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Mediation and Mediator Skills: A Critical Appraisal
Kazi Abdur Rahman*
Abstract
The realm of mediation has expanded dramatically. Since then, mediation has
evolved from an alternative approach to conflict resolution for community
activists to a process that has become part of our everyday landscape.
Mediation-Skills and Techniques is an essential and comprehensive addition to
the professional library of all mediators. The paper adopts an interdisciplinary
approach to mediation, integrating knowledge and expertise from law,
psychology, and sociology. It provides a time-tested, flexible model for effective
mediation in diverse environments and situations. It also provides mediators
and other professionals who use mediation such as lawyers, therapists, and
personnel managers with comprehensive, step-by-step instruction in effective
dispute resolution strategies and a clear overview of mediation and conflict,
mediation process, the skills and approaches used by professional mediators.
Keywords: Alternative dispute resolution, Behaviors mediation, Community initiative,
Impartiality, Mediator skills, Mediator duties, Neutrality.
Introduction
A fair and efficient process for resolving dispute is crucial in any civilized society for
the purpose of securing and defending rights of its citizens. As it is written that the “Court
brings dispute to an end and ensures that people can enforce their rights. But in most parts of
the world, ever mounting expenses of litigation, congested court schedule, delay in disposal
of cases have put question on the efficiency of the system.”
i
This has been reflected in judgment of the Supreme Court of India, where the court
observes that, "interminable, time-consuming, complex and expensive court procedures
impelled jurist to search for an alternative forum, less formal, more effective and speedy for
resolution of disputes avoiding procedural claptrap and this led them to…".
ii
In fact, the philosophical basis of alternative forum that means alternative dispute
resolution (ADR) is drawn from Confucianism. “The philosophy of Confucianism was, in
essence, one of harmony, of peace and compromise resulting in a win-win combination.”
iii
The time demands that our legal system should be developed to ensure greater social
justice in the context of modern social science. Alternative dispute resolution (ADR) is a
promising road toward improvement as it combines both old and new dispute resolution
processes. Amidst the ancient traditions (notably aboriginal) of a surprisingly large number
of cultures, there is a way of thinking about conflict and dispute that has been recaptured in
the modern age.
*Lecturer, Faculty of Law, ASA University Bangladesh(ASAUB), Dhaka, Bangladesh.
Dispute Resolution Option
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Dispute is a dynamic process. Dispute means a fact when it is alleged by one party
and denied by other and both with some show of reasons. It has a beginning and has to pass
through several stages before it ends. Conflict or dispute is a natural and inevitable part of all
human social relationships. Conflict occurs at all levels of society- from interpersonal,
family, tribes to national and international levels. The existence of conflict and dispute
presupposes the existence of dispute resolution process too. Generally, dispute resolution can
initiate in two ways such as:
(i) By peaceful means
(ii) By use of force.
The first implies using alternative ways such as dialogue, negotiation, mediation or third
party intervention instead of using force or aggressive measures to resolve a dispute. The
second implies that a powerful third party uses force, not necessarily physical force, but
aggressive persuasion to create social or structural pressure and influence on the parties to
resolve existing disputes. The third party might have some interest, but not on the dispute
itself. The third party works as a pressure factor and may or may not be neutral. However, it
is not uncommon for disputes resolved in this way to re-emerge in the future. In general,
traditional dispute resolution mechanism implies the existing process of resolving dispute in
our society. There are two diverse processes of dispute resolution.
iv
(i) Legal process
(ii) Community initiative.
Legal Process
Legal process means that litigation takes places in the court of law. As it was said,
“Usually it refers to taking resort to legal authority to obtain a favourable verdict but this system also
gives them a feeling of victory over the other. It is a win-lose game.”
v
This process is very time consuming and a lengthy one to follow and it requires a lot
of money and often holds disputes, leaves permanent scars on the mind of the losing party
rather than resolving the problem. It may end in making the disputes endemic and long
lasting. This procedure is very complex and cumbersome. It was held that “Legal process is a
win-lose situation and sometimes stimulates further conflict. When the losing party gets chance, they
look for revenge. Lastly it has to depend on the lawyers from beginning to end of the system.”
vi
Community initiative
The community sometimes takes a leading role in resolving local disputes. In
Bangladesh, these are popularly known as Shalish and Mimangsha. These are usually
undertaken through mediation, negotiation, and reconciliation.
Mediation
Now-a-days mediation is the most grooming process applied all over the world. This
may be defined as a process by which disputing parties voluntarily engage the assistance of a
neutral mediator, who has no authority to make all decisions for them, but who uses certain
skills to help them to resolve their dispute by negotiating agreement without adjudication.
Mediation serves various purposes, including providing the opportunity for parties to define
and clarify issues, understand different perspectives, indentifying interests, explore and
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assess possible solution, and reach mutually satisfactory agreement, when desired. This
exposition can be seen in the following quotation such as,
a) “‘Mediation’ under this section shall mean flexible, informal,
non-binding, confidential, non-adversarial and consensual
dispute resolution process in which the mediator shall facilitate
compromise of disputes in the suit between the parties without
directing or dictating the terms of such compromise.”
vii
b) “Mediation is a voluntary process where a natural mediator
attempts to help the disputing parties to reach an agreement that
is acceptable to both the sides and that will bring the dispute to
an early conclusion without having to go to court.”
viii
c) According to Sally E. Merry and Susan S. Silbey, “It
[Mediation] is a process of settling conflict in which a third
party oversees the negotiation between two parties but does not
impose an agreement.”
ix
Modes of Mediation
Mediation may be divided into two broad categories such as,
x
i) Interest Based
mediation ii) Right Based mediation.
Modes of Mediation by Stephen R. Marsh
xi
Mediation Road Map
Understanding
The mediator empowers the individual parties to take responsibility for
understanding their conflict and resolving the dispute. The mediators enters the parties'
ongoing relationship with the intent of altering the interpersonal dynamics of conflict
relationship by helping them use effective communication skills in order to help facilitate the
resolution of the dispute. Mediator outlines the issues important to all parties/ advocate, using
neutral words and discuss specific issues one by one in more detail, if necessary. Basically
mediator helps the conflicting parties to have an interactive discussion, when appropriate.
Negotiation
For an effective mediation on behalf of clients whose needs and goals can carefully
be learned through client-centered interview and negotiation. Negotiation is an action stage
for representation of a client and in this stage the mediator takes an active part. He/she must
avoid the attorney-clients attitude. The negotiator has to act simultaneously as a detached
representative of a principal and personally involved as participant. Clients may be sensitive
Directive
Mediation
Facilitative
Mediation
Transformative
Mediation
Pure Process
Mediation
Evaluative
Mediation
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about his/her past events or a particular goal and worry that the lawyer will find the disclosed
matter inappropriate or damaging to the case. Such feelings motivate the clients to be
selective in revealing facts and cautious about articulating real needs. The negotiator may use
many of the analytical, verbal, and interpersonal skills in negotiation, active listening and
report building process. The basic principle of other skills, such as sequencing of topic and
planning, can be used in negotiation. Here a mediator is to lead parties’ negotiations when
parties are ready, preferably after reaching a new understanding. Mediator is to assist parties
to explore option for settling each issue.
Agreement
Once a settlement is reached through meditation the mediator brings the parties
together to confirm all the terms of compromise. An important issue concerning the matter is
how the settlement terms should be recorded. Fundamental principle of this process is not to
blame any one or not to pronounce any one innocent or guilty; but to write a win/win
agreement that is positive with respect to each party’s rights and responsibilities regarding
future conduct.
There are five basic elements of an agreement to be considered. Those are- i) Who
are the parties? ii) What are the conditions to be agreed upon to maintain a balance? iii)
Where should the exchange take place? iv) When (exact date and time)? v) In what form?
Fundamental Principle of Mediation Practice
xii
There are several fundamental principles. Some of these are as follows:
Self-Determination
The mediator respects the “self-determination”
xiii
of all the participants. He/she
conducts a process where party self-determination is paramount. The mediator may provide
information about the process, raise issues and help the parties explore options. The primary
role of the mediator is to facilitate a voluntary resolution of a dispute. The principle mediator
must assist the artists and the participants to engage in self-determined process.
Integrity
The mediator is to act with integrity with respect to all aspects of the mediation
process and towards all users of the process. The word integrity includes impartiality,
competence, confidentiality, transparency, fairness, voluntariness, continuing duty to reveal,
continuing duty to discuss, disclosers, and durable result. If at any time the mediator is
unable to conduct the process in an impartial manner, the mediator is obligated to withdraw.
Protecting Negotiation Relationship & Options to the Maximum Extent Possible
The mediator manages the process to protect the negotiating relationships of all who
participate and their unfettered opportunity to fully explore negotiation options. In a word,
protect relationships and negotiation options.
Doing No Harm or Doing the Least Harm When Harm Cannot be Avoided
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The mediator is to be constantly vigilant and aware that his or her own behavior may
not be harmful to the participants and/or to the process. The mediator will cause no harm or
will cause the least possible harm when he is faced with two conflicting principles or ethical
standards. A mediator should have the belief to conduct himself or herself in a manner that
he/she will cause the least possible harm.He has to act impartially, to provide a balanced
process, and give all real opportunity to get information.
Advancing the Profession at All Time
The mediator is to be consistently cautious and aware of his or her own behavior;
and it could impact the profession of mediation, and acts to promote the field and
himself/herself as a representative of the profession in a positive way. He is to act ethically
and with integrity and should follow the above essential principles of practice, provide pro
bono service when needed intention to learning.
Steps of Mediation
There are several steps of mediation such as:
Step One: Communication to Create Learning
The mediator should deliver a welcome speech before the disputants and thank them
for being present in such a session and introduce the disputants to each other and ask them
about the names by which they prefer themselves to be called. He/she is to brief them about
his role and strategies through an inaugural speech. He has to explain his impartial stance as
a mediator before the disputants. After that he has to describe about logistics support and
comfort such as, length of time available for mediation, directions to restroom, tea, water etc.
The most important thing is that he/she will provide a brief preview of the process of
mediation to the disputants. He needs to clarify to them that he/she is not a judge and cannot
determine the fact. He/she has no power to decide who is right or who is wrong, who is guilty
or who is innocent. Finally he/she has to explain the process of ground rules and obtain
agreements to use them. Ground rules give the parties an idea of what to expect. Some
sample ground rules are as follows:
Everyone will have an opportunity to speak.
One person is allowed to talk at a time. No one should be interrupted while talking.
Everyone should respect each other.
The participants should switch off their cell phones and beepers.
Step Two: Helping the Parties to Tell Their Stories
The mediator can help the parties to disclose their history by being empathetic and
attentive. He/she will acknowledge what is shared, ask questions which demonstrate his/her
interest and attention, paraphrase or summarize what he/she hears. Objective of the second
step is to develop an atmosphere of trust and confidence between the parties. It helps the
parties tell and listen to the facts from each other’s perspective. It also helps them explain
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and clarify their own perceptions, communicate and work together and also identify the
interests of the parties.
Step Three: Learning to Create New Understanding
When the party learns about how the other sees the situation, each party begins to
have a new understanding of the situation. This means that each party must let go of some of
his/her past thoughts and might require a part to begin to forgive (depend on the conflict).
Step Four: New Understanding to Create New Motivation
The new understanding is created to change the parties’ motivation as to what they
are willing to do to about needs and interests of the parties. This step simply helps the parties
understand each other’s perspective; not necessarily to agree. The parties should speak to
each other rather than to the mediator; and encourage the parties to ask clarifying question to
each other, particularly about intention, impact, and interest. It is to simply encourage the
parties to tell each other what they heard, and to check for understanding. Reflective listening
is a very useful technique in this phase. At this stage the mediator is to ask the parties what
they think their major problems or issues are, and whether they want those to be solved. If
they are not sure, then the mediator will suggest issues.
Step Five: New Motivation to Create the Ability of Parties to Negotiate at a New Level
The Parties begin to relate to the needs and wants of the parties causing the parties to
be able to do more and/or other things to meet the needs and wants of the other parties. We
now have parties who are willing to change some/all.
Step Six: Ability to Negotiate at a New Level to Create Agreements
Using these stages the disputant is to establish an agreement for future conduct and
use the interest based process to brainstorm, evaluate and choose ideas about how to improve
the relationship. Here the mediator’s task is to create an environment in which the disputants
can invent and evaluate possible solutions. Before arriving at the solution, the mediator
should invite the parties to evaluate the options from the observer’s perspective. After the
parties have brainstormed options, they can reduce the list to the most viable options. The
process is successful if they understand each option better and identifies which options are
most beneficial. The goal is to stimulate dialogue and creativity and to make sure that all
options and interests have been thoroughly explored and the agreement reflects what the
parties desire, need and want.
Duties of the Mediator
The mediator should be a neutral person whose conducts must be like an unbiased
third party. He/she acts as a facilitator in the mediation. “The mediator’s role,
responsibilities, duty and the mediation process may vary significantly, depending on the
types of disputes and mediator’s approach because of the extensive variety of different ways
in which the mediation process can take place.”
xiv
The mediation process will depend on the
mediator. But the mediation is a process that does not necessarily require subject matter
expertise. No particular advanced academic degree or technical or professional experience is
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Mediation and Mediator Skills: A Critical Appraisal
a prerequisite for competence as a mediator. Core mediation skills include communication
clearly, listening effectively, facilitate communication among all participants, promoting
exploration of mutually acceptable settlement options and conducting oneself in a neutral
manner. They come from all walks of life. Mediators are professors, sociologists, lawyers,
teachers, real estate brokers, labor managers, labor negotiator therapists and psychologists- to
name a few. Each of these professions can provide the mediator skill to facilitate parties’
communication;
xv
Such as:
1. Diligence: A mediator must make reasonable efforts to advance the mediation in
time.
2. Procedural Fairness: A mediator must conduct the mediation proceedings in a
procedurally fair manner.
3. Explanation of process: Before the outset of the mediation the mediator must provide
all participants with general explanation of the nature of mediation process,
procedures and role of mediator, parties and other participants.
4. Truthfulness: A mediator must be truthful and accurate in marketing his or her
mediation service.
5. Compliance with law: A mediator must comply with any applicable requirements
concerning compensation established by statute or the court.
6. Disclosure of and compliance with compensation term: Before commencing the
mediation, the mediator must disclose to the parties in written form fees, costs or
charges to be paid to the mediator by the parties.
7. Contingent fees: The amount or nature of mediator’s fees must not be made
contingent on the outcome of the mediation.
8. Gifts and favor: A mediator must not at any time solicit or accept from or give to any
participant or affiliate of a participant any gift, bequest or favor that might
reasonably raise a question concerning the mediator’s impartiality.
9. Mediator needs to be responsive to the parties: Let them know that he wants to help
them resolve their conflict.
Effective Behaviours of Mediator
A mediator generally wants clients to be present and participate. This means he
keeps the parties focused and encourages them to participate directly. The mediator takes
back seat during the conversation between the participants. A successful mediator uses
variety of techniques of communication. He/she must understand the feelings and emotions
involved in the interpersonal dynamics of the parties. At last, the mediator must be well
conversant to manage the process.
Ethical Standards of a Mediator
Whatever the positive impact of mediation is but all of it would depend on the ethical
or moral standard or behavior of the mediator's concern for doing so. A mediator is
essentially required to abide by the following norms such as:
1. Neutrality and Impartiality
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A mediator shall avoid conduct that gives the appearance of partiality towards one of
the parties. The quality of mediation process is enhanced when the parties have
confidence in the impartiality of the mediator.
2. Party Self-Determination Voluntary & Uncoerced
A mediator shall conduct a mediation based on the principle of party self-
determination. Self-determination is the act of coming to voluntary, uncoerced decision
in which each party makes free and informed choice as to process and outcome. That
means i) agreement must be voluntary ii) each participant has right to decide own
participation and iii) refrain from coercion.
3. Duty to Disclose Actual & Perceived Conflict of Interest
A mediator shall avoid a conflict of interest or the appearance of a conflict of interest
during and after mediation and shall disclose all actual and potential conflict reasonably
known and could reasonably be seen as raising a question about impartiality. After
disclosure, if all parties agree, the mediator may proceed with the mediation. Mediator
discloses all personal, professional and financial relationships.
4. Confidentiality
A mediator shall maintain confidentiality of all information, unless otherwise agreed
to or required by applicable law. A mediator should not communicate about how the
parties acted in the mediation.
5. Competence
A mediator shall mediate only when the mediator has the necessary qualification to
satisfy the reasonable expectation of the parties.
Expectations are:
Truthful background representations
Inform the court of public discipline felony charge
Criminal conviction
Ability to use mediation process and skills
No impediment to mediate effectively
Maintain skills
A mediator shall conduct mediation in accordance with these standards in a manner
that promotes diligence, timeliness, safety, presence of the appropriate participant, procedural
fairness, party competence and mutual respect among all parties.
Recommendations for Mediators
It has been stated earlier that mediation is the most popular method of alternative dispute
resolution and it is an established fact that for ensuring a meaningful result of mediation, the
mediator should follow some strategies. Such as, he should not talk too much, must not
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interrupt the speaker and act a bit uncertain to encourage further disclosure. The mediator
will make them think about the past when they had a good relationship and induce them to
talk positively about each other. The mediator should be aware that there are two parts of
every answer/message- the content (legal part) and the feeling (effective part). He/she
should not ignore the feelings. The mediator should keep in mind some important things.
These are:
- The mediator should not ignore the feelings as ignoring the feelings can prevent
dispute from being resolved. It may be the biggest issue in mediation.
- If the mediator gets negative reaction to questions regarding feeling, he can ask
questions regarding thinking.
- He/she should learn to feel comfortable with strong emotions. In fact, it has been
suggested that an important part of becoming a mediator is to become sensitized to
the feelings of others as well as self.
- He/she has to clarify the situation.
- The mediator needs to help parties to understand their own interest & risk.
- He/she should explore all possibilities to conform a satisfactory agreement.
Finally, it is recommended that the mediator should not make a judgment as to the
truth or veracity of anything the parties say. He or she must listen objectively without
presupposing who is telling the truth. The mediator must take notes and make balanced
eye contact throughout the session. He has to organize information after taking it down.
He/she should be patient and avoid getting ahead of parties and also provide a safe
environment for the participants. He/she should ascertain the needs and interests of the
participants and motivate the participants' behaviour accordingly. He/she requires
developing his/her personal style.
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References
1Mahbub, SK. Golam. Alternative Dispute Resolution (ADR) in Commercial Dispute: The UK and
Bangladesh Perspectives. 1st edition. Dhaka, 2005, p. 29.
2Guru Nanak Foundation v. M/s Rattan Singh & Sons, AIR 1981 SC 2075, 2076-2077.
3Rahman, Dr. Mizanur. "Alternative Dispute Resolution."Human Rights Summer School Manual.
2007, p. 148.
4Study Circle Discussion Guide on Alternative Dispute Resolution (ADR). Study Circle, August, 2003.
5Halim, Md. Abdul. ADR in Bangladesh: Issues and Challenges. 1st edition. Dhaka: CCB Foundation,
February 2010, p. 19.
6Ibid.20.
7Bangladesh. The Code of Civil Procedure 1908. Explanation-(1) U/S-89A.
8Hazel, Genn. Mediation in Action: Resolving Court Disputes without Trial. 1st edition. London:
Calouste Gullbenkain Foundation, 1999, p. 15.
9Crrie, Menkel-Meadow (Ed). Mediation. London: Aldershot, 2001, P.183.
10Akhtaruzzaman, Md. Alternative Dispute Resolution Concept and Law and Legal Aid Law. 2nd
edition. Dhaka: Razia Khatun, 2008, p 25.
11Marsh, Stephen, R. Models of Mediation. http:/adrr.com/adr4/mediation.htm.
12Model Standards of Conduct for Mediators American Arbitration Association Adopted September 8,
2005.
13According to Oxford Dictionary the word self-determination means the right of a country or region
and its people to be independent and choose their own government and political system. Oxford
Advanced Learner’s Dictionary. 8th edition. Oxford University Press, 2010, p .1387.
14Gabriel Hallevy. Is ADR Philosophy Relevant to Criminal Justice Plea Bargaining as mediation
Process between the Accused and the Prosecution. Available at
http:ssrn.com/abstract=1315984. Also see, Leonard Riskin, Understanding Mediators
Orientations Strategies and Techniques: A Grid for Perplexed, 1 Harv. Negot. L. Rev. 7 (1996).
15Culbert, B. Mary, What's a Lawyer to Do– in Mediation.
