredited must satisfy their RMAB that they continue
to meet the approval requirements set out in Section 3 of this document. In addition
mediators seeking re accreditation must, within each two-year cycle, provide
evidence to the RMAB that they have:
a) sufficient practice experience by showing that they have either:
i) conducted at least 25 hours of mediation, co-mediation or conciliation
(in total duration) within the two-year cycle; or,
ii) where a mediator is unable to provide such evidence for reasons
such as, a lack of work opportunities (in respect of newly qualified
mediators); a focus on work undertaken as a dispute manager,
facilitator, conflict coach or related area; a family, career or study
break; illness or injury, an RMAB may require the mediator to have
completed no less than 10 hours of mediation, co mediation or
conciliation work per two-year cycle and may require that the
mediator attends top up training or reassessment;
and,
b) have completed at least 20 hours of continuing professional development in
every two-year cycle that can be made up as follows:
i) attendance at continuing professional development courses,
educational programs, seminars or workshops on mediation or related
skill areas as referred to in the competencies (see the Practice
Standards) (up to 20 hours);
ii) external supervision or auditing of their clinical practice (up to 15
hours);
iii) presentations at mediation or ADR seminars or workshops including
two hours of preparation time for each hour delivered (up to 16 hours);
iv) representing clients in four mediations (up to a maximum of 8
hours);
v) coaching, instructing or mentoring of trainee and/or less experienced
mediators (up to 10 hours);
vi) role playing for trainee mediators and candidates for mediation
assessment or observing mediations (up to 8 hours);
vii) mentoring of less experienced mediators and enabling
observational opportunities (up to 10 hours).
2) Ongoing accreditation as a mediator requires the mediator to meet the practice
standards and competencies described in the Practice Standards. An RMAB has
discretion to remove or suspend a mediator in circumstances where it believes, on
the balance of probabilities, that there has been non compliance with the Practice
Standards, other relevant ethical guidelines or professional requirements, or these
21 Community Mediation

University of Sydney

Approval Standards. In relation to any removal or suspension, a mediator must be


informed within 14 days of the concerns of the RMAB and provided with an
opportunity to respond to the RMAB. The RMAB must have a process in place to
deal with removal and suspension or must be able to provide access to a process
where such decisions can be made in a procedurally fair manner.

22 Community Mediation

University of Sydney

Assessment

23 Community Mediation

University of Sydney

ASSESSMENT REQUIREMENTS
1.
2.
3.
4.

Course participation, Reflective Journal 25%


Role plays 25%
3000 words assignment on one of the 8 topics listed on the next page 50%.
The assignment is due on 26 March 2010

Course participation, Reflective Journal 25%


You should keep a Reflective Journal during the course which should include your
reflections on what you have learned from the various skills exercises and what you
would do differently if you could try that exercise again. The journal does not need to
be extensive, nor should it take a great deal of your time to complete. It helps your
learning if you think consciously about the skills you are acquiring and how you might
improve them (both during and after the course.) You may be able to integrate some
of these reflections into your assignment. Please note this journal is not a formal
dairy. The Journal is a formal assessment piece and part of the formal assessment
to the course The Journal is formative assessment and is part of the summative
assessment for the course.
Role-plays 25%
For course participation marks we will look for regular attendance; an honest effort in
the role-plays; evidence of reflection about the exercises and improvement in skill
levels; evidence that you have read the relevant materials; application of your
reading to class discussion.
Research Assignment 50%:
You may choose your own assignment topic, after consultation with the course coordinators, or choose from the assignment list.
Your assignment should
demonstrate that you have reflected upon what you have learned about mediation
skills in the course, integrating that understanding with the literature on mediation
practice. Note that you are expected to read and research for this assignment in the
same way as for a research assignment. Formal referencing of sources AND
provision of a bibliography are essential.

24 Community Mediation

University of Sydney

ASSIGNMENT LIST
Topic of your choice, or one of the following topics:
1. Court ordered mediation. Mediation is a voluntary process. Reconcile these 2
statements.
2. An impartial mediator: fact or fiction?
3. Discuss the role of confidentiality and apply the discussion to 3 types of
mediation e.g. workplace, court ordered etc
4. Compare and contrast interest based, transformative and narrative mediation.
5. Discuss the skills common to both mediation and counselling and where
mediation and counselling diverge.
6. Discuss the ethical considerations in the mediation process and strategies the
mediator can utilise to ensure ethical practice.
7. Explore the role of the mediator in managing the power dynamics in mediation.
8. Critically analyse the advantages and disadvantages of applying the diamond
mediation model to the management of mediation for both the parties and the
mediator/s.

NB:
(i) Further details regarding referencing styles, presentation and submission of assignments
may be found in the CPACS Assignment Presentation and Submission Guidelines. Most
importantly, students are required to attach an Assignment Cover Sheet to all assignments
and to sign the plagiarism compliance statement before work can be marked.
(ii) Students must complete all three sections of the assessment (role play, journal,
and essay) for successful completion of the course. Failure to attend at least 80% of
classes without reasonable cause is grounds for failure.

25 Community Mediation

University of Sydney

READING LIST
1. Hilary Astor and Christine Chinkin Dispute Resolution in Australia 2nd edition,
Butterworths, Sydney, 2002.
This recommended text is not a skills book, but a scholarly treatment of dispute
resolution in general. See chapter one on theory issues and chapter 5 on mediation
especially. A good research resource see the extensive bibliography.
2. Laurence Boulle Mediation : Principles, Process, Practice 2nd edition,
Butterworths 2005
Not a skills book but a scholarly treatment of dispute resolution mostly about
mediation.
3. David Spencer and Tom Altobelli Dispute Resolution in Australia: Cases,
Commentary and Materials Lawbook Co., 2005.
As the name implies this is a collection of materials on a range of dispute
resolution methods.
Mediation books with skills content
(search for these titles via Library catalogue search, unless stated otherwise)
1. Menonite Conciliation Service Mediation and Facilitation Training Manual 4th
edition, ed. Carolyn Schrock-Shenk, MCS, Akron, Pennsylvania, 2000. (see
www.mcc.org)
A skills manual. The Mennonites, like the Quakers, have an extensive reputation in
dispute resolution. A copy is in the library.
2. Christopher Moore The Mediation Process: Practical Strategies for Resolving
Conflict 3rd ed, Jossey Bass, San Francisco.
One of the most respected US texts on mediation, now in its third edition.
Note the Jossey Bass website for many more US texts on mediation and ADR.
3. Bernard Mayer The Dynamics of Conflict Resolution: A Practitioner's Guide
Jossey-Bass, San Francisco, 2000.
Another good US skills book thoughtful and well written.

26 Community Mediation

University of Sydney

4. Peter Condliffe Conflict Management: A Practical Guide 2nd ed, Lexis Nexis
Butterworths, Sydney, 2002
A quirky combination of skills and theory from an Australian mediator.

5. Ruth Charlton Dispute Resolution Guidebook Law Book Co, Sydney, 2000.
An Australian book that goes beyond basic skills and considers ADR in specific
areas of application. Includes a significant section on facilitation.
6. Gregory Tillett and Brendan French Resolving Conflict: A Practical Approach 3rd
edition 2006 Oxford UP, Melbourne.
A good Australian text with strong analysis of the nature of conflict and much
material relevant to conflict in organisations and workplace conflict.
7. Fisher, Patton & Ury 1999: Getting to Yes, Random House, Sydney
A classic book on negotiation advocating the win/win approach.
8. Allan Parker: The Negotiators Toolkit, Peak Performance, Darlinghurst, Sydney
A hands on practical approach to negotiation filled will ideas to develop your toolkit.
9. David B. Moore and John M. McDonald: Transforming Conflict, Transformative
Justice Australia Pty Ltd.
This book examines a process for dealing with conflict in a constructive manner.
It looks at community conferencing as a means of a healing process for victims of
crime as much as for perpetrators of crimes. The book introduces the core
principles of conflict transformation.
10. Mayer B: The Dynamics of Conflict Resolution, Jossey-Bass San Fransisco
The author presents a particularly unique perspective on the resolution of
disputes and the prevention of conflict. The book helps the reader in finding
more skilful ways to resolve conflicts.
11. Mosten F: Mediation Career Guide A Strategic Approach to Building a
Successful Practice, Jossey-Bass, San Fransisco
A helpful book if you are thinking about starting your own consultancy in mediation.

12. Ury W: Getting Past No, Random House, Sydney 1999


27 Community Mediation

University of Sydney

Riding on the coat tails of Getting to Yes this book provides techniques for dealing
with difficult parties.
Particular approaches to mediation
1. Linda Fisher and Mieke Brandon Mediating with Families: Making the Difference
Prentice Hall, Sydney, 2002.
An Australian practitioners book on family mediation.
2. John Haynes and Stephanie Charlesworth The Fundamentals of Family
Mediation Federation Press, Sydney, 1996.
A family mediation skills book co-written by a US and an Australian author.

3. John Winslade and Gerald Monk Narrative Mediation : A New Approach to


Conflict Resolution Jossey Bass, San Francisco, 2001.
A skills book that describes a particular approach to mediation
4. Robert A. Baruch Bush, Joseph P. Folger The Promise of Mediation: The
Transformative Approach to Conflict, Revised Edition, October 2004, JosseyBass.
The textbook on transformative mediation.
Useful web resource
A most useful web site can be found by going to the law school library web site. Click
Law Web Resources, Web Resources by topic, Dispute Resolution. Or go to
http://www.weblaw.edu.au/weblaw/display_page.phtml?WebLaw_Page=Dispute+Re
solution
This site will provide you with links to a wide range of useful DR web sites.

28 Community Mediation

University of Sydney

ASSESSMENT CRITERIA
Fail (Below 50%): Doesnt answer the question. Work may fail for any or all of
the following reasons:
Few or no identifiable arguments.
No original research.
Content that is inappropriate or irrelevant because the student has not attempted
to answer the question.
Plagiarism, inappropriate use of other student work, including recycling all or a
significant part of a paper which has already been given credit in another course.
Difficult or impossible to understand through poor grammar, expression or
structure.
Significant or numerous errors.
Pass (50-64%): Attempts to answer the question.
Offers descriptive summary of material relevant to the question.
Attempts to answer the question, but does not follow through with a reasoned
argument.
Displays no real engagement with the issues.
Superficial use of material, tendency to paraphrase.
Shows no evidence of in-depth research.
Some important errors.
Adequate expression.
Credit (65-74%): Mostly answers the question.
Contains no significant errors and covers main issues fairly well.
Attempts a critical approach to the issues.
Demonstrates independent research appropriate to addressing the main issues.
Only minor errors if any.
Has a clear structure and reasonably clear expression.
Distinction (75-84%): Completely answers the question.
Has a clear structure and is well articulated.
Achieves a critical and evaluative approach to the issues.
Content and structure is well organised in support of the argument.
Demonstrates extensive research supporting a well documented argument.
Generally well expressed and free from errors.
High Distinction (85% +): Completely answers the question in an original or
unanticipated way.

Contains striking originality of approach or analysis.


Demonstrates exhaustive or innovative research.
Exceptionally well written.
Is otherwise exceptional in some way.

29 Community Mediation

University of Sydney

CODES OF PRACTICE & POLICY

A1. University of Sydney Handbook 2010


The handbook is an essential guide for every student who studies at the University of
Sydney. It is an important source of enrolment information, examination procedures,
assessment policies and useful contacts.
An online copy is available at:
http://www.usyd.edu.au/handbooks/
A2. Student Behaviour
Students will be expected to adhere to the Universitys Student Code of Conduct in
and outside of classrooms. Basic courtesy will be expected, including having mobile
phones turned off, arriving punctually and treating the teacher and other students
with respect. A copy of the Universitys Student Code of Conduct is available at
http://www.usyd.edu.au/ab/policies/Student_code_conduct.pdf
With regards to correspondence with academic staff, students should remember to
sign their name and provide their student identification number, especially when
sending emails.
A3. (Grievances) Appeals
You may consider that a decision affecting your candidature for a degree or other
activities at the University has not taken into account all relevant matters.
In some cases the by-laws or resolutions of the Senate (see the University Calendar:
http://www.usyd.edu.au/calendar/) provide for a right of appeal against particular
decisions; for example, there is provision for appeal against academic decisions,
disciplinary decisions and exclusion after failure.
A document outlining the current procedures for appeals against academic decisions
is available at the Student Centre, at the SRC, and on the Universitys policy online
website:
http://www.usyd.edu.au/policy (click on 'Study at the University', then click on
'Appeals' - see the Academic Board and Senate resolutions).
A4. Use of Lecture Material
Lectures are literary works subject to copyright. Students have a limited licence to
make use of these lectures by taking notes and making a limited number of copies
for their research and study. That licence does not extend to making multiple copies
of these notes, publishing them, electronically transmitting them or making them
available online in any form. Lectures may not be taped without express personal
permission from the lecturer.
A5. Policy on Harassment and Discrimination
The University has a policy prohibiting harassment and discrimination, and a
procedure for handling inquiries and complaints about these. These policies and
procedures can be found at the Staff and Student Equal Opportunity Units page on
the universitys website:
http://www.usyd.edu.au/su/eeo/ or for further details, please refer to the Facultys
Teaching Handbook.

30 Community Mediation

University of Sydney

A6. Plagiarism and Academic Dishonesty


University practice on plagiarism and academic dishonesty is governed by the
Academic Board Resolutions, Academic Honesty in Coursework, 14 November
2002, last amended 5 April 2006. This document is available online. Students are
encouraged to read this policy which can be accessed at:
http://fmweb01.ucc.usyd.edu.au/pol/FMPro?-db=pol_main.fp5&-lay=www&format=pol_summary.html&-error=pol_error.html&DocID=9&-find
For further explanation of this policy, see:
http://www.chs.usyd.edu.au/PG/honesty.html
University practice on Plagiarism is also governed by the Vice Chancellors Policy
Student Plagiarism Course Work: Policy and Procedure, of 15 February 2005. A
copy of which is available from:
http://www.usyd.edu.au/senate/policies/Plagiarism.pdf
Please note that the Policy requires students to submit a signed statement of
compliance with all work submitted for assessment. Therefore, all students
must submit their essay with the Assignment Coversheet
(see http://www.law.usyd.edu.au/cstudent/coursework/forms.shtml for the form) and
must give the Declaration on Plagiarism set out on the Assignment Coversheet.
Students who are found to have engaged in academic dishonesty will be reported to
the Pro-dean (Teaching Programs) and will be required to attend a formal meeting to
discuss the possible outcomes, and a record is kept in relation to each instance.
Serious cases and repeat cases will be referred to the University Registrar and could
result in exclusion from the University.
A guide on how to avoid plagiarism, cheating and copying is available at:
http://www.usyd.edu.au/secretariat/students/plagiarism_index.shtml

31 Community Mediation

University of Sydney

Mediation:
principles & practice

32 Community Mediation

University of Sydney

CONFLICT
Without censoring your thoughts, write down words you think of when you think of
conflict. Stop when you have a list of eight words.

33 Community Mediation

University of Sydney

WHAT IS MEDIATION?

The Australian Standard and NADRAC describe mediation as follows:

Mediation is a process in which the parties to a dispute, with the assistance of


a dispute resolution practitioner (the Mediator), identify the disputed issues,
develop options, consider alternatives and endeavour to reach an agreement.
The mediator has no advisory or determinative role in regard to the content of
the dispute or the outcome of its resolution, but may advise on or determine
the process of mediation whereby resolution is attempted.

Golden Rule: The mediator owns the process and the parties own the content. The
mediators hand should never be seen in the content.

34 Community Mediation

University of Sydney

INTEREST BASED MEDIATION


An interest-based mediation has the goal of finding mutually satisfactory outcomes
for all parties. This approach looks beyond the positions that parties may bring to
the mediation i.e. things that the parties say they want, or will or wont do. Interest
based mediations attempt to understand three interdependent interests that all
parties are seen to have: substantive, procedural and psychological. These three
elements are like a "three-legged" stool: unless all three areas are addressed, the
solution is less likely to be sustainable.

Procedural

Substantive

Psychological

Substantive interests refer to what needs to be negotiated and are often the central
focus of negotiations. They often include tangible things such as money, physical
resources, time, etc
Procedural interests refer to how the process of mediation is conducted. They
relate to matters such as having a fair say and to the process occurring in an orderly,
timely and balanced manner.
Psychological interests refer to the emotional and relationship needs of parties
both during and as a result of mediation. They include things such as perceptions of
trust, fairness, desire for participation, respect, etc.

35 Community Mediation

University of Sydney

INTERESTS VS POSITIONS
In a positional dispute the parties often start with a proposal or a solution to the
problem which they then defend through arguments and evidence. There is little
exploration of the issues as parties trade offers & counter offers in an attempt to
reach a solution.
Interest based resolution involves uncovering a range of needs which underpin
positions rather than simply focussing on the solution. It explores why an issue is
important and allows the parties to engage in finding solutions that meet these
needs.

Most obvious,
what you are told.

Position:
Things you
say you want,
demands,
things you say
you will and
wont do.

What you often


dont hear but
will drive
behaviour & if
not met can
affect the
outcome of the
mediation

36 Community Mediation

Interests:
Underlying motivations
Needs & concerns
Fears & hopes

University of Sydney

WHAT IS THE ROLE OF THE MEDIATOR?

The mediator is the authority in control of the mediation process. This authority is
vested in his/her knowledge, skills, experience and is derived from the Agreement to
Mediate signed by all parties prior to the mediation session.

The mediator is responsible for creating a positive, safe, supportive and inclusive
environment for the parties to allow an open and honest discussion of the disputed
issues. The success of the mediation is dependent on the parties understanding of
the disputed issues and of them being made aware of each others view.

Skills - The mediator possess a number of skills such as active listening, appropriate
assertiveness, communication, impartiality, teamwork etc.

Qualities: In addition to the skills above, the mediator also has certain qualities such
as empathy, neutrality, personal integrity, professional confidentiality and has high
professional ethical standards.

The mediator is not a judge and should always remain impartial throughout the
process and beyond. The mediator doesnt determine the outcome, parties do. The
mediator should not dwell on facts on the basis of personal curiosity. The role of the
mediator does not include suggesting solutions, counselling, providing therapy or
expert advice (unless it is an expert based mediation).

37 Community Mediation

University of Sydney

PROCEDURAL TYPES OF MEDIATION


SOLO MEDIATION
Advantages
Mediator able to run their own show
Parties only need to focus on one mediator
Disadvantages
No opportunity to model communication, gender balance
Difficulty maintaining eye contact and observing body language when taking
statements
Limited options if parties dont engage with mediator
No feedback from external source based on direct experience
No option of other professional perspectives
Mediator assumes all responsibility for process
No option to engage help
Key information can be missed
No consultation to ensure impartiality & being true to the process

CO-MEDIATION
Advantages
Eye contact can be maintained with parties
Body language more easily observed
Two perspectives
Responsibilities are shared
Impartiality can be monitored
Opportunity to debrief & provide feedback based on direct experience
Decision making regarding the process is shared
Ongoing flow of process as parties are continually engaged
Less pressure on mediators
Opportunity to model communication, team work
Opportunity for gender balance & gender role modelling
Disadvantages
Principally when co mediation is not done well
o messages conveyed re:
Communication
Teamwork
o Trust
o Confidence in mediators
o Process disrupted
o Credibility in process
38 Community Mediation

University of Sydney

PROCEDURAL TYPES OF MEDIATION


SHUTTLE MEDIATION
Purpose
To maintain the safety needs (physical and psychological) of one or both of the
parties.
Advantages

Maintains physical and psychological safety of the parties


Provides a forum for parties to resolve their conflict
Can limit the conflict escalating through the non emotional delivery of the
message by the mediator

Disadvantages

Unable to see the non verbal language between parties


Unable to see the immediate impact of the message as intended by the party
Impartiality of mediator is more difficult to maintain
Mediator may convey messages of intimidation or threat that they are unaware of
Requires more time
Potentially more taxing for parties & mediator both physically and psychologically

TELEPHONE MEDIATION
Purpose
To ensure safety of parties or bridge physical distance between parties.
Advantages

Provide a forum to resolve conflict outside a face-to-face mediation

Disadvantages

Unable to observe non verbal language between parties


Unable to utilise non verbal communication between mediators
Unable to share visuals e.g. whiteboard
Perceived impartiality on part of mediators

39 Community Mediation

University of Sydney

THE MEDIATION PROCESS

1. Pre-mediation
Past
2. Opening
statement
3. Parties
opening comments
(story telling)

Understanding
and exploration

4. Reflection
and summary
5. Agenda setting identifying items for discussion

6. Issue exploration

7. Private sessions

8. Joint negotiation

[9. Agreement]

Problem Solving
Resolution

10. Closure

Future

40 Community Mediation

University of Sydney

STAGES OF MEDIATION

STAGES
14

PAST FOCUS
Identification and definition of the issues

56

TRANSITION STAGE FROM PAST TO FUTURE


Co-operative approach, joint ownership of the
conflict/issues

7 10

FUTURE FOCUS
Problem resolving, option generating and agreement

41 Community Mediation

University of Sydney

FISHBOWL

What stages did you observe?

What skills did the mediators use?

What was done that was effective?

What was the turning point in the mediation?

What might have been more effectively?

42 Community Mediation

University of Sydney

STAGE 1: PRE-MEDIATION

Purpose
1. To assess the suitability of the dispute and identify participants/parties and
their readiness for mediation.
2. To prepare the parties so they get the most out of the mediation process,
3. Parties sign Agreement to Mediate.

Checklist
9
9
9
9
9
9
9
9
9
9
9
9

Party and mediators introduced to each other


Roles explained
Process outlined
Mediators authority to mediate confirmed
Partys willingness/readiness to mediate established
Participants identified
Expert advice , if required, discussed
Timelines set
OH&S issues identified
Special needs identified
Agreement to mediate provided and discussed
Any conflict of interest identified

43 Community Mediation

University of Sydney

PRE-MEDIATION

Who do you think should be at the mediation session?

Parties that are directly linked to the conflict.


Parties who have the authority to mediate and make decisions.
Support people i.e. friends, family, experts

What information a mediator needs to know about the conflict and the parties?

Brief outline of the issues


Brief history of the conflict
Who the parties are in conflict with
Options pursued or may need to be considered
Expected outcomes
Timeframes

What other issues does the mediator need to consider?

Conflict of interest if any.


Is this a mediatable conflict?
Am I the right person to conduct this mediation?
Solo or co-mediation
Roles of the support persons (if any)
Parties personal needs i.e. disability access, safety issues
Suitability of the venue and the physical environment
Ample time for the mediation session

What the parties need to prepare for or made aware of before the mediation?

All written material submitted or used in the mediation by one party may be made
available to the other party.
Solutions or options
Expected realistic outcomes
Consider the needs and/or obtain consent from parties not present at the
mediation
Have obtained or access to expert advice if required

44 Community Mediation

University of Sydney

What physical preparations are required?

Venue is booked
Mediator/s arrives 30 minutes prior to the start of the mediation.
Arrange the seats and the tables move away excess furniture
Water jugs and cups provided
Pens and paper for each party
Whiteboard is clean and have working markers
Waiting rooms vacant and not in use

45 Community Mediation

University of Sydney

STAGE 2: OPENING STATEMENT


Purpose
To explain the process and ground rules for the session, the role of the mediators
and to establish rapport between the parties and the mediators.

Checklist
Welcome/Introduction
9 Forms of address/names established
9 Housekeeping i.e. toilets, breaks, parking, timelines etc
9 Special needs identified
Goal of mediation described
Principles explained
9 Confidentiality
9 Voluntary
9 Flexible
Roles explained
9 Mediator
9 Parties
9 Support people
9 Others
Process explained
Ground rules established
Authority of parties to settle established
Agreement to Mediate is signed

Key Skills
Mediators own the process, parties own the content
1.
2.
3.
4.
5.
6.
7.
8.
9.

Communication
Ability to engage parties
Putting parties at ease
Ability to create a safe/inviting environment
Working as a team (co-mediation model)
........................................................................
........................................................................
.........................................................................
..........................................................................

46 Community Mediation

University of Sydney

OPENING STATEMENT
Introductions
Mediator/s introduces him/herself and state his/her preferred way to be
addressed i.e. first name or surname.
Mediator invites each party to introduce him/herself and their preferred way they
wish to be addressed.
Agreement to Mediate
Parties are asked to sign copies of the Agreement to Mediate. Mediator and
parties each has a signed copy of the agreement to mediate.
Explain mediation
Mediation is a problem-solving process and an opportunity to resolve issues on
your own. "We are here to help you communicate with each other. It is an
empowering process.
Voluntary
Parties are attending on their own free will and are able to leave at any time for
whatever reason. They are encouraged to give the process a chance and to
discuss their concerns, if any, with the mediator prior to making a decision to
leave.
Flexible
The process is flexible and needs to work for you as the parties.
Mediators role
Neutral, not judge; doesnt make decisions or recommendations, and doesnt give
advice.
Confidentiality
Anything that you discuss here will remain confidential. It is expected that the
content of this session remain confidential and not be discussed with third parties
without the consent of all parties present here. All notes taken by the mediator
will be destroyed after the session. A copy of the agreement will be kept by the
mediator for future reference. Should the parties choose to proceed with legal
action, the mediator cant be called to give evidence in court as per the indemnity
clause in the Agreement to Mediate.
Any disclosure of a serious crime, under the crimes Act, committed or about to be
committed will be communicated to the relevant authorities by the mediator.
Breaks
Just let us know if you would like to take a break, to go to the bathroom,
medicine, call the kids, consult with partner/solicitor etc.

47 Community Mediation

University of Sydney

Outcome
If you reach agreement, you may choose to have it written or verbal. We suggest
that you write your agreement. Agreements reached here are not legally binding,
however, you may wish to seek court order by consent to make it legal if you
wish to.
Ground rules
Courtesy, no interruptions and adhere to the process
Process
Mediator gives a brief outline of the process
Ask each party to briefly state their concerns while other party/s listens without
interruption.
Mediator will be taking notes of the stated concerns to read them back later to
ensure that mediator have heard and noted them.
Mediator reads back the concerns without interruptions from the parties unless
some facts/concerns were not correctly stated by the mediator. No new
issues/concerns are added at this point. Parties are reminded that any other
issues could be added and discussed later.
Mediator makes a list of items for discussion and writes them on the whiteboard.
The mediator explains the list and links each issue to the parties concerns.
Mediator obtains parties agreement on the list of issues.
Parties are asked to discuss each item on the list. Parties are encouraged to
discuss the items directly with each other.
Private Sessions the mediator will have a brief private session with each party
individually while the other party takes a break outside the mediation room.
Private Sessions are completely confidential and nothing will be disclosed by the
mediator to either party. Options and possible outcomes are discussed in private
sessions.
Post private sessions a look at the future and formulating an agreement if an
agreement is reached.
Agreement can be written or verbal. Not legally binding but can be made legal
by taking t to the court and seek Orders by Consent.
Any questions.

48 Community Mediation

University of Sydney

STAGE 3: STORY TELLING

Purpose
To enable parties to state their concerns and feelings and listen to each other
without interruption in a safe and inviting environment.

Checklist
9 Parties concerns and feelings are expressed uninterrupted
9 Active listening maintained
9 Parties are supported
9 Ground rules are maintained
9 Similar times allowed for parties stories
9 Neutral body language maintained i.e. refrain from nodding in agreement
9 Impartiality maintained

Key Skills
1. Active listening
2. Note taking
3. Questioning i.e. to clarify events, dates, times, persons etc
4. ..............................................
5. ..............................................
6. ..............................................
7. ..............................................

49 Community Mediation

University of Sydney

STORY TELLING

One of the parties, usually the one who initiated the mediation, is asked to briefly
state his/her concerns and his/her expected outcomes.
Other party/s is reminded of listening to the concerns without interruptions.
He/she is encouraged to write down any issues come to mind on the piece of
paper provided.
Second party is thanked for his/her patience and for not interrupting and invited to
state his/her concerns. He/she is reminded to state his/her concerns and not just
a response to the issues stated by the first party.
First party is reminded to listen and not interrupt.
Mediator writes down issues of concern and feelings of each party using their
own words including swear words if any.
Mediator thanks both parties for being courteous towards each other.
Mediator reads back the parties stories as told by the parties.

Dealing with interruptions

Let the parties know that they most likely will hear things that they dont agree
with, or make them angry etc. Let them know that this is part of resolving the
conflict.
Remind the parties that they agreed to adhere to the process.
Remind the parties that this is the time when we all need to listen to each story
and understand each others issues/concerns.
Remind parties that they will have their turn to tell their side of the story.
Avoid eye contact with the other party who is interrupting.
Encourage the interrupting party to write down their thoughts, feelings, side of the
story
Repeat the above a number of times should the interruption continues.
Remind the interrupting party that if this continues, the mediation will take much
longer to finalise.
Have a private session with the interrupting party to find out their reasons for
interrupting and of their ability to hold back until the other party had finished
telling his/her story.
If all failed, inform the interrupting party that they may be asked to leave the room
for that part of the mediation.

50 Community Mediation

University of Sydney

STAGE 4: SUMMARIES
Purpose
To identify the parties main points of concern, to check that they have been heard
accurately, and to lay the foundation for a joint list of items for discussion.

Checklist
9 Parties stories summarised accurately
9 Parties key words quoted where appropriate
9 Positive events highlighted
9 Active listening maintained
9 Impartiality maintained
9 Reframing avoided
9 Parties feelings noted and acknowledged
9 Common ground (between parties) emphasised

Key Skills
1. Listening
2. Note taking
3. Interpreting body language
4. ..............................................
5. ................................................
6. .................................................
Listen for what is not said as well as to the spoken word.

51 Community Mediation

University of Sydney

THE SUMMARIES
Summaries are commonly read back one at a time after both parties have given their
opening statements starting with the first partys summary and then the second.
Parties are reminded that the summaries are just that. They are how the mediator
heard them from the parties. Parties are asked not to interrupt while the summaries
are being read. No addition of new issues is allowed at this point. Parties can
correct the mediator of certain facts if the mediator didnt get note the parties points
correctly.
Parties at times, are selective in what information they give when telling their stories.
This practice allows the parties to show themselves in positive and acceptable
behaviours while it shows the other in negative and unacceptable behaviours. For
this reason, summaries should not be rephrased or reframed to make them neutral.
It is critical that the parties own words are repeated including feelings of anger,
frustration, dismay etc. The parties would feel that they were heard by the mediator.
Also, parties at times are shocked or surprised at hearing back the language they
used in describing the events, behaviours or the persons.
This is the only place that reframing and rephrasing are not used by the mediator.
Effective Summaries:
An effective summary is a summary that demonstrates the following:
1. Active Listening
2. Understanding of the issues and concerns
3. Recounting in the parties own language

52 Community Mediation

University of Sydney

STAGE 5: AGENDA SETTING

Purpose
To assist participants in having a visible direction and to give legitimacy to parties
concerns and issues.

Checklist
9 Neutral language used
9 Topics reframed to be Inclusive, neutral and mutual
9 Whiteboard used appropriately
9 Objectivity maintained
9 List is agreed to by parties
9 Flexible and simplicity of list is ensured

Key Skills
1. Communication
2. Analysis
3. Reframing
4. Grouping the issues
5. ........................................................
6. ........................................................

53 Community Mediation

University of Sydney

LISTING THE ITEMS FOR DISCUSSION


The list of items for discussion is a list that captures the major concerns of all parties
to the dispute based on the summaries of both stories.
The list provides the parties and the mediator a sense of direction for the mediation
session. Parties approval of the list is crucial. It is also very important that the
parties feel that their issues are acknowledged and listed. It gives the parties the
ownership of the issues and empowering them to actively participate in the
discussion.
The list is not set in stone. It can and should be amended if there is a need to
include or exclude any parts of it. This will further enforce the notion that parties own
the content.
The items are listed in logical order where appropriate and possible. For example a
fence dispute should list the state or the condition of the fence before quotes for
new fence.
The list should use friendly and non-blaming language. For example the issue of
Party X damaging the fence, should be written as The Fence or damage to the
fence. It should reflect impartiality, non-judgemental, positive, clear and simple, and
appropriate to the parties and the events.
It is important to remember that the mediation session from this point onwards is
structured around and on the list of issues. The list of issues will be referred to
continuously from now on.

54 Community Mediation

University of Sydney

REFRAMING
In the opening statement one party discusses the other party always being late for
work.
The other party mentions that getting to work on time is difficult because of child care
arrangements.
Possible agenda item
..................................................................................................................................

One party calls the other party a racist. The other party complains that the other
party spits on the pavement when they walk by.
Possible agenda item
..................................................................................................................................

One party complains that their deceased mothers would have wanted her to have a
share in the house. The other says that it was not in the will.
Possible agenda item
..................................................................................................................................

One party says that are sick of getting work that is substandard. The other party
complains that it is impossible to produced work to the ridiculously high standard
expected.
Possible agenda item
..................................................................................................................................

55 Community Mediation

University of Sydney

COMMON AGENDA ITEMS

Relationship

Wishes

Communication

Needs

Reputation

Agreement

Recognition

Respect

Property

Sound

Quality

Future

Privacy

Impact

Safety

Other:
.........................................................................

.............................................................................

.........................................................................

............................................................................

........................................................................

...........................................................................

.........................................................................

...........................................................................

..........................................................................

...........................................................................

56 Community Mediation

University of Sydney

REFRAMING
Moving parties from Generalities to Specifics

Example 1
Party:

He always comes in late.

Mediator:

Can you give me an example of when he comes in late?


What is he late for?
What it feels like waiting for him to come home?

Example 2
Party:

Hes got a real attitude problem; he thinks hes better than the rest of us.

Mediator:

Tell me about a situation in which you felt this way, or give me a specific
example.

Example 3
Party:

That whole bunch is an irresponsible lot.

Mediator: Who specifically do you mean by that?


In what ways are they irresponsible?
What leads you feel that way?
Give me an example of his/her/their behaviours that makes you feel
about him/her/them that way.
Example 4
Party:

Hes a racist.

Mediator: Explain what you mean by that.


Tell me what he does that you are unhappy with.
Give me an example...

57 Community Mediation

University of Sydney

REFRAMING
Negatives to Positives
Example 1
Party:

Shes impossible to work with in a group setting. She dominates


conversations and gets very upset if she doesnt get her way. I just cant
work with her anymore.

Mediator: So youre very frustrated with her response in group discussions, and at
this point youve given up on working with her.

Example 2
Party:

Look, Im not saying I cant do anything with her. We can still do the work
together on the project. But I wont attend public meetings with her. I just
cant stand the constant battles.

Mediator: Youre prepared to work with her in most areas, but its the meetings
where youve become really discouraged about working together.

Example 3
Party:

This guy is lying through his teeth! What hes saying is complete nonsense!
He was the one who came to my house, woke me up, and started shouting
at me like an idiot! I never came near his house!

Mediator: So you disagree strongly with his account. Your memory is that he came
to your house and the argument took place there, not at his place.

58 Community Mediation

University of Sydney

SKILLS PRACTICE: REFRAMING


Theyre just jealous, thats their problem.
.................................................................................................................................
.................................................................................................................................
This guy is totally irresponsible. He wouldnt know responsibility if he fell over it.
.................................................................................................................................
.................................................................................................................................
................................................................................................................................

She is impossible to work with. She doesnt get on with anyone.


.................................................................................................................................
.................................................................................................................................
People around here just look after themselves. They dont care about anyone
else.
.................................................................................................................................
.................................................................................................................................
This guy thinks hes some big shot and can push anyone he likes around. He
thinks he owns this place. Well, hes not pushing me or my family around. Weve
got rights, and we are going to do what needs to be done. If he causes anymore
trouble, Im going to call my uncles and nephews and well show him whos boss.
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................

59 Community Mediation

University of Sydney

STAGE 6: EXPLORATION
Purpose
1. To establish a direct and constructive communication between the parties.
2. To demystify the conflict and to assist parties shift from 1st to 2nd position

Checklist
9 Exploration open statement made
9 Direct communication between parties is encouraged
9 One issue dealt with at the time
9 List of Items referred back to
9 Ground rules adhered to
9 Parties interaction is balanced
9 Progress made is acknowledged
9 Parties not pressured/encouraged to reach agreement

9 Parties gain better understanding of needs, interests, perceptions,


expectations and feelings
9 All issues dealt with sufficiently before moving into private session

Key Skills
1. Team work (co-mediation)
2. Clarifying questions/reframing
3. Transition language
4. Overcoming impasse summaries, reflection, silence
5. ............................................

60 Community Mediation

University of Sydney

EXPLORATION
Exploration is a stage where the parties are encouraged to communicate directly
with each other in a civil and respectful manner assisted by the mediator.
The mediator introduces this stage by saying that they have the opportunity to
discuss the items on the board directly with each other and to express their feeling
about each others behaviour/actions.
The mediator may choose one of the items as a starting point of discussion or leave
it for the parties to decide. If the mediator makes the choice, they may choose a
simple and not too controversial item as a starting point. This can facilitate the
communication between the parties. Starting with an easy item can build on the
parties trust in the mediator, in each other and in the mediation process.
Allowing the parties to decide on the starting agenda item themselves is considered
by some mediators as facilitating ownership of the content. There is no definitive
right or wrong way to approach this and it is at the mediators discretion.
The parties should be encouraged to ventilate, within reason, their emotions and
feelings about the events/behaviours/actions that preceded the mediation.
The mediators are to ensure that critical comments and key words are heard and
responded to by the parties. For instance if party X didnt respond to an apology
from party Y the mediator is to ask party X what he/she thinks of the apology or if
he/she accepts it.
If the parties are engaged and communicating directly with each other in a civil and
respectful manner, there is no need for an intervention by the mediator.
The mediators are agents of reality and their role is to assist the parties understand
the impact of a suggestion. For example if party X offers to fully pay for a new fence
and party Y accepts the offer, the mediator needs to clarify what type of fence,
colour, height etc and asks party Y if that is acceptable to him/her.
The exploration stage is the focus of the mediation process in which mediation skills
are most required and practiced. This stage is a transition from the past to the
future. It is also a transition from first position to third position.
The following are some types of transitions:
1. Direct Transition this is useful for eliciting information. For example please
tell John how often the rubbish is swept under the fence and why you feel
angry when this happens

61 Community Mediation

University of Sydney

2. Clarifying Transition this is to seek clarification of some aspects of the


issues. For example which part of Peters response is it that you dont
understand?
3. Helpful Transition .....you were saying.....? what are your views about this
issue?
4. Impasse Transition this is used to refocus on the issues and bring in a new
direction. For example the main issue here is the cost of replacing the fence,
what other quotes have you had? or Peter, could you tell John what
timeframes you have in mind when you are ready to replace the fence?
5. Empathetic Transition it is about recognition of the importance of the issues
and the concerns of the parties. For example what worries you about this
suggestion?
Early agreements
The mediator should acknowledge and take notes of points of agreement between
the parties; however, he/she should not allow this apparent agreement short cut the
process. The parties need to have the chance to discuss the underlying issues.
Agreements last longer if the underlying issues have been fully explored and
discussed. If offers are made early, hold onto them and reality test them by
exploring the underlying issues.
Language and Communication styles:

Use reporting speech style


Open questions to elicit more information
Closed questions to end repetitiveness and/or to elicit specific response
Active listening
Language to allow a structured/focused discussion between the parties
Picking up on breakthrough

Picking up on Breakthrough:

I wasnt aware of......


I wasnt there when.....
I didnt think of it that way at the time....
I didnt know that you were hurt.....
Sorry about......
May be we should ...
I wish you had told me then...
That explains it...

62 Community Mediation

University of Sydney

Examples of Reframing:

All I am asking for is a space that I call home just like it was before he started
having late night parties every friggin day.
o Reframed to, You want your home to feel like it used to be
You are nothing but a lazy bum. You make me feel Im here just to cook,
clean and make you feel comfortable.
o Reframed to, You sound distressed and feel that you dont have time
for yourself because you of the house chores.
I dont give a damn about your family and I wont make them welcome in my
home. Why should I when they abuse me all the time and you do nothing
about it.
o Reframed to: You sound angry because you feel you are not
supported by X.

Golden Rule:
Before asking the question, ask yourself who needs to know and for what purpose.

63 Community Mediation

University of Sydney

STAGE 7: PRIVATE SESSIONS


Purpose
1. To enable the parties to speak freely about options in a safe environment, and
in confidence
2. To allow the mediators to play the devils advocate by reality testing of
possible outcomes.

Checklist
9 Confidentiality maintained
9 Purpose explained

9 Ground rules reviewed


9 Time equally distributed between parties
9 Suitable arrangements made for party not in session
9 Future focus maintained
9 Possible outcomes (BATNA, WATNA) reality tested
9 Mediators role (no expert advice) maintained
9 List of items checked for coverage
Key Skills
1. Communication
2. Team work
3. Option generating
4. Questioning/reframing
5. Engaging
6. Reality testing
7. Summarising
64 Community Mediation

University of Sydney

PRIVATE SESSIONS
When?

All/most list of items discussed between the parties


Parties not moving forward
Impasse
Parties need to explore options in private
Points of agreement established
One party or both threatening to walk out
One party or both feeling angry and frustrated with each other and unable to
focus on the issues
One or both parties are hesitant to engage in the process or discussion
One party has special needs that need attending to in private
Support people overstepping their role

Rules applicable for Private Sessions:

Confidentiality
Neutrality of the mediator
Mediator can play the devils advocate to reality test options
No counselling and no expert advice
No influencing or favouring particular direction against partys wishes
Mediator is a sounding board
Parties make their own decision and they are the ones who will announce
them in the post private sessions
Ask questions for the partys benefit only
Create relaxed environment but remain professional

How?

Start with the party who started telling the story second
Be mindful at all times of the needs of the excluded party who is waiting
outside
Remind the parties that confidentiality may not be adhered to if a serious
criminal act is disclosed.
Ask the excluded party to think over his/her options while waiting outside
Start the introduction to the session in a positive tone
Ask the parties about their feeling about the session so far
Acknowledge anger, frustration, distress as well as the positive aspects of the
discussion so far

65 Community Mediation

University of Sydney

Introduce the session by explaining the purpose of it with emphasis on

Confidentiality
Timeframe i.e. 10-15 minutes
Ownership of the proposals
No advice, expert or otherwise, will be given
Future direction
Able to clarify past actions/behaviours, but not to dwell on them or
repeat the discussion from the exploration stage.
Able to talk about feelings and concerns
Sample Questions:

How is the mediation going for you?


What would work for you in this situation?
What would it take to resolve this issue today?
How does it feel living next door to X?
How changes would you like to see happen to make life easier for both of
you?
Is there anything you could do?
Whats your thinking about believing the court would rule in your favour?
What happens if you dont resolve the issues today?
What would it be like going home with/out an agreement?
Your partner is not here with you, what would he/she think if you dis/agree?

66 Community Mediation

University of Sydney

ENCOURAGING RESOLUTION
Discuss the benefits of resolving the situation

Consider increased harmony, reduced stress, lower costs, greater productivity


and effectiveness
Explore the cost of not resolving the issue

Explore blockers to further discussion

Is the other party backed into a corner? What can be done to save face?
Identify areas of misinterpretation expectations, motives, points of view,
feelings, values, needs, concerns etc
Consider the relationship with the other person. Could a relationship of
greater trust be developed, independent of solving the problem?

Divide the conflict resolution process into smaller steps

Define the issue clearly


Explore each partys needs & concerns
Identify common ground
Clarify the outcome to which both parties are aiming

Explore each part of the conflict

Is power being used appropriately?


Is there evidence of empathy?
Have perspectives, needs and concerns be clearly communicated?

Explore multiple resolutions to the problem

Consider what parties have invested in the problem and the solution
Provide opportunities for parties to step back emotionally
If resolution can be found for both parties consider what other positive aspects
the parties may take away from the mediation

Adapted from The Conflict Resolution Network P O Box 1016 Chatswood

67 Community Mediation

University of Sydney

STAGE 8: NEGOTIATION
Purpose
To move the parties into a principled negotiation (3rd position) and to focus on their
future relationship.

Checklist
9 Confidentiality maintained
9 Impartiality maintained
9 Future focus maintained
9 Options put forward and discussed
9 All options considered and responded to
9 Options and responses summarised
9 Points of possible agreement noted
9 Needs of each party attended to (inclusive)

9 Parties decisions are owned


Key Skills
1. Communication
2. Summarising
3. Questioning
4. Reframing
5. Engaging
6. ....................................

68 Community Mediation

University of Sydney

NEGOTIATION
Introduction

Reflect on earlier stages


Highlight positives and common grounds
Highlight the future focus
Repeat the confidentiality of the private sessions rules
Invite offers and counter offers from the parties

Strategies

Maintain high level of creativity


Keep the parties engaged with each other and with the mediator
Encourage direct communication between the parties
Keep parties focused on the issues and common interests
Provide ongoing summaries of options
Prompt parties with open/clarifying questions
Use the whiteboard to write down points of dis/agreement
Use the list of items to show progress
Reframe parties positions
What if

69 Community Mediation

University of Sydney

LISTENING & SUMMARISING

Exercise 1
Partner A: Share a personal story/work/other of a specific event with a partner for
about 2 minutes.
Partner B: Listen to your partner without interrupting. When they have finished give
them a summary of what you heard.
Partner A: Give the listener a feedback on the extent to which he/she has captured
the main issue/s.

Exercise 2
In your pairs share a story of a time when you felt not only heard but uplifted by the
way in which someone listened to you. What qualities in the listener made this
experience positive?

70 Community Mediation

University of Sydney

TRACKING PROGRESS
Accept
Paraphrase
Acknowledge
Clarify
Reframe
Validate
Affirm Agree
Expand
Congratulate
Above the line

Neutralise
Deny
Ignore
Sidestep
Disagree
Ridicule
Blame
Invalidate
Change timeframes
Make wrong

71 Community Mediation

University of Sydney

STAGE 9: AGREEMENT
Purpose
To provide the parties with a detailed record of what they achieved with an
identifiable outcome. It also gives the parties a sense of closure of the past with a
future direction.

Checklist
9 Confidentiality and impartiality maintained
9 List of items checked for coverage against the outcome
9 Agreement written in a positive and non blaming/incriminating language
9 Active participation of parties in drafting of the terms of the agreement
9 Parties demonstrate ownership of the agreement
9 Written agreement realistic with an emphasis on details
9 Agreement signed by all parties
9 Copies of agreement given to all parties
9 Consent given by parties to copies of agreement provided to 3rd parties (if
any).

Key skills
1. Communication
2. Reframing
3. Active listening
4. Writing
5. ....

72 Community Mediation

University of Sydney

AGREEMENT
TYPES OF AGREEMENTS
Written
All issues discussed and agreed upon are written down in great detail and signed by
all parties present and the mediator.
A written agreement, subject to parties approval, may include a section for items
that remain unresolved, if any. This section notes down the item and each partys
position on the item. Parties may wish to revisit those items in the future.
Verbal
If the parties choose not to have the agreement in writing, the mediator informs the
parties of the items discussed and the terms of agreement verbally before ending the
session. The mediator may, with the permission of the parties, keep a written copy
of the terms of agreement should it is needed by the parties in the future.
What is a Good Agreement

Written in the parties own words


Attention paid to all the details
Covered all/majority of items listed
Parties feel satisfied to take home
Written in a positive non-blaming language
Free from jargon
Easy to read and conveys one message to both parties (no room for
misinterpretation)
Clauses are number and issues flow in a logical order
Contains a clause about what to do should a problem arises in the future
between the parties.

73 Community Mediation

University of Sydney

STAGE 10: CLOSURE


Purpose
To formally conclude the mediation session and for the parties to have a sense of
closure.

Checklist
9 Parties congratulated on the outcome (if agreement)
9 Positive aspects of the mediation highlighted (agreement or not)
9 Philosophy of mediation summarised
9 Parties reminded of their ownership of the outcome
9 Confidentiality of the mediation reaffirmed
9 Parties informed of future mediation if the need arises
9 Parties safety is considered when leaving the venue
9 Parties special needs are attended to, if any.

Key skills
1. Communication
2. Summarising
3. Motivation
4. Reframing

74 Community Mediation

University of Sydney

CLOSURE

Congratulate the parties on reaching an agreement and on their joint work in


making it happen

Reaffirm the confidentiality of the mediation

Formally close the session

Things to be mindful of:

Dont allow any further discussion of the issues

Keep focused on the agreement

When saying goodbye, dont stay behind with one party for whatever reason,
except safety considerations

Dont go into debriefing with the co-mediator (if co-mediation) until the parties
have fully exited the venue

75 Community Mediation

University of Sydney

MEDIATOR SKILLS
Situation 1
After listing the issues on the board, you invite the parties to talk about the issues.
Party A sits there and remains silent. He doesnt respond to your open questions
and invitations to respond to Party Bs statements. Party B gets annoyed at Party Bs
silence and about him staring at him all the time. Party B threatens to walk out.
Party A remains unmoved and un-phased by Party Bs threats.
A. How will you manage the situation?
B. How would you manage the situation if Party B does walks out?
C. What skills are required?

Situation 2
During the story telling stage, Party B keeps interrupting Party A. You asked him a
number of times to stop and listen to Party As story. Party B complies for a minute
or two and then interrupts again and again.
A. What should you do in this situation?
B. What skills are required?

Situation 3
Party A is highly emotional and keeps crying every time Party B speaks about
divorce and settlement. Party B gets frustrated and says he is getting nowhere in
discussing the issues he is there to discuss.
A. What should you do in this situation?
B. What skills are required?

76 Community Mediation

University of Sydney

QUESTIONING

Effective questions will:

clarify and verify information

help you get more information

show people that you are listening to them

allow you time to process information

help reframe resistance in others

Some hints for asking effective questions

Try asking open ended questions when you want to gather more information. For
example questions starting with How or What ... What will it take resolve this
situation? Open questions are essential in the exploration stage.

Use closed questions - questions which require a yes no or short answer when you want to confirm information. For example: Is my understanding right
on this...? These questions are useful when you are finalising the agreement and
in the closure stages.

Try asking your questions in an open positive way particularly when you are
faced with rigid statements. For example:
o We couldnt do that...
o Question: What would it take to make it possible?

Avoid using why questions. What and How will get a better response without
implying blame.

77 Community Mediation

University of Sydney

HELPFUL QUESTIONS
EXPLORE
Clarify Details
Its too expensive
Too many/much/few
I want the best
Find Options
You cant do that around
here
He/she would never
They always
Weve tried that already
This is the only way to do it

Compared to what?
Compared to what?
What would be best for you?

What would happen if we did?


How can we find ways for it to
happen?
Are there any times they dont?
What was the outcome?
Yes, thats an option.

REDIRECT Move to the positive


It will never work
I wont
Its a failure
Its disastrous
S/hes useless
Its impossible
I cant
I dont want to

What would it take to make it


work?
What would make you willing?
How could it work?
What would make it better?
What is s/he doing that is
acceptable?
What would it take to make it
possible?
You cant see a way at the
moment?
What would you like?

Go back to Legitimate Needs and Concerns


You fool
How dare you do such a
thing
It should be done my way

What do we need to do to sort


this out
What do you dislike about it?
What makes that seem the
best option

Adapted from The Conflict Resolution Network P O Box 1016 Chatswood

78 Community Mediation

University of Sydney

SKILLS PRACTICE: QUESTIONING


Write possible questions in response to the following statements:

I want whats rightfully mine


.......................................................................................................................................
.......................................................................................................................................

That idea is ridiculous


.......................................................................................................................................
.......................................................................................................................................

You cant do that!


.......................................................................................................................................
.......................................................................................................................................

Thats typical of you coming up with options that are totally unrealistic
.......................................................................................................................................
.......................................................................................................................................

79 Community Mediation

University of Sydney

DEBRIEFING
Purpose
To allow mediator/s to reflect on their performance, skills, teamwork,
positive/negative issues, effectiveness and improvement if any.

Checklist
9 Discussed all/some aspects of the session in an open, professional and
honest manner
9 Discussed the issues and behaviours not the person
9 Identified strengths and weaknesses
9 Discussed areas in need of improvement, if any
9 Evaluated the suitability of the venue
9 What else?

80 Community Mediation

University of Sydney

ETHICAL PRACTICE

Situation 1
The Family Court refers Joanne and John for mediation in relation to property and
custody of the children. The mediator interviews both parties and both agree to
attend a mediation session. During the exploration stage, Joanne keeps looking at
Johns face and gradually she starts to withdraw from the discussion and nodding
her head in agreement with everything John says. The parties reach an agreement
without a full discussion of the issues and the session ends with a summary, by
John, of the points they have agreed on.
A. What are the ethical considerations?
B. How should the mediator manage the situation?
C. What skills are required?

Situation 2
You are mediating a dispute between 2 parties that you had no relationship with prior
to the mediation session. During the mediation session, one party starts to tell the
other party the role a third party played in this dispute. The third party in question is
known to you personally.
A. What are the ethical considerations?
B. What should you do? How will you do it?

81 Community Mediation

University of Sydney

Situation 3
During the private session, one party says I am very angry and not happy about this
whole thing because I know this guy pretty well. The party says that there has been
something bothering her for a long time but she wont tell you about it unless you
promise her not to tell anybody about it.
A. What are the ethical considerations?
B. How should the mediator respond? Why?

Situation 4
You are co-mediating a building dispute. You notice that your co-mediator is paying
extra special attention to party A and at times responded to party B statements
instead of allowing party A to respond. At one point during the mediation the comediator says to Party B and says, I work in this field as a building inspector. I dont
believe this is appropriate for you to do as you dont have enough supports for the
wall that you propose to build...

A. What are the ethical considerations?


B. What should you do in this situation? How and why?

82 Community Mediation

University of Sydney

ETHICAL STANDARDS FOR MEDIATORS


Note: The following statement is extracted from the Law Council of Australia's
statement for ethics in the practice of ADR.
Introductory note:
The Law Council of Australia has developed these standards to serve as a general
ethical and practical framework for the practice of mediation. The standards are
intended to apply to all types of mediation. Particular professional and other bodies
may have different requirements. It is expected that the standards will be reviewed
from time to time.
The standards of conduct for mediators are intended to perform three major
functions: to serve as a guide for the conduct of mediators; to inform the mediating
parties; and to promote public confidence in mediation as a process for resolving
disputes. The standards draw on existing codes of conduct for mediators and take
into account issues and problems that have surfaced in mediation practice. They are
offered in the hope that they will serve an educational function and provide
assistance to individuals, organisations and institutions involved in mediation.
1. Definition
Mediation is a process in which an impartial third party - a mediator facilitates the
resolution of a dispute by promoting uncoerced agreement by the parties to the
dispute. A mediator facilitates communication, promotes understanding, assists the
parties to identify their needs and interests, and uses creative problem solving
techniques to enable the parties to reach their own agreement.
Comments
(a) The mediator should provide information about the process, and help the parties
identify their real concerns and all their options. The primary role of the mediator is to
facilitate voluntary resolution of disputes by the parties themselves.
(b) A mediator cannot personally ensure that each party has made a fully informed
decision when reaching an agreement to resolve a dispute, but it is good practice for
the mediator to make the parties aware of the importance of consulting other
professionals, where appropriate, to help them make informed decisions.
2. Impartiality
A mediator may mediate only those matters in which the mediator can remain
impartial and even handed. If at any time the mediator is unable to conduct the
process in an impartial manner the mediator may withdraw. Accordingly, a mediator
must avoid:

83 Community Mediation

University of Sydney

(i) partiality or prejudice; and


(ii) conduct that gives any appearance of partiality or prejudice.
Comments
(a) Whatever their own views and standards mediators should not only not be partial
or prejudiced but should avoid the appearance of partiality or prejudice by reason of
such matters as the parties' personal characteristics, background or conduct at the
mediation.
(b) Mediators should seek to avoid behaviour which, however innocent, may be
interpreted as indicating partiality or prejudice, such as spending more time with one
party than another without good reason, socialising with a party and adopting
different modes of address.
(c) Even if all the disputants agree that they would like the mediator to express an
opinion on the merits, there is a substantial risk in giving such an opinion that the
mediator may no longer appear to be impartial. As a result the mediator may be
obliged to withdraw
3. Conflicts of Interest
Before the mediation begins, the mediator must disclose all actual and potential
conflicts of interest known to the mediator. Disclosure must also be made if conflicts
arise during the mediation. After making disclosure the mediator may proceed with
the mediation if all parties agree and the mediator is satisfied that the conflict will not
preclude the proper discharge of the mediator's duties. After the mediation a
mediator must not act in such a manner as to raise legitimate questions about the
integrity of the mediation process.
Comments
(a) Conflicts of interest may arise in recommending the services of others. It may be
preferable to recommend referral services or associations which maintain rosters of
qualified persons.
(b) External pressures should never influence the mediator. The mediator's
commitment should be to the parties and the process.
(c) Interests which should be disclosed include any association with a party or
adviser or representative of a party, which could reasonably be seen to affect the
impartiality of the mediator.
(d) The mediator should disclose to the participants any circumstances which may
cause, or have tendency to cause, a conflict of interest. In particular a mediator who
is a partner or an associate of any representative retained by either of the parties
should not act as mediator without the fully informed consent of all the parties.
(e) The mediator should not establish a professional relationship with one of the
parties in relation to the same dispute.

84 Community Mediation

University of Sydney

4. Competence
A mediator must not mediate unless the mediator has the necessary competence to
do so and to satisfy the reasonable expectations of the parties. A person who agrees
to act as a mediator holds out to the parties and the public that she or he has the
competence to mediate effectively.
Comments
(a) Competence comprises appropriate knowledge and skills which would normally
be acquired through training, education, and experience.
(b) Mediators should have available for the parties information regarding their
training, education and experience.
(c) When a person is appointed or nominated to a panel or list of mediators, the
appointing court, tribunal, institution, or agency should ensure that the mediator has
through training, education and experience acquired the necessary knowledge and
skill for inclusion on the particular panel or list.
(d) The qualifications for inclusion on a list of mediators should be made public and
available to interested persons.
5. Confidentiality
Subject to the requirements of the law a mediator must maintain the confidentiality
required by the parties.
Comments
(a) As the parties' expectations regarding confidentiality are important; the mediator
should discuss those expectations with the parties and endeavour to meet them.
(b) The parties' expectations of confidentiality depend on the circumstances of the
mediation and any agreements they, and any other persons present at the
mediation, and the mediator may make.
(c) A mediator should not disclose any matter that a party requires to be kept
confidential (including information about how the parties acted in the mediation
process, the merits of the case, or settlement offers) unless:
the mediator is given permission to do so by all persons in attendance
at the mediation with an interest in the preservation of the confidence;
or
o the mediator is required by law to do so.
o

(d)The parties and the mediator may make rules with respect to confidentiality.
(e) If the mediator intends to hold private sessions with a party, the mediator should
before such sessions discuss with the parties the confidentiality attaching to them.
(f) Any reporting which requires a subjective judgment by the mediator of the conduct
85 Community Mediation

University of Sydney

of the parties is likely to destroy the integrity of the mediation process.


(g) Under appropriate circumstances, researchers may be permitted to obtain access
to statistical data.
(h) With the permission of all of the parties, researchers may be permitted access to
individual case files, to observe mediations, and to interview participants.
(i) A mediator should render anonymous all identifying information. When materials
emanating from mediation are used for research, supervision, or training purposes,
the mediator should remove all identifying information from them.
6. Quality of the Process
A mediator must prepare for and conduct the mediation diligently, and with due
regard to the fact that an agreed outcome requires the uncoerced consent of the
parties.
Comment
A mediator's conduct should not be influenced by a desire to achieve a high
settlement rate. If the mediator believes that further negotiations may, subject to the
parties' right to terminate the mediation, lead to a settlement, he or she may
encourage the parties to continue to negotiate even when they seem unable to
agree.
7. Termination of Mediation
A mediator may terminate the mediation if the mediator considers that:
(i) any party is abusing the process; or
(ii) there is no reasonable prospect of settlement.
8. Recording Settlement
If the mediation results in a settlement between the parties, the mediator should
encourage the parties to record those terms of settlement in writing.
Comment
Normally agreement to record the terms of any settlement should be made prior to
the commencement of the mediation. The mediator ought to be cautious about direct
involvement in drafting the terms of agreement, as their involvement in drafting may
be construed as providing legal advice.
9. Publicity and Advertising
A mediator must not engage in misleading or deceptive publicity or advertising. A
mediator must not make any false or misleading statement including statements or
claims as to the mediation process, its costs and benefits, or the mediator's role,
skills, or competence.

86 Community Mediation

University of Sydney

10. Fees
A mediator must fully disclose his or her fees to the parties.
Comment
As early as practicable, and before the mediation session begins, a mediator should
obtain the agreement of the parties regarding all fees and other expenses to be
charged for the mediation and by whom and when the fees and expenses are to be
paid. The better practice is to record in writing the arrangements in respect of fees
and costs. A mediator should not agree to a fee which is contingent upon the result
of the mediation or amount of settlement.

87 Community Mediation

University of Sydney

Role Plays

88 Community Mediation

University of Sydney

THE WILL

Common Facts
Michael Younis died suddenly in July 2009. He had survived his wife Doris by 4
years. They had one daughter Maria, who is now 24 years old. Maria has 1 child
and lives with her husband on the lower North Shore in Sydney.
Twelve months prior to his death Michael told Maria that he had a child from a
relationship hed had a university. He had established contact with this child Geoff,
now 26, and told Maria that he felt obligated to provide financially for him in some
way. Michael said that he intended to make arrangements which would not affect
the existing will.
Michael paid Geoff $600 per month for 10 months prior to his death and $5000
towards first year university fees.
Upon Michaels death his entire estate was left to Maria. This included 2 properties
however; there is a significant mortgage ($300,000) on the more valuable of the 2 as
a result of an unsuccessful business venture. The remaining property is a 3
bedroom unit in Rockdale. It had an estimated value of $550,000 when the market
was at its peak but it is questionable if this is still accurate. The property also
requires renovation.
Geoff has contacted Maria through his legal representative indicating that he intends
to contest the will and seek equal shares in the balance of the estate. The
application has not yet been lodged and it has been recommended that the parties
attempt to mediate the dispute prior to taking any further action.

89 Community Mediation

University of Sydney

THE PARTNERSHIP
Common Facts
Lindsay and Colby have been partners in a training company for 9 years. The
partnership works particularly well: Lindsay is the creative, big picture person and
Colby has more attention to detail.
Colby established the company, Learning Unlimited, 11 years ago and was working
as a sole trader. This meant generating the business, writing programs and
delivering the training. When the business grew Lindsay came on board and was a
real asset. Lindsay was much better in the training room and had a seemingly
limitless ability to come up with new ideas.
They became joint partners 7 years ago and things worked extremely well for a good
5 6 years. In the last 18 months however, there has been tension between
Lindsay and Colby over the direction the partnership in moving in. Lindsay has
wanted to take on more staff, expand and move into e-learning and virtual
classrooms. Colby on the other hand is happy with the way the business is going:
they have a strong & loyal client base and the yearly turnover is very healthy.
Despite the company only having 2 people both Lindsay and Colby are very well
respected and have a reputation for professionalism and reliability.
About 2 months ago Lindsay suggested that they dissolve the partnership. The
discussion wasnt at all productive and ended badly but with no resolution. No
agreement has been reached despite a couple of attempts to talk it through. It is not
clear if the partnership will be dissolved but it is clear that there will be a lot of
argument about partnership assets: they own the freehold on the terrace they use as
an office, a range of equipment and there is the question of the intellectual rights to
the training material they have jointly developed. Then of course there is the name,
the goodwill and the customers.
A mutual friend suggested that they try mediation given that they havent been able
to work it out on their own.

90 Community Mediation

University of Sydney

THE MARRIAGE

Common Facts
Stephanie and George were married for 10 years. They have one child, Tim, aged
6. They bought a house 9 years ago for $250,000. They borrowed $200,000 from
the bank. Stephanie paid $50,000 she got from her father as a wedding gift. The
house is now worth about $500,000 with $150,000 still owing to the bank.
Georges parents gave their son $25,000 to help him buy furniture when they bought
the house.
Stephanie continued to work in the first 3 years of marriage and she earned
similar salary to George. Stephanie stopped work when she fell pregnant as it was a
difficult pregnancy.
Stephanie didnt go back to work after the birth of the baby until Tim started school
last year. Stephanie found a part time job locally that allows her time in the morning
to drop Tim off at the school and pick him at 3 pm.
Stephanie is good with money and she was responsible for taking care of the family
budget. George allowed her and he trusted her skills in managing their finances.
The relationship started to deteriorate because George wasnt putting enough time
and effort in maintaining the house i.e. normal house chores, taking Tim to sports in
the weekends, paying the bills etc.
About 8 months ago, Stephanie went to work but had to leave early because she
wasnt feeling well. She arrived home and noticed Georges car in the driveway.
She walked into the house to find George and another woman naked in bed.
Stephanie was furious and left the house. She went to her parents and stayed there
for 2 days. George apologised and promised not to do ever again. The in-laws
intervened and the couple reconciled their relationship and Stephanie went back
home with her child.
Two months ago, Stephanie found hair on Georges coat that matches the colour of
the woman she caught him with in bed 8 months ago. Stephanie confronted him and
he denied but Stephanie wasnt satisfied with his response and left the home with
her child.
Stephanie sought a legal advice from the Legal Aid telephone line and they advised
her to seek mediation as first option as it is faster and less costly.

91 Community Mediation

University of Sydney

THE BABY

Common Facts
Kevin and Cathy worked together at a property development company in Perth for 3
years. Kevin had been in a long term relationship with Michelle for 18 months but
just prior to Christmas the relationship faltered and they decided to separate.
Kevin and Cathy had one night stand at the office Christmas party. A relationship
between the two never developed. Kevin left the company 2 months later and
moved to Sydney. He didnt maintained direct contact with Cathy but 13 months
later heard through a mutual friend that Cathy had given birth to a baby boy, Josh.
Kevin contacted Cathy who verified that the child was his. Despite naming Kevin as
the father on the birth certificate she told him that she did not want him involved in
the childs life in anyway.
Kevin made several attempts to contact Cathy with a view to establishing a
relationship with the child. Cathy was living with her parents who were totally against
this (particularly given that Kevin was Aboriginal) and there were a number of terse
exchanges both via phone and email. Cathys parents changed both the phone
number and the email address to ensure that Kevin was unable to contact Cathy.
Kevin has made an application to the Family Court for contact rights with the child.
He has been told that mediation needs to be attempted before the matter can
proceed in court. Cathy has agreed to mediation. A telephone mediation was
offered given the distance between the two parties however, Kevin has arranged to
travel to Perth for the mediation. He informed the mediator that hes parents still
reside in Perth and that the mediation may have more chance of success if it is faceto-face.

92 Community Mediation

University of Sydney

THE FENCE

Common Facts
John Smith and his wife, Susan, are middle aged couple with two children aged 10
and 12.
Cameron Taylor and his wife, Vivian, are also middle aged couple with two children
aged 11 and 13.
Susan and Vivian know each other from primary school days and were friends but
lost contact after going to high schools.
They met again when they happen to purchase home land package in the same
estate at the same time. They got together again and renewed their friendship.
Both families had a healthy relationship when they moved into their respective new
homes some 15 years ago. They used to visit each other often, go out for dinners
and spent holidays together. John and his wife love nature and planted few trees in
their backyard alongside the fences with the assistance of Cameron.
The Smiths bought a family business 5 years ago and devoted their entire time in
running it. They relied on the Taylors to mind the children while they were out
developing the business. The two families kept on going out for the occasional
dinner but not as often as it used to.
The Smiths, due to the nature of their business, established new friendships and
relationships. They are now having dinners for and with their new business friends.
Business was booming and proved very successful. They improved their home and
bought new furniture, new car, a swimming pool etc.
Three years ago, one of Johns children was playing in Camerons home and hurt
himself. Since then the Smiths stopped sending the boys to play with Camerons
children and hired a babysitter to mind the children when they are out and about.
The Taylors approached the local Council and made a complaint about the noise
coming from next door, about the tree hanging over the fence and blocking their
downpipes, and about the nude parties that goes on all night.
The local Council suggested mediation as an option at this point in time.

93 Community Mediation

University of Sydney

THE JOB

Common Facts
Karen and Abigail are colleagues working for a big department store. Abigail is
acting manager and Karen is a sales person. They have known each other for over
5 years and got on well with each other.
Karen is well connected with management personnel.
A staff member made a complaint about Abigail accusing her of sexual harassment.
The staff member alleged that Abigail asked him out and suggested that they go
home together for some bedtime fun. The staff member further alleged that this was
not the first time. Abigail is a single woman and has no partner. She has been on
her own since she broke up with her husband some 3 years ago.
Management stood Abigail down and appointed Karen in her place. The case went
to court and Abigail was cleared and the allegations were dismissed. Abigail asked
for her job back and management said no as Karen was doing excellent job.
Management reminded Abigail that she was acting in the position and that her
substantive position is sales person.
Abigail accepted going back as a sales person and being supervised by Karen.
Karen made a number of changes to the staff roster and to lunch breaks. Abigail
asked if she could choose her own starting and finishing time and Karen said no and
that she has to fit in like the rest of the staff.
Abigail wasnt happy about this. She walked out and filed a Workers Compensation
claim on the grounds of unfair treatment.
The Human Resource manager suggested mediation between Abigail and Karen as
a way of resolving the dispute. Both have agreed to attend a mediation session.

94 Community Mediation

University of Sydney

THE FLATMATES

Common Facts
Sandra and Rebecca are flatmates and in a casual relationship. They drift in and
out of sexual relationship with each other but have always maintained a strong
friendship. They have known each other for 10 years and have shared
accommodation ever since.
Four months ago, they moved into a 2 bedroom unit because it was close to their
office and the bus stopped just outside the door. They decided to advertise for a 3rd
flatmate to help them pay the higher rent. They both decided to lease the 2nd
bedroom to a male, Robert, their age. They both liked him and thought he would fit
in well with them.
For the past 3 months Sandra noticed that Rebecca and Robert spend more time
with each other than with her. She also noticed that they go out often leaving her
home alone. There were times when both of them sat in Roberts bedroom for hours
with the door shut.
Sandra questioned Rebecca about this and Rebecca told her there is nothing to
worry about. Sandra wasnt happy with this response and demanded to know whats
going on between them. This escalated to a shouting match between them and they
stopped talking to each other.
Two weeks ago, Sandra told Rebecca that she was moving out and that she has
found another place to live in. Rebecca told Sandra that she couldnt do that
because her name is on the lease. Rebecca also told Sandra that she couldnt take
any of the furniture because Rebecca had no money to buy new furniture to replace
what Sandra would take.
Sandra threatened to go to court to get her furniture as she needs it for her new
room. Rebecca threatened to tell Sandras parents about their sexual relationship.
Robert suggested that they both go for mediation to sort things out between them
without the court. They both agreed to go for mediation about the furniture and the
lease.

95 Community Mediation

University of Sydney

THE RENOVATION
Common Facts
Bronwyn & Greg Moore engaged the services of Jacques Renovations to put a
plaster skim on all the walls and ceilings of the Moores 1930s inner city 2 bedroom
apartment. Jacques was recommended by a friend of Bronwyns, Tom who
suggested that Jacques could move into the apartment for the 2 months that
Bronwyn and Greg were overseas which would reduce the cost of the renovation.
Jacques was a one man operation and was between accommodations and this
arrangement seemed to be beneficial to both parties.
Bronwyn & Greg met with Jacques who told the Moores that he was also able to do
the painting of the unit and the work would be completed by the time they returned
from their holiday. The painting included the walls, skirting boards and picture rails.
Greg had already stripped the paint back on the picture rails and was half way
through the skirting boards. Greg suggested that he leave the heat gun for Jacques
to make stripping the paint easier, which he declined.
It was agreed that Jacques could stay in the unit for the 2 months and complete the
work at his leisure during this time. The cost of the work would be $7,000 with
$1000 being paid upfront and the remainder being paid upon completion.
The Moores returned to find the work completed but not to the standard they had
expected. Jacques disagreed that the work was not to industry standard and
demanded the outstanding fee. The Moores have refused to pay.
The matter is before the court however, the magistrate has referred the matter to
mediation in the hope that the matter can be resolved outside legal proceedings.
Both parties have agreed to mediation. Greg (Bronwyn) and Jacques will be present
at the mediation.

96 Community Mediation

University of Sydney

Coaching

97 Community Mediation

University of Sydney

Feedback on mediation simulation


Name
1
Not evident
2
Area for development
3
Good
4
Very good
5
Excellent
N
Not applicable in this simulation

Simulation

OPENING STATEMENT

Coach

Welcome/Introduction
Forms of address/names established
Housekeeping i.e. toilets, breaks, parking, timelines etc
Positive tone set
Special needs identified
Goal of mediation described
Principles explained
Confidentiality
Voluntary
Flexible
Roles explained
Mediator - impartial
Parties
Others
Process explained
Ground rules established
Authority of parties to settle established
Agreement to Mediate is signed

98 Community Mediation

University of Sydney

Comments

PARTIES OPENING STATEMENTS Story telling

Consideration of who should begin


Appropriate non verbal language
Eye contact maintained where possible
Appropriate time allowed for statements
Ground rules maintained
Uninterrupted
Encouraged to listen respectfully
Process adhered to
Each parties statement heard before summaries
Encourage Party 2 to make their own statement rather than
respond to Party 1
Active listening
SUMMARIES
Parties stories summarised accurately
Parties own words used where possible
Reframing avoided
Impartiality maintained
Checks with parties for accuracy
Additional comments

99 Community Mediation

University of Sydney

Comments

AGENDA SETTING

Commonalities identified
Items both mutual and neutral
Items simply stated
Checks for agreement & approval
Appropriate use of whiteboard
EXPLORATION
Introductory statement made explaining stage
Parties encouraged to communicate directly with each other
One issue dealt with at the time
Ground rules adhered to
Parties not pressured/encouraged to reach agreement
All or the majority of issues explored sufficiently
Interaction between parties is balanced
Appropriate level of intervention by mediator
Transition to private session handled appropriately
Additional comments

100 Community Mediation

University of Sydney

Comments

PRIVATE SESSIONS

Suitable arrangements made for party not in session


Purpose explained
Confidentiality explained
Party asked to comment on how they are going
Future focus maintained
Possible options explored
Reality tested possible outcomes (BATNA, WATNA)
Impartiality maintained
Time equal allowed for both parties
NEGOTIATION
Confidentiality maintained
Impartiality maintained
Parties encouraged to communicate directly with each other
Focus on future maintained
Constructive facilitation of problem solving and option generation
Options are reality tested
Additional comments

101 Community Mediation

University of Sydney

Comments

AGREEMENT

List of items checked against the outcome


Agreement written in a positive and non blaming/incriminating language
Parties actively participated in the drafting of the terms of the agreement
Written agreement is realistic with an emphasis on details
Agreement signed by all parties
Copies of agreement given to all parties
CLOSURE
Parties congratulated on the outcome (if agreement)
Positive aspects of the mediation highlighted (agreement or not)
Philosophy of mediation summarised
Confidentiality of the mediation reaffirmed
Additional comments

102 Community Mediation

University of Sydney

Comments

SKILLS SUMMARY

Active listening
Reframing
Questioning
Summarising
Building rapport
Analysis (of issues)
Option generation
Appropriate body language
Reality testing
Doubt creation
Acknowledgement
Teamwork (co-mediation)
Whiteboard use
Additional comments

103 Community Mediation

University of Sydney

Comments

DEBRIEF
1. What did the mediator feel they did well?

2. What did they feel they could have done differently?

3. What did the parties feel the mediator did well?

4. According to the parties, what else could the mediator have done that would have been helpful?

5. Coachs overall summation

104 Community Mediation

University of Sydney