Annex 2 Mediation Advocacy Practical Skills Requirements

Mediation Advocacy Practical Skills Requirements

The following areas of practical skills are required for effective Mediation Advocacy. The list is not necessarily exhaustive or mandatory and is offered as guidance. 

1. Pre-Mediation Stage

 A. Case diagnosis and process selection

  1. Conflict diagnosis, including conflict (de)escalation models.
  2. Understanding when a neutral third party can add value in a conflict and assessing the quality of that value.  Being able to convincingly convey that understanding to the client.
  3. Using dispute assessment & risk analysis methodologies.
  4. Identification of relevant parties, stakeholders and participants to the process.
  5. Identifying the most appropriate process.  Skills to assess (contra-) indications, pros and cons, and strengths and risks of each method. Being able to convincingly convey that understanding to the client.
  6. Design, customization and implementation of appropriate conflict resolution processes.
  7. Considering possible application of hybrids and other process design options.
  8. Pre-mediation analysis.
  9. Application and interpretation of alternatives analysis, BATNA, WATNA, PATNA and RATNA
  10. Whether or not to use norms to set ZOPA[4] and leverage such analyses.
  11. Defining time frames.
  12. Understanding different levels of readiness of the client to accept mediation and the ability to address their concerns effectively. 

 

B. Clarifying and initiating process

  1. Initiating contact with the other parties or their representatives, and/or with mediation institutions.
  2. Consider whether the parties wish to use norms, subjective interests, or a combination of the two to resolve the dispute, and what norms (if any) to use (e.g., laws, customs, community response).
  3. Consider the relevance of past, present or future events, and whether to focus on the past or the future as a basis for seeking resolution of the dispute.
  4. Counselling clients, principals, participants and relevant stakeholders, as appropriate to identify and resolve procedural issues and options separately from substantive issues to be mediated, and if so when and how to mediate.  Explaining mediation goals and process.
  5. Communicating effectively with the other side to bring them to mediation in the right frame of mind.
  6.  Identifying and overcoming possible misperceptions (e.g., concerns of appearing to be weak if agreeing to negotiate).
  7. Collaborating and negotiating with other parties, their representatives and the mediator about process choice and design, logistics and timing. Setting, collaborating and negotiating about mediator selection criteria with the other parties and their representatives and where appropriate, working with the other parties to identify, set and implement each mediation parameter. 

 

2.         Selection of neutral and preparation stage

 

A. Identify, negotiate and select mediation process and mediator

1) Mediation process and mediator

  1. Selecting the most suitable mediation procedure, style and approach (e.g. evaluative, transformative, facilitative, narrative, solution focused, eclectic, hybrid forms, co-mediation, joint sessions and/or caucus-based), including consideration of common mediation approaches used locally and elsewhere
  2. Determining whether mediation should be administered or self-administered. Applying specific aspects of court-connected mediation processes.
  3. Working with the participants and the mediator(s) to determine the need for a mediation agreement (if any), select a venue, identify participants, use opening statements (if any), time allocations (if any), prior written submissions (if any), the mediator(s) role and conduct; discuss the use and frequency of joint sessions and/or caucuses (if any).
  4. Finding, selecting and appointing the most suitable competent mediator(s) for this case, these parties and the specific circumstances.
  5. Knowing when co-mediation is appropriate and how to select and convene a co-mediation team in collaboration with the other side.
  6. Knowing how to select a suitable mediator for a particular case, including, mediation style and skills, and identifying the need for a specialist or generalist.
  7. Collaborating and negotiating with other parties, their representatives and the mediator about process choice and design, logistics and timing.
  8. Using the IMI Decision Tree online or using a software application or other tools to assist in achieving any of the above.[5]

2) Administrative, formal and legal aspects of coordinating a mediation.

  1. Negotiating and (where applicable) drafting the mediation agreement.
  2. Dealing productively with any obstructive or fencing behavior of the other party or the party's representatives.
  3. Advising on mediation clauses, mediation rules and regulations of mediation providers and professional bodies, ethical guidelines, codes of conduct, complaint schemes, disciplinary processes, liability issues, confidentiality, privacy, refusals to participate, mandates, and authorities to settle.

B. Preparation           

  1. Composing mediation teams. Identifying/negotiating attendees on each side.
  2. Information strategy: when (and when not) to share what information with whom. Determining information that is needed.
  3. Identifying the necessary documents to be exchanged with knowledge of applicable confidentiality rules.
  4. Timing of the revelation of interests and options.
  5. Advising on the roles of client and advocate.
  6. Separating interests & positions.
  7. SWOT analysis skills (own client and, hypothetically, the other party).
  8. Preparation of self, client and the mediator.
  9. Drafting a Mediation Briefing or Position Statement and a Strategic Mediation Representation plan for cases where such materials are required.
  10. Using an IMI Online Evaluation (“OLE!”) form or other tools to assist the participants in their preparations.[6]

 

3.         Mediation stage:

A. General, Monitoring Progress

  1. Monitoring progress and checking whether the process needs to be adapted to the circumstances.
  2. Awareness of the key factors for success and failure in mediation.
  3. Collaboration with own client, the other party and the other party's representative to facilitate a constructive outcome based on problem-solving techniques.
  4. Counselling the client on financial, tax, social, legal, reputational, commercial and other relevant interests.
  5. Making an informed choice between several approaches and options for resolving the issues, and knowing when to suggest each approach (including whether and when to terminate the mediation process as necessary).
  6. Balancing between (1) claiming value and advocating the client's interests and (2) creating value and motivating participants to reach a settlement.
  7. Acting as client coach and "reality check” to help them gain familiarity and confidence with the process, their relevant roles and whether their positions are compatible with their interests.
  8. Collaboration with the mediator, tasking the mediator, ensuring the mediator understands the client's core interests and constructively designing and implementing the mediation process from the perspective of all parties.

B. Opening statements and Agenda Setting

  1. Breaking the ice and creating constructive conditions for a productive mediation process. Identifying interests, topics for discussion, information to be exchanged (give and get) and possible impasses to be overcome.
  2. Agenda setting and time and expectation management.
  3. Coaching clients, where applicable, to prepare and deliver effective opening statements. Opening statements in accordance with the style of mediation or negotiation approach. Understanding what type and style of opening statement to use (e.g., argumentative, persuasive, explanatory, expressive etc.) as may be most effective, what to include and omit, and possibly proposing to defer to a later point in time or dispense with formal statements when this would be more effective.  Deciding who should deliver the opening statement.
  4. Supporting information exchange by summarizing facts and addressing queries from the other party, the other party’s representative or from the mediator.
  5. Interpreting the other party’s opening statement and identifying key information, interests, opportunities and impediments.

 

C. Exploration

  1. Generating effective negotiation approaches, explanations of first offers, package deals, concession strategies and negotiation techniques.
  2. Eliciting interests and distinguishing positions from interests.
  3. Applying communication skills like active listening, reformulation and non-positional communication skills.
  4.  Understanding and dealing with emotions, social and status issues, and international and cultural aspects and conveying this understanding to parties.
  5.  Identifying, analysing and dealing with impasses, breaking deadlocks and knowing how to support the client and mediator on these issues.
  6. Dealing with clients’ instructions that may be difficult to reconcile with opportunities and options and resolving those inconsistencies.
  7. Balancing confidentiality and the need to provide the information necessary for resolving the dispute and reaching the best possible outcome.
  8. Dealing with difficult parties, party representatives, clients or inappropriate mediators. Ability to work with the mediator and the other parties and their representatives to overcome impasses.
  9. Applying reality-testing techniques to manage the expectations of the client and the other party.
  10. Identifying the right time and work with the mediator to call for caucus, time-out, breaks, private client meetings, joint sessions, changes of venue and changes of negotiation team members.
  11. Caucus: 
    1. Ensuring any caucus is handled ethically and confidentially.
    2. Working with the client and mediator to provide information useful in resolving the dispute.
    3. Exploring options with the mediator.
    4. Seeking and providing positive and constructive feedback to/from the mediator.
    5. Working with the mediator to identify the possible use of norms to generate, set and/or advocate possible outcomes.

 

D. Generating Options & Negotiation

  1. Preparing the client on how to effectively react to, and consider, unlimited possibilities.
  2.  Creating and prioritising interests and options.
  3. Where appropriate, assisting the client to be an effective negotiator (problem-solving, interest-based, positional, etc.).
  4.  Formulating first offers.
  5. Responding to first offers.
  6. Identifying topics for further discussion and information to be exchanged.
  7. Ensuring that the mediator presents the options proposed during private caucus accurately and maintains confidentiality.
  8. Working with the other party, the client, and the mediator to generate, develop, brainstorm and reality-test options.  Ability to engage in and consult on several methods for generating options.
  9. Utilizing the processes of negotiation, and party and participant dynamics, as contextualised by the choice of mediation process.
  10. Establishing mutually acceptable norms or reference criteria.
  11. Identifying objective and measurable criteria by which to assess feasibility and possible implementation of options.
  12. Responding to positional tactics.
  13. Using mediators for reality testing and/or for evaluative feedback where appropriate.
  14. Using mediators to support and lead the parties and/or to help them formulate offers or responses.
  15. Identifying and dealing with impediments, and enlisting the mediator’s support.
  16. Dealing with unexpected surprises or inconsistent negotiation styles.
  17. Maintaining momentum and dealing with decision fatigue.
  18. Dealing with reactive devaluation.
  19. Checking for confirmation bias.
  20. Clarifying intentions and motivations.
  21. Adapting communication styles and strategies in accordance with progress made and other participants’ conduct. 

 

4.         Closing and Implementation 

A. Closing

  1. Securing the best available and workable outcomes that circumstances permit.
  2. Deciding whether to end or walk out of a mediation.
  3. Formulating final offers.
  4. Responding to final offers.
  5. Dealing with incomplete settlements or inability to settle.
  6. Deciding whether and if so how to request a mediator’s proposal.
  7. Maintaining positive momentum and leaving a window open.
  8. Generating joint or single communication strategies and dealing with possible reporting or reputational impacts.
  9. Facilitating the mediation to progress to a comprehensive, substantive, clear, valid and enforceable agreement (as SMART[7] as possible), preserving such relations as may be desired between the parties.
  10. Managing setbacks in the final stage of the mediation if new issues emerge.
  11. Sustaining a constructive and amiable atmosphere to promote successful implementation of the agreement (keep the door and communication open).
  12. Assisting with the drafting of any publicity statements and contingency Questions & Answers, where appropriate.
  13. Dealing with partial settlements and managing contingencies where applicable.
  14. Dealing with parallel judicial, administrative, arbitral or other proceedings
  15. Closing documents and ceremonies (if any).
  16. Possible rescheduling of additional mediation sessions with the same or different mediator(s), and when or where to conduct such sessions.
  17. Considering possible final procedural options, hybrids and proposals.
  18. Understanding that not all disputes result in a settlement directly after a mediation and knowing how to identify and establish possible next steps to retain positive momentum and reschedule the matter for future consideration and settlement as and when appropriate.

B. Implementation

  1. Considering possible compliance and enforcement requirements.
  2. Knowing the relevance of Consent Awards or homologation proceedings, where applicable and possible, as a means to ensure compliance.
  3. Monitoring compliance and dealing with any post-settlement issues.
  4. Maintaining a good-faith approach towards the mediated settlement agreement and dealing with possible surprises.
  5. Ability to deal with and finalize any outstanding post-settlement issues.
  6. Dealing with any final settlement formalities and possible contingent documentation
  7. Securing such appropriate court or tribunal recognition for a settlement (e.g., use of consent awards).
[1] The term Mediation Advocacy have been used throughout these Criteria for ease of reference.  However, please see section 3 for specific guidance on the appropriate use of the designations "Mediation Advocate" and "Mediation Advisor".

[2] IMI Bibliography will be built up over time. 
[3] BATNA = Best Alternative to a Negotiated Agreement; WATNA = Worst Alternative to a Negotiated Agreement; PATNA = Probable Alternative to a Negotiated Agreement; RATNA = Realistic Alternative to a Negotiated Agreement.
[4]  ZOPA = Zone of Possible Agreement.
[5]  See http://www.imimediation.org/decision-tree
[6]  See http://www.imimediation.org/ole[
[7]  SMART = Specific, Measurable, Achievable, Relevant and Timebound.