Dag 7 - Mediation

Microdynamics
The first microdynamic that the mediator employed was his way of bidding the parties welcome. He started with small talk to reduce any tensions surrounding the unknown and encountering the opponent, followed by handing over the mediation room and facilities to the parties for use as they saw fit. Then, he also handed over the responsibility of finding a resolution for the conflict to the parties, thus activating a microdynamic leading to empowerment.
Analysis of Empowerment, Recognition and Influence
The dynamics of the process is very dependent of the level of empowerment and recognition. The participants in mediation have different power at different point of the process. The section provides the reader with tools to analyse the level of empowerment and recognition and tools to explore who at the moment have most power.
Roles, Power and Discourse Analysis
A transcript of the Jacob and Awwad dispute is analysed.
Discourse Analysis
Discourse analysis can surface who has power and surface a speakers intentions. Exchanges follow certain natural laws which are very useful for the mediator to know about.
Narrative Mediation
A transcript of the Marlene and Dennis dispute is analysed.
Cognitive-systemic Mediation
A transcript of the Vicky, Janice and Henri dispute is analysed.
Conflict Theory
Like teaching psycho education to people needing insight in the interconnection between psychological strain and bodily pain, education in the emerge, the dynamics and the consequences of conflict may improve people’s awareness on the nature of conflict and how to deal with, how to live with and how to get past conflict.
The Relation
Conflicts are experienced differently depending on the parties’ relation to one another. In law, this relation is subdivided in conflicts with inside and outside contracts. When law uses the contract term, it is because the law in relation to private parties operates in regards to rights and obligations. For parties without any contractual relation, this is not sufficient coverage. Parties to a conflict have occasionally had a relation of trust on which the original relation was built. Western marriages are essentially built in that way – a relation of trust. The parties who are now in conflict may have also been put in relation to one another. Examples of this could be children in relation to parents, and parties in conflict with one another due to the forced removal of children.
The Conflict Ladder
Depending on their relation, the parties to conflict encounter one another on the steps of the so-called conflict ladder, a metaphor for the development of conflict. Diana and John Lampden, Londonderry, Northern Ireland, began to study how conflicts and disagreements influence the parties and their community. It soon became clear to them that the escalation of conflict was connected to certain dynamics, and their work showed that these dynamics could have a promoting as well as a hampering effect in the escalation of conflicts. The Lampdens described conflicts, which began as a disagreement, could escalate to the point of serious harm
Reciprocal Conflict Ladder
Diana and John Lampden became aware of the fact that the above-mentioned dynamics at each step could be reversed to its reciprocal circumstance with the application of other dynamics. By tuning into the escalating dynamics, they saw that this could be reversed to détente (relaxation of tension) – that is, one could climb up the conflict ladder, but one could also certainly climb down as well.
Matching Styles
If we turn our focus toward the mainstreams of mediation presented earlier, we can see that each of them is designed to deal with escalating dynamics at the different steps on the conflict ladder.
Structural Conflicts
A conflict may arise because two insurance brokers were instructed to sell insurance policies on a commission basis in overlapping market areas. A conflict may arise as a result of the administration’s decision that a child should no longer live with his biological family but rather with a foster family. We refer to this as being a structural conflict.
Intrapersonal Conflict
Individuals who, under normal conditions, manage to maintain a relatively even balance between fulfilment of their own needs and duty, may become imbalanced when under great duress so that either duties’ (superego) pole or fulfilment’s (id) pole is favoured, observable without a psychiatrist’s diagnosis. These situations are generally referred to as intrapersonal conflict.
Conflict Style
Occasionally a party to mediation is very assertive but has little capability for empathy, and sometimes a party has great capability for empathy but very little for assertion. Assertion and empathy share a connection to the poles mentioned above in regard to self-realisation or steering by a strong sense of duty. If both parties to a conflict are assertive but lack empathy skills, you will find much confrontation in the parties’ conflict. If the parties are very empathic but very hesitant or unskilled in assertion, the parties lacking the ability to solve problems reap the fruit of their own habit by avoiding confrontation with the problem at hand.
Subjective Meaning
Goal-rational meaning – based on a choice of goals out of a clearly defined value horizon and on a choice of means, also including possible negative consequences Value-rational meaning – based on the value of the action itself, out of the conviction of ethical, aesthetic, religious or other characteristics, and without considering possible negative consequences Affective (or emotional) meaning – without considering values or possible negative consequences Traditional meaning – based on identifying oneself in custom or practice where the individual in action is not even conscious about the goal in action
Efficiency in Mediation
Is mediation efficient? The answer depends upon whom you ask, and which perspective is employed. Is efficiency understood in the same way by those financing the mediation (for example, legal aid entities), by administrative entities (for example, government entities), by the parties to the conflict, and by the mediators? Do the parties to mediation really know what mediation is about? Do they know that mediation is conducted in ways that can be experienced as very different from more mainstream methods (like lawsuits)? Do the judges, legal aid entities, governmental entities and legislators know this, too? Empirical studies from a number of countries suggest that this is not the case.
Goal Perspective
From the goal perspective, an organisation or a process is successful if it meets defined goals within the right amount of time and within the right price.
Process Perspective
In the process perspective, a process is efficient if it runs smoothly. Dead ends, interruptions, tension or an overtly open expression of conflict are all regarded as symptoms of inefficiency.
System Perspective
In the system perspective – not to be mixed up with systemic theory – processes are regarded as systems changing input to output. The focus is on functions and data, and the global focus is on what a system can produce. The system is a steering means, and the user is less important.
Interest Perspective
In the interest perspective, it is not fruitful to talk about efficiency as an absolute phenomenon. Rather than talking about creating more ways for efficiency, the process is surrounded by numerous interest groups that evaluate the process and its outcome using a variety of criteria.
Symbol Perspective
According to the symbol perspective, a mediation process is efficient if it manages to appear as effective in the view of the mediator, the parties and other remote players such as the media and decision makers, among others.
Paradox Perspective
When mediation is simultaneously regarded from more than one of the perspectives mentioned above, paradoxes arise. In such a paradox perspective, it becomes a task to evaluate whether crossing pressure from different perspectives and the paradoxes themselves lead to a constructive development.
Online Dispute Resolution – (ODR)
Mediation can happen over distance, making it unnecessary to have all of the participants present in the same room. Exchange of letters and audio or video recordings via the internet, telephone conversations, teleconferencing and videoconferencing are all examples of how this can be done.
What Is ODR?
In professional mediation terminology, ODR is something different than mediation via videoconference or telephone mediation. It is an individualised, computer-based process in which the communication is conducted via the written word.
ODR vs. Micro- and Macro perspective
In ODR it is very difficult to repair damages from hampering microdynamics and speech acts.
Pre-Conditions for Existing ODR
The ODR services currently provided are rooted in the settlement-driven mediation style.
Dilemmas with Existing ODR
The digitalised ODR process currently happens via separate communication between the mediator and the individual parties, compared to private meetings in caucus. All participants in the mediation are not online at the same time. The existing ODR design contains a significant risk that the intervening third person (the mediator) takes control over the process, which is not consistent with the pre-condition that the parties should be offered autonomy.
Possible ODR Software
Both of the parties knew their individual status within the generic style, and the computer software was designed in accordance with the generic style. The parties were in the same room, but did not speak to one another. All communication was carried out via the conflict resolution software on a stand-alone computer, which the parties took turns using. The computer was the parties’ mediator, and no other individuals besides the parties were involved. For most of the students who participated in the software testing, the experiment was a success.
Exercise
Try to answer the questions below
Please give five examples of microknowledge. Please give five examples of microskills. Please give five examples of microdynamics. To what extent is microdynamics promoting or hampering? Describe the behaviour of a party that appears to have been psychiatrically diagnosed. How does a mediator relate to a party demonstrating neurotic behaviour? How does a mediator relate to a party demonstrating narcissistic behaviour? How does a mediator relate to a party demonstrating borderline behaviour? How does a mediator deal with a party crying or expressing emotion out of grief? What does the mediator do if a party becomes angry or frustrated at the mediator because of the way he is running the mediation? Please give an example of an exchange using the auditory channel. Please give an example of an exchange using the visual channel. Please give an example of an exchange using the tactile channel. Please give an example of an exchange using the kinaesthetic channel. How can metaphors be used during mediation? How can you analyse a transcript to see to what extent a mediator stimulates empowerment or recognition? By analysis, to what extent can you see who has influence at different times in the dialogue?
Model ADR Contract Clauses
See a sample in the back of the book.

Book's Website Day 7

Microdynamics

The first microdynamic that the mediator employed was his way of bidding the parties welcome. He started with small talk to reduce any tensions surrounding the unknown and encountering the opponent, followed by handing over the mediation room and facilities to the parties for use as they saw fit. Then, he also handed over the responsibility of finding a resolution for the conflict to the parties, thus activating a microdynamic leading to empowerment.

Analysis of Empowerment, Recognition and Influence

The dynamics of the process is very dependent of the level of empowerment and recognition. The participants in mediation have different power at different point of the process. The section provides the reader with tools to analyse the level of empowerment and recognition and tools to explore who at the moment have most power.

Roles, Power and Discourse Analysis

A transcript of the Jacob and Awwad dispute is analysed.

Discourse Analysis

Discourse analysis can surface who has power and surface a speakers intentions. Exchanges follow certain natural laws which are very useful for the mediator to know about.

Narrative Mediation

A transcript of the Marlene and Dennis dispute is analysed.

Cognitive-systemic Mediation

A transcript of the Vicky, Janice and Henri dispute is analysed.

Conflict Theory

Like teaching psycho education to people needing insight in the interconnection between psychological strain and bodily pain, education in the emerge, the dynamics and the consequences of conflict may improve people’s awareness on the nature of conflict and how to deal with, how to live with and how to get past conflict.

The Relation

Conflicts are experienced differently depending on the parties’ relation to one another. In law, this relation is subdivided in conflicts with inside and outside contracts. When law uses the contract term, it is because the law in relation to private parties operates in regards to rights and obligations. For parties without any contractual relation, this is not sufficient coverage. Parties to a conflict have occasionally had a relation of trust on which the original relation was built. Western marriages are essentially built in that way – a relation of trust. The parties who are now in conflict may have also been put in relation to one another. Examples of this could be children in relation to parents, and parties in conflict with one another due to the forced removal of children.

The Conflict Ladder

Depending on their relation, the parties to conflict encounter one another on the steps of the so-called conflict ladder, a metaphor for the development of conflict. Diana and John Lampden, Londonderry, Northern Ireland, began to study how conflicts and disagreements influence the parties and their community. It soon became clear to them that the escalation of conflict was connected to certain dynamics, and their work showed that these dynamics could have a promoting as well as a hampering effect in the escalation of conflicts. The Lampdens described conflicts, which began as a disagreement, could escalate to the point of serious harm

Reciprocal Conflict Ladder

Diana and John Lampden became aware of the fact that the above-mentioned dynamics at each step could be reversed to its reciprocal circumstance with the application of other dynamics. By tuning into the escalating dynamics, they saw that this could be reversed to détente (relaxation of tension) – that is, one could climb up the conflict ladder, but one could also certainly climb down as well.

Matching Styles

If we turn our focus toward the mainstreams of mediation presented earlier, we can see that each of them is designed to deal with escalating dynamics at the different steps on the conflict ladder.

Structural Conflicts

A conflict may arise because two insurance brokers were instructed to sell insurance policies on a commission basis in overlapping market areas. A conflict may arise as a result of the administration’s decision that a child should no longer live with his biological family but rather with a foster family. We refer to this as being a structural conflict.

Intrapersonal Conflict

Individuals who, under normal conditions, manage to maintain a relatively even balance between fulfilment of their own needs and duty, may become imbalanced when under great duress so that either duties’ (superego) pole or fulfilment’s (id) pole is favoured, observable without a psychiatrist’s diagnosis. These situations are generally referred to as intrapersonal conflict.

Conflict Style

Occasionally a party to mediation is very assertive but has little capability for empathy, and sometimes a party has great capability for empathy but very little for assertion. Assertion and empathy share a connection to the poles mentioned above in regard to self-realisation or steering by a strong sense of duty. If both parties to a conflict are assertive but lack empathy skills, you will find much confrontation in the parties’ conflict. If the parties are very empathic but very hesitant or unskilled in assertion, the parties lacking the ability to solve problems reap the fruit of their own habit by avoiding confrontation with the problem at hand.

Subjective Meaning

Goal-rational meaning – based on a choice of goals out of a clearly defined value horizon and on a choice of means, also including possible negative consequences

Value-rational meaning – based on the value of the action itself, out of the conviction of ethical, aesthetic, religious or other characteristics, and without considering possible negative consequences

Affective (or emotional) meaning – without considering values or possible negative consequences

Traditional meaning – based on identifying oneself in custom or practice where the individual in action is not even conscious about the goal in action

Efficiency in Mediation

Is mediation efficient? The answer depends upon whom you ask, and which perspective is employed. Is efficiency understood in the same way by those financing the mediation (for example, legal aid entities), by administrative entities (for example, government entities), by the parties to the conflict, and by the mediators? Do the parties to mediation really know what mediation is about? Do they know that mediation is conducted in ways that can be experienced as very different from more mainstream methods (like lawsuits)? Do the judges, legal aid entities, governmental entities and legislators know this, too? Empirical studies from a number of countries suggest that this is not the case.

Goal Perspective

From the goal perspective, an organisation or a process is successful if it meets defined goals within the right amount of time and within the right price.

Process Perspective

In the process perspective, a process is efficient if it runs smoothly. Dead ends, interruptions, tension or an overtly open expression of conflict are all regarded as symptoms of inefficiency.

System Perspective

In the system perspective – not to be mixed up with systemic theory – processes are regarded as systems changing input to output. The focus is on functions and data, and the global focus is on what a system can produce. The system is a steering means, and the user is less important.

Interest Perspective

In the interest perspective, it is not fruitful to talk about efficiency as an absolute phenomenon. Rather than talking about creating more ways for efficiency, the process is surrounded by numerous interest groups that evaluate the process and its outcome using a variety of criteria.

Symbol Perspective

In the process perspective, a process is efficient if it runs smoothly. Dead ends, interruptions, tension or an overtly open expression of conflict are all regarded as symptoms of inefficiency.

Paradox Perspective

When mediation is simultaneously regarded from more than one of the perspectives mentioned above, paradoxes arise. In such a paradox perspective, it becomes a task to evaluate whether crossing pressure from different perspectives and the paradoxes themselves lead to a constructive development.

Online Dispute Resolution – (ODR)

Mediation can happen over distance, making it unnecessary to have all of the participants present in the same room. Exchange of letters and audio or video recordings via the internet, telephone conversations, teleconferencing and videoconferencing are all examples of how this can be done.

What Is ODR?

In professional mediation terminology, ODR is something different than mediation via videoconference or telephone mediation. It is an individualised, computer-based process in which the communication is conducted via the written word.

ODR vs. Micro- and Macro perspective

In ODR it is very difficult to repair damages from hampering microdynamics and speech acts.

Pre-Conditions for Existing ODR

The ODR services currently provided are rooted in the settlement-driven mediation style.

Dilemmas with Existing ODR

The digitalised ODR process currently happens via separate communication between the mediator and the individual parties, compared to private meetings in caucus. All participants in the mediation are not online at the same time. The existing ODR design contains a significant risk that the intervening third person (the mediator) takes control over the process, which is not consistent with the pre-condition that the parties should be offered autonomy.

Possible ODR Software

Both of the parties knew their individual status within the generic style, and the computer software was designed in accordance with the generic style. The parties were in the same room, but did not speak to one another. All communication was carried out via the conflict resolution software on a stand-alone computer, which the parties took turns using. The computer was the parties’ mediator, and no other individuals besides the parties were involved. For most of the students who participated in the software testing, the experiment was a success.

Exercise

Try to answer the questions below

Please give five examples of microknowledge.
Please give five examples of microskills.
Please give five examples of microdynamics.
To what extent is microdynamics promoting or hampering?
Describe the behaviour of a party that appears to have been psychiatrically diagnosed.
How does a mediator relate to a party demonstrating neurotic behaviour?
How does a mediator relate to a party demonstrating narcissistic behaviour?
How does a mediator relate to a party demonstrating borderline behaviour?
How does a mediator deal with a party crying or expressing emotion out of grief?
What does the mediator do if a party becomes angry or frustrated at the mediator because of the way he is running the mediation?
Please give an example of an exchange using the auditory channel.
Please give an example of an exchange using the visual channel.
Please give an example of an exchange using the tactile channel.
Please give an example of an exchange using the kinaesthetic channel.
How can metaphors be used during mediation?
How can you analyse a transcript to see to what extent a mediator stimulates empowerment or recognition?
By analysis, to what extent can you see who has influence at different times in the dialogue?

Model ADR Contract Clauses

See a sample in the back of the book.