[lux 5LH 13.? Establishing a Positive Emotional Climate ne of the most important jobs of the mediator is to create an emotional climate that is conducive to clear communication and joint problem-solving. Mediators use a variety of techniques to promote a positive emotional climate. Their positive approach to problemsolving should encourage the parties to believe that they can solve this problem and remain in control of the outcome. Mediators maintain this positive approach throughout the mediation, creating an environment in which the parties can negotiate e'ectively. For example, mediators prevent interruptions or verbal attacks, calm threatening behavior (the \"1:11 sue you\" variety, not the \"I'll kill you"= kind, which they report {see ethics discussion, chapter twelve: and generally create a safe environment for discussion. They also encourage the parties to focus on the future instead of the past= asking what each party needs to put this problem behind him and move forward. This future focus for mediation often helps the parties tremendously. Once theyr Alternatives to Litigation, Mediation, Arbitration, a... in joint sessions; Generates potential alternatives; Begins to generate proposals for settlement; Allows parties to step back and consider negotiations without the pressure of the other party=s presence; and Allows reality testing on positions taken, actual needs, possible outcomes in litigation= and consequences of dragging out procedure or of hurrying settlement. Near End of Negotiations Discusses settlement proposals based on information and issues known only to party and mediator; Develops settlement options; Discusses methods for implementation of proposed settlement; Breaks deadlocks; and Discusses and overcomes psychological pressures against settlement. . 13.122 How Caucusing Works Before the mediation= the mediator will locate a place to caucus. It may be that the meeting facility has two conference rooms available so that each party has its own room after the joint session. Or there may be only one room available. If there is just one= the mediator generally will escort the noncaucusing party to a waiting room and return to the mediation room to caucus with the other. As the mediator determines that the joint session is drawing to a close, he will decide with whom to caucus first. Early in negotiations it usually is the initiator of the lawsuit or mediation. New mediators often want to caucus with the defendant or accused party rst= to get straight to the business of finding solutions. They must keep in mind that one joint session almost undoubtedly has not produced enough information and understanding to allow the mediator to skip the trust building, interest searching, and commonalities recognition that often happens when the parties have the mediator to themselves. Aer several caucuses and joint sessions= the mediator might return to caucus with the most inexible party first or the one whose III 6) 949 5 I 327 natives to Litigation, Mediation, Arbitration, a... emotions might become intrusive in the negotiations. Because even the perception of fairness is essential, the mediator will be sure to caucus with all parties. The mediator will be supportive of each party in caucus without taking sides. He will spend much of the early caucus(es) asking openended questions to understand each party's interests and needs. When a party insists in a caucus that it must have full compensation plus attorneys' fees, for example, the mediator will ask the party what it means to him to be fully compensated (searching for interests and not just dollar gures) and what are the most important pieces of that formula. If the party talks about creditors threatening to foreclose for failure to pay hospital bills, the mediator will understand that a timely resolution is a key interest of the party. If, on the other hand, a party repeatedly remarks that he won't settle unless the other party apologizes, the mediator will understand not that an apology must be part of the solution (that would be a position, not an interest), but that the party needs someone to understand and aclmowledge him and his difficulties. Once that party feels truly heard, it is often amazing how quickly the rest of the resolution follows. . [IQEEE After the mediator has built trust with the parties and gathered information about what truly matters to the parties, he might need to do some reality testinghelping the parties start to see the matter from a different perspective. Reality testing can be tricky because the mediator has to push and prod, asking difficult questions designed to get parties off their positions, while not even being perceived as taking the other party=s side. Reality testing is discussed in more detail in the next section. Finally, the mediator will help the parties devise options and make proposals to start the resolution negotiations. Making o'ers and counteroffers usually takes several discussions. These often take place in a series of caucuses, although some mediators prefer to have the parties make 0 \"ers in joint session, especially if the parties need to rekindle the positive relationship they enjoyed before the dispute. Simple disputes may be resolved after just a couple of negotiation caucuses, while highly complex mediations may involve hours, days, weeks, or even longer spent in a series ofcaucuses. At the end of each caucus, the mediator should clarify which information the party wishes to keep confidential. If sharing some information might lead to a more acceptable solution, the 95 I 32? Alternatives to Litigation, Mediation, Arbitration, a... recognize that mediation is not the place to figure out who is liable for what, they can stop arguing about who did what to whom and focus on how to get back to work, to being able to sleep at night, or to having something to talk about other than this dispute. A good mediator will also help the parties see that the}r are here to solve a problem, not to vent on their animosity at each other. Through reframing, the mediator will translate judgmental or accusatory language into less emotionally charged terms. 7.3.8 Setting the Agenda After the parties have concluded their opening statements, a wise mediator will make certain that she understands the primary issue s. She should state her own understanding of the is sues that the parties wish to discuss, placing them in an orderly agenda. Usually, the mediator should put issues on which the parties have little or no disagreement rst. Finding common ground and reaching agreement, even on small matters, sets a good psychological tone for the more difficult items that lie ahead. 7.3.9 Joint Problem-Solving :lqesiE While part of the mediator's job is simply to keep the process moving smoothly, the mediator must also help the parties solve their problem. Here, of course, is the greatest challenge. And this is where mediation becomes an art aided by the application of a varietyr of skills. Communication skills, as discussed in detail in chapter four, are absolutely essential. Getting the parties to agree on the when, where, and how much is part of the art of mediation. Helping parties balance power is sues, set priorities, find common interests, and negotiate effectively is all part of joint problemsolving. The key to joint problemsolving in mediation is for the mediator to help the parties see that they depend on each other to solve the problem. Neither party can resolve the problem by getting everything it wants, because the other party would never agree to that. So each party must gure out how to help the opposing part3,r get what she wants and needs to resolve the dispute so that he gets some of what he wants. A good solution for one depends on nding a good solution for the other. 7.3.10 Finding Common interests For parties to accept their role in joint problemsolving= the},r must see ho\"r much they have in comnnon and how they will Alternatives to Litigation, Mediation, Arbitration, a.. A ? ... My Books have to help each other overcome their differences to resolve the these common interests. The mediator might start by discussing dispute. Common interests form the basis for one party to interests, helping the parties understand which interests they understand the other party, which can then lead to an effort to have in common. For example, divorcing parents generally share reach a mutually acceptable agreement. Each party has his own the interest of finding a visitation schedule that works best for interests, and the mediator must help the other party see that the children. Understanding how much they have in common those interests are valid and must be considered throughout the often helps parties realize that a mutually acceptable solution process. Often interests will not coincide and may even be really is possible. To help find common interests, mediators: contradictory, but the parties still have a common interest in o Use active listening skills as the parties discuss their finding a resolution or in making sure the solution is better than views of the conflict; the outcome they could achieve in court. For example, parties can disagree all day long on whether the stop light was red or o Reframe statements to keep the parties discussing interests green or yellow when they went through it, but they usually rather than positions; agree that the small child who was hurt in the accident deserves o Ask the parties directly about their interests, recognizing medical care. They can agree that they will never know for sure that parties rarely articulate all of their interests right up who caused the accident and that it doesn't make sense to let a front; jury guess and randomly assign liability. They can disagree on how a judge might rule on a motion, but agree that the costs just o Ask the parties to discuss the situation while focusing on to get to the motion (discovery, opportunity costs, attorneys the interests or elements they feel are necessary for a fees) are better spent paying the medical bills. satisfactory solution; To get the parties to engage in the joint discussions that will o Brainstorm, either jointly or in caucus, on all of the lead to a resolution, the mediator must help the parties search for interests affected by the situation;Alternatives to Litigation, Mediation, Arbitration, a... 3 Determine which issues need to be resolved before others can be explored, and determine which issues are related and must be discussed simultaneously; and o Explore the parties' understanding ofthe others: interests. Jarties may perceive their interests to be at odds with the interests of the other party, or they may perceive the other party's interests incorrectly. The mediator will help the parties understand everyone=s interests and the priority of issues as they relate to these interests. Finally, to further the process, the mediator may discuss the overlap in interests and needs to narrow the differences between the parties. It is helpful for the mediator to make these common interests explicit, showing the parties how much they agree on. In the fashion discussed in Getting Past Nb,4 this is one way for the mediator to begin \"collecting yeses."Also, the mediator likely will address the areas of di'erence so that the parties understand each other's interests and needs that will need to be met to resolve the problem. The mediator has great exibility to take the parties from simply seeing that they have something in common and depend [IQA on each other to jointly resolving the problem. He might keep the parties talking together in a joint session the whole time, or he might choose to separate them into Caucuses, talking with them separately. Often, mediators do several of each, remaining vigilant to make sure that each part of the process is being used effectively and has a purpose. The purpose for and conduct of joint sessions and caucuses are discussed below. 7.3.11 Join: Sessions After the opening statements, there is much variation in how mediators conduct the process. Some go immediately into caucus. Others conduct a brief joint session and then break into caucus, while still others conduct ajoint session unless they absolutely must go into caucus, and even then, caucus briefly and sparingly. Perhaps the best mediators vary their methods depending on the type of dispute, the needs of the parties, and the issues raised. The purposes for holding a joint session, or sessions, are to encourage the parties to understand and exchange information, to work on their relationship, or to continue a productive dialogue. These sessions are particularly important if the parties EEEIC'Z 9 Alternatives to Litigation, Mediation, Arbitration, a... have a relationship that will continue beyond the end of the dispute. For example, divorcing parents will have to continue to work together to raise their children; if it is possible to help them begin forging a relationship as individuals rather than as a couple and yet one that recognizes mutual interests and needs= joint sessions may be essential. The issues mediators will face mjoint session include: a How much information should be exchanged jointly and how to encourage the exchange; a How to allow emotions to escalate and then bring the parties back down, feeling like they've had their say; a How to difise emotions and turn parties toward problem) solving; and a \"'hen to break offajoint session. Unformnately, there are no bright-line rules to answer any of these issues. The mediator must keep in mind, however, that she needs to stop anything destructive before it destroys or harms the process. So, while it may be essential that the parties \\'mrk through their emotions, it may be better to let the emotional . r-I La party vent in caucus or use a caucus to guide him on how to vent productively in joint session. One complaint about inexperienced mediators is that they break into caucus too soon. When the mediator uses the communication skills discussed in chapter four, takes charge of the process, and provides guidance about how the problem might best be approached= joint sessions can be extremely helpful even in hotly contested disputes. For example, where parties are unable to talk together about some issues, a mediator ma),r use a caucus to teach the parties how to use \"T statements" or practice techniques for communicating controversial information before even beginning the joint discussion of issues that are the basis for the mediation. This way= the parties will see that the")r are able to work together, become invested in the process and= thus, be more likely to keep working toward a complete resolution. Some things that are oen best discussed injoint session include the procedural history, past problems and resolutions= and commonalities. For example, the panies likely have or should have a common understanding of where this dispute is in the company's dispute resolution process or at what stage in