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Session 3: Concept of Mediation

We have seen that, in some conflict situations, parties may be so fixed in their positions that,
negotiation becomes difficult. Beyond seeking adjudication through the courts, facilitators or
mediators can come in handy to help parties resolve their differences. This session now focuses
on mediation as a concept, types of mediation and the mediation process.

By the end the session, participants should be able to:

 Distinguish between judicial process and various ADR processes in dispute resolution;
 Explain what mediation is
 Understand the mediation process
 Discuss advantages and the challenges of using mediation in settling disputes

Understanding mediation

In our villages and home-towns across Africa, it is common to find a chief, an elder, a pastor or a
catechist involved in face-to-face negotiation with an estranged couple or quarrelling siblings, in
an effort to resolve their differences, unite them or restore peace and harmony. While facilitating
a compromise, the third-party remains neutral and ensures that each side contributes fully to the
process of generating a solution to the problem. The third-party does not impose a solution but
facilitates the emergence of a solution by assisting the disputants to come up with options and to
focus on solutions. The result, frequently, is the amicable settlement of the problem. That, in
simple terms, is mediation.

Mediation then is a voluntary, non-binding process in which parties in conflict discuss their
differences with an impartial person who assists them to reach a settlement. Thus the parties
voluntarily seek the resolution of their differences, with the assistance of a mediator who must be
neutral and impartial.

In a broad sense, mediation is:

1. an extension of the parties’ own efforts to manage their conflict,

2. an intervention by an acceptable third party,
3. non-coercive, non-violent, and ultimately non-binding,
4. an attempt to reduce or prevent violence and achieve a peaceful outcome,
5. a voluntary form of conflict management, whereby the conflict parties retain their control
over the outcome (if not always over the process), as well as their freedom to accept or
reject any aspects of the process or the ultimate agreement.

The mediator has the power to manage the process, but has no power over the content of the
outcome. The mediator is simply a facilitator between the parties and has no power therefore to
make awards or orders. A mediator may, where necessary or appropriate, make
recommendations for settlement after the parties have generated the options.

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Types of mediation

 Court referred mediation (court connected ADR) – It applies to cases pending in Courts
and which the Courts will refer to mediation.
 Private mediation
 Indigenous mediation
 Informal mediation

When to use mediation/ripeness of mediation

As stated earlier, mediation is an extended from of negotiation and it is considered appropriate

when the conflicting parties are unable to reach a decision through dialogue and negotiation.
This may result from entrenched positions, mistrust, broken relationship and the inability to
resolve the dispute. Zartman (2000) specifies two conditions that are necessary, though not
sufficient, for rational policy makers to be receptive to negotiation/mediation:

1. A mutually hurting stalemate. Both sides realize they are in a costly deadlock that they
cannot escape by escalating the conflict. Such a stalemate is especially motivating if
augmented by a recent or impending catastrophe.
2. A mutually perceived way out. Both sides foresee that “a negotiated solution is possible”
(Zartman, 2000, p. 229), that a formula can be found that is “just and satisfactory to both
parties (Zartman, 1989, p. 291)

Case 1: Ripeness of mediation

The usefulness of the ripeness theory is illustrated by the 1993 Oslo negotiations that led to
establishment of the Palestinian Self-Government Authority (see Pruitt, Bercovitch, and
Zartman, 1997). Both sides were experiencing a stalemate. Israel could not reach the Palestine
Liberation Organization (PLO), which was far away in Tunis, and “The PLO had been politically
and economically weakened by the disintegration of the Soviet Union and by the Arab retaliation
for the PLO’s support of Iraq during the Gulf Crisis, curtailing its capacity to continue an
effective campaign against Israel” (Pruitt, 1997, p. 243). Israel was also experiencing severe
costs and a sense of hopelessness in trying to contain the First Intifada (a Palestinian uprising)
(Aggestam and Jonsson, 1997; Lundberg, 1996); and both sides were aware of an impending
catastrophe in the rise of militant Islam. The growing Hamas movement threatened to unseat the
PLO as leader of the Palestinians, which would have been a catastrophe for PLO Chairman
Yasser Arafat (Corbin, 1994). “Israel’s new Prime Minister Yitzhak Rabin also feared this
development and foresaw the possibility that a fundamentalist Palestinian leadership would make
common cause against Israel with militant Iran or a revitalized Iraq” (Pruitt, 1997, p. 243).
Memory of a recent near catastrophe—Iraqi missile attacks during the 1991 Gulf War—
strengthened this concern. Rabin had won the election with the promise that he would negotiate a
settlement with the Palestinians, and he quickly learned that this negotiation could be done only
with PLO participation (Lieberfeld, 1999).
Source: Ndinga-Muvumba (2011) Towards Enhancing the Capacity of the African Union in
Mediation.
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As the case study illustrates, mediation is likely to occur when (1) a conflict has gone on for
some time, (2) the efforts of the individuals or actors involved have reached an impasse, (3)
neither actor is prepared to countenance further costs or escalation of the dispute, and (4) both
parties welcome some form of mediation and are ready to engage in direct or indirect dialogue.

Alternative Dispute Resolution

As discussed in the earlier sections of this module, there are four main dispute resolution
processes:
 Negotiation: Parties themselves and/or their attorneys discuss their dispute so as to reach
a resolution;
 Mediation: A mediator who is described as the neutral facilitates the process by assisting
the disputants to resolve their conflict but the final decision is taken by the disputants
themselves and not the neutral;
 Arbitration: A neutral hears the case of both parties and makes a binding award;
 Litigation: A judge hears the case of both parties and gives a binding judgment

ADR refers to a range of methods and techniques for resolving disputes (Reference, Section 135
of the ADR Act [Act 798]). ADR was in existence even before the advent of the formal court
system. The bulk of the socially disadvantaged naturally may subscribe to ADR as the
overwhelming majority of the poor do not have access even to the lowest level of the formal
court system.

There are several categories of ADR. First, we have court-connected ADR, under which the
courts are mandated to resort to ADR by referring disputes firstly to compulsory ADR before
formal trial can commence in the court. Under the latter, termed the integrated or mandatory
approach, ADR is integrated into the court process as a mandatory requirement. This is practiced
in the Commercial Court Division of the High Court. The practice there is additional to the
normal reference of cases ordered by other courts to arbitration where the judge is of the opinion
that ADR will be better suited to resolve any particular dispute.

The mechanisms of ADR also exist in the informal and traditional set-up. Informal justice
system applies those traditional processes which are not formally regulated and includes other
forms of social control practices that occur outside the bounds of legal regulations.

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Table 1: Comparison between Judicial Process and Various ADR Processes
Judicial Process Arbitration Mediation
Judicial process is an Arbitration is a quasi-judicial Mediation is a negotiation process
adjudicatory process adjudicatory process where and not an adjudicatory process. The
where a third party the arbitrator(s) appointed by mediator facilitates the process.
(judge/ other authority) the Court or by the parties Parties participate directly in the
decides the outcome. decide the dispute between resolution of their dispute and decide
the parties. the terms of settlement.
Procedure and decision Procedure and decision are Procedure and settlement are not
are governed, restricted, governed, restricted, and controlled, governed or restricted by
and controlled by the controlled by the provisions statutory provisions thereby allowing
provisions of the of the ADR Act [Act 798]). freedom and flexibility
relevant statutes.
The decision is binding The award in an arbitration is A binding settlement is reached only
on the parties binding on the parties if parties arrive at a mutually
acceptable agreement.
Adversarial in nature, as Adversarial in nature as focus Collaborative in nature as focus is on
focus is on past events is on determination of rights the present and the future and
and determination of and liabilities of parties. resolution of disputes is by mutual
rights and liabilities of agreement of parties irrespective of
parties. rights and liabilities.
Personal appearance or Personal appearance or active Personal appearance or active
active participation of participation of parties is not participation of parties is always
parties is not always always required required
required
A formal proceeding A formal proceeding held in A non-judicial and informal
held in public and private following strict proceeding held in private with
follows strict legal procedural stages. flexible procedural stages.
proceedings
Decision is appealable. Award is subject to challenge Decree/Order in terms of the
on specified grounds settlement is final and is not
appealable.
No opportunity for No opportunity for parties to Optimal opportunity for parties for
parties to communicate communicate directly with parties to communicate directly with
directly with each other. each other. each other in the presence of the
mediator
Source: Mediation Training Manual of India, 2011

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Reasons for Mediation

Modern mediation focuses on the resolution of the conflict between the disputants by uncovering
the disputants' underlying interests and finds common ground. Based upon this common ground,
a settlement between the disputants can be reached. Whereas the process itself enables the
disputants to confront tensions underlying the dispute, mediated settlements often include a
framework which aids the disputants in resolving problems in the future. This is why mediation
has been called a "forward looking" process.

Box 2: Narratives of participants on advantages of mediation

Some of the parties’ reasons for favoring mediation suggest that it offered a significantly different
experience than the directive and oracular nature of customary mediation. Parties liked “the neutrality of
the mediator,” “the process,” the “documentation of our agreement,” “our power to determine the
outcome” and “not the mediator[s],” and the ability “to talk freely. Nobody forced me to understand
something against my will.”

Other responses ranged from efficiency-- “It was short and simple,” fair and fast” to the benefits of
receiving advice or insight on a particular issue. Most of the responses, however, focused on the common
characteristics of procedural justice: the ability to express one’s views, being treated respectfully and
evenhandedly, and perceptions of fairness.
Source: Ahorsu, K. & Ame, R. (2011) “Managing Communal Conflicts: Mediation with
Traditional Flavour,” African Conflict and Peacebuilding Review Journal, Vol. 1, Issue 2

From the comments from respondents in the box above, it can be noted that mediation:
 Gives people opportunity to become directly involved in resolution of their conflict;
 Provides opportunity to get to the root cause of conflict;
 Provides much less costly/time consuming way of settling disputes.
 Transform conflicts into beneficial relationships

Box 3: Narratives of parties on what did not like about mediation

When asked to describe what they did not like about mediation, responds offered objections both to
process, --“not given the opportunity to invite other people who know much about the case,” the “liberal
nature of the process” “too much liberty for the parties” as well as objections to structure--“The other
party was allowed plenty of time to speak,” “my lawyer did not get the chance to speak as much as I
expected.”

Other negative perceptions of mediation also reveal in part a misunderstanding of the mediation process
as one party had “wanted the mediator to pronounce judgment,” and another was concerned that “the
respondent was not punished enough.” Finally, behavioral concerns affected the perception of mediation.
Parties had a negative perception of mediation based on a mediator’s behavior “allowing my husband’s
insolence,” and also based on a plaintiff’s behavior due to an “inability to compromise.”
Source: Ahorsu, K. & Ame, R. (2011) “Managing Communal Conflicts: Mediation with
Traditional Flavour,” African Conflict and Peacebuilding Review Journal, Vol. 1, Issue 2

From the respondents’ comments in the box above, it can be noted that mediation has the
following limitations:
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  Sessions are confidential, so notes are not kept on file. Consequently, possible
malpractice and misuse are difficult to detect and correct.
 One party may be more articulate than another
 One party may have better financial resources and may want to go to court.
 Underlying personal problems may restrict the process.
 Participation is voluntary - there is no compulsion.
 The mediator may be inexperienced or unprofessional which may rather complicate
matters.

The Process of Mediation

Mediation is a dynamic process in which the mediator assists the parties to negotiate a settlement
for resolving their dispute. In practice, the logistics of a mediated settlement are defined by the
disputants. Several mediation services have set rules of procedure which establish the parameters
of the settlement process. These rules are flexible and may be tailored to the disputants’ case. As
mediation is shaped to meet the disputants' needs, its overall form can range from a three to a
five stage process, with the number of stages dependent upon the nature of the dispute.

Figure 8: Process of mediation

Source: Mediation Training Manual of India, 2011

Usually, the mediator uses the four functional stages of mediation, namely, (i) Introduction and
Opening Statement (ii) Joint Session (iii) Separate Session and (iv) Closing. These functional
stages are used in an informal and flexible manner so that the mediation process gains
momentum, following a specific and predictable course as illustrated below.

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Each of the above phases reflects an essential pre-requisite in the dynamics of the mediation
process which must be accomplished before moving to the next phase.

Skills of a mediator

Mediators have been described from the passive facilitator to the active shaper of situation
(Merry, 1982). This variation is caused by the differing compromises mediations make between
expectations. The golden rule for a mediator is the acceptability by all conflict parties.
Impartiality may help the mediator to gain high acceptability but it is not always necessary.
Thus, a mediator often has a formal mandate to fulfill the role of a third party according to
clearly defined rules. A mediator should possess the following qualities:

 Active listener
 Use of diplomatic language
 Good communication skills
 Effective summarizer (evaluation skills)
 Empathetic
 Good facilitator
 Creative
 Ability to deal with barbed comments with neutral statements; (Ask for specifics)
 Emphasise commonalities
 Leadership skills
 Consensus builder

Ethics and Code of Conduct for Mediators

1. Avoid conflict of interest

A mediator must avoid mediating in cases where they have direct personal, professional or
financial interest in the outcome of the dispute. If the mediator has any indirect interest (e.g. he
works in a firm with someone who has an interest in the outcome or he is related to someone
who has such an interest) he is bound to disclose to the parties such indirect interest at the
earliest opportunity and he shall not mediate in the case unless the parties specifically agree to
accept him as mediator despite such indirect interest.

Where the mediator is an advocate, he shall not appear for any of the parties in respect of the
dispute which he had mediated.

A mediator should not establish or seek to establish a professional relationship with any of the
parties to the dispute until the expiry of a reasonable period after the conclusion of the mediation
proceedings.

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 2. Awareness about competence and professional role boundaries
Mediators have a duty to know the limits of their competence and ability in order to avoid taking
on assignments which they are not equipped to handle and to communicate candidly with the
parties about their background and experience.

Mediators must avoid providing other types of professional service to the parties to mediation,
even if they are licensed to provide it. Even though, they may be competent to provide such
services, they will be compromising their effectiveness as mediators when they wear two hats.

3. Practice Neutrality
Mediators have a duty to remain neutral throughout the mediation i.e. from beginning to end.
Their words, manner, attitude, body language and process management must reflect an impartial
and even handed approach.

4. Ensure Voluntariness
The mediators must respect the voluntary nature of mediation and must recognize the right of the
parties to withdraw from the mediation at any stage.

5. Maintain Confidentiality
Mediation being confidential in nature, a mediator shall be faithful to the relationship of trust and
confidentiality imposed on him as a mediator. The mediator should not disclose any matter
which a party requires to be kept confidential unless;
 the mediator is specifically given permission to do so by the party concerned; or
 the mediator is required by law to do so.

6. Do no harm
Mediators should avoid conducting the mediation process in a manner that may harm the
participants or worsen the dispute. Some people suffer from emotional disturbances that make
mediation potentially damaging psychologically. Some people come to mediation at a stage
when they are not ready to be there. Some people are willing and able to participate, but the
mediator handles the process in a way that inflames the parties' antagonism towards each other
rather than resolving. In such situations, the mediator must modify the process (e.g. meet the
parties separately or meet the counsel only) and if necessary withdraw from mediation when it
becomes apparent that mediation, even as modified, is inappropriate or harmful.

7. Promote Self-determination
Supporting and encouraging the parties in mediation to make their own decisions (both
individually and collectively) about the resolution of the dispute rather than imposing the ideas
of the mediator or others, is fundamental to the mediation process. Mediator should ensure that
there is no domination by any party or person preventing a party from making his/her own
decision.

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 8. Facilitate Informed Consent
Settlement of dispute must be based on informed consent. Although, the mediator may not be the
source of information for the parties, mediator should try to ensure that the parties have enough
information and data to assess their options of settlement and the alternatives to settlement. If the
parties lack such information and data, the mediator may suggest to them how they might obtain
it.

9. Discharge Duties to third parties

Just as the mediator should do no harm to the parties, he should also consider whether a proposed
settlement may harm others who are not participating in the mediation. This is more important
when the third parties likely to be affected by a mediated settlement are children or other
vulnerable people, such as the elderly or the infirm. Since third parties are not directly involved
in the process, the mediator has a duty to ask the parties for information about the likely impact
of the settlement on others and encourage the parties to consider the interest of such third parties
also.

10. Commitment to Honesty and Integrity

For a mediator, honesty means, among other things, full and fair disclosure of:
 his qualifications and prior experience;
 direct or indirect interest if any, in the outcome of the dispute;
 any fees that the parties will be charged for the mediation; and
 any other aspect of the mediation which may affect the party's willingness to participate
in the process.

Honesty also means telling the truth when meeting the parties separately, e.g. if party 'A'
confidentially discloses his minimum expectation and party 'B' asks the mediator whether he
knows the opponent's minimum expectation, saying 'No' would be dishonest. Instead, the
mediator could say that he has discussed many things with party 'A' on a confidential basis and,
therefore, he is at liberty to respond to the question, just as he would be precluded from
disclosing to party 'A' certain things what was told by party 'B'. When mediating separately and
confidentially with the parties in a series of private sessions, the mediator is in a unique and
privileged position. He must not abuse the trust the parties placed in him, even if he believes that
bending the truth will further the cause of settlement.

Apart from the fee/remuneration/honorarium, if any, prescribed under the rules, the mediator
shall not seek or receive any amount or gift from the parties to the mediation either before or
after the conclusion of the mediation process.

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 Session 4: Mediation Support Services1

Introduction

With a growing demand for mediation, a lot of attention is now focused on mediation support
services which are considered a central part of the mediation process. Mediation support services
help states, organisations and key individuals to be better equipped to undertake and support
mediation endeavors. Providing effective support to mediators can increase the chances of
successfully preventing, mitigating and resolving conflicts, and of thereby creating a durable and
equitable peace. In particular, we will discuss the following sub-topics:

 Recruitment
 Capacity Building and training
 Financial planning and budgeting

Objectives:

At the end of this session, participants should be able to;

 Explain what mediation support entails
 Understand how to strengthen capacities to support mediation

Explaining mediation support

Mediation support can be defined as ‘activities that assist and improve mediation practices, e.g.
training activities, developing guidance, carrying out research, working on policy issues, offering
consultation, backstopping ongoing mediation processes, networking and engaging with parties’.
It builds capacity of mediation staff as well as conflict parties; provides analytical resources to
enable learning from previous experience; builds on networks for sharing ideas and insights; and
provides on-site support and day-to-day management of the process and parties.

Three parts of mediation support

Mediation support can entail any (or usually several) of the following three activities.
1. Operational support,
2. Institutional capacity building and training
3. Knowledge management and research

The next section looks at ways in which mediation support mechanisms and activities can benefit
the practice of mediation. It provides an overview of the three separate yet overlapping
categories of mediation support activities: operational support; institutional capacity building and
training and knowledge management and research.

1
Centre for Humanitarian Dialogue, 2014
11
Operational support

This includes direct support through field deployment such as on-site thematic and process-
orientated expertise, day-to-day management of the process and parties, and logistic support and
flexible resource management; substantive desk support such as process design and problem-
solving workshops, briefings, research and analysis; as well as support activities including
confidence building and technical support to the parties.

Operational support includes three interlinked areas of work – direct support, general support and
other support activities.

a) Direct support through field deployment, long- and short-term, through highly skilled
staff and experts forming part of the local mediator’s team.

This can feature:

 On-site secretarial assistance to draft reports, take notes and draft agreements; give legal
and communications advice; identify thematic issues and experts; and manage logistics,
human resources and finance.

 mediation practitioners to provide advice and guidance to the mediator and team; design
the process; assess the strategy; and identify thematic concerns.

 Technical experts, for example in power-sharing, constitution-making, security

transformation processes, resource-sharing, land reform, or civil society inclusion, to
address thematic concerns depending on the needs of the process and the issues being
discussed by the negotiating parties.

b) Substantive desk support to the peace process. This type of short-term, periodic support is
provided both on- and off-site by desk officers, political analysts and mediation support
staff.

General support can include:

 Process design, including thinking through of the strategy; ensuring inclusion of parties
and coordination mechanisms; and securing a venue and support team. As the process
evolves, the design can comprise problem-solving workshops, such as review/stocktaking
sessions on ongoing processes.

 Briefings on context, substance and previous and ongoing processes to mediators,

experts/advisers, on-site support teams, partners and others joining the process.

 Research and analysis of past and current issues, either context-specific or thematic.

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  The injection of substantive knowledge, such as on power-sharing or gender issues, or
how to deal with amnesty versus transitional justice. This can be done through either
workshops or experts joining the team regularly.

c) Support activities to strengthen the parties’ involvement in the process, such as:

 Confidence-building exercises for the parties (before or during the process), to mitigate
concerns, mistrust and animosity.

 Technical support to parties, including skills training and training on the substantive
issues of the process; clarifying what negotiations are about; providing information and
knowledge on the context and parties involved; introducing new ideas through strategy
development; and defining a negotiation approach.

Institutional capacity building and training

Institutional capacity building and training involve capacity building such as establishing clear
decision-making, planning and coordination procedures, briefings, training curricula design, and
access to expert networks and human resources; and training and skills enhancement, including
training of mid- and high-level mediators and staff.

Capacity building and training programmes can be divided into two sub-categories:

a) Capacity-building activities focused on enhancing institutional support mechanisms

include:

 Rosters of mediators, support staff and experts

 Standard operating procedures (both internal and associated with external relations
with partner organisations) to streamline management across the institution
 Templates for strategic and operational mediation plans
 Training curricula
 Procedures for briefing and debriefing mediators and mediation teams
 Communication and logistical systems
 Human resources.

b) Training and skills enhancement are provided on an institutional and individual level for:

 Practitioners and mediators (high- and mid-level)

 Support staff and experts.

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Knowledge management and research

Knowledge management entails accumulating, managing and disseminating comparative

knowledge or substantive issues on mediation processes; and research refers to both tailor-made,
process-specific research such as conflict briefs and stakeholder analysis, and additional research
relevant to the field.

Access to research and analysis informs mediation processes and teams, and strengthens
mediation actors’ understanding of the context and of their role in the process. It also establishes
and preserves institutional memory.

Knowledge management and related activities include the accumulation, management and
dissemination of knowledge on the profession of mediation and about mediation processes or
substantive issues for mediation. In an ideal scenario (with no human resource restraints), such
activities could include:

 Briefings of newly appointed staff

 Debriefings, lessons-learned exercises, evaluations and case studies of finalised processes
 Dissemination of best practices through guidance notes, guidelines, lessons-learned
reports and other publications.

Research related to mediation support can be:

 Conducted independently of a specific process (i.e. on how to assess and evaluate success
and effectiveness)
 Tailor-made or provided on a needs basis upon request from the field. This could include
conflict briefs or stakeholder analysis.

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 Session 5: Mediation Strategy
Mediation represents a unique opportunity to bring conflicting parties together to achieve a
facilitated resolution. For many conflicts, “getting to the mediation” is simply a matter of
agreeing to mediate, identifying a mediator, and meeting on the day of mediation. However, the
great majority of disputes need a certain amount of preparation and this is where a mediation
strategy becomes very crucial for the overall mediation process. In particular, we will discuss the
following sub-topics:

 Median strategy
 Contents of a mediation strategy

Objectives:

At the end of this session, participants should be able to;

 Design a mediation strategy
 Develop a mediation strategy

What is a mediation strategy?

Mediation strategy denotes an overall plan of mediators to resolve and manage conflicts. Kolb
(1983:249), explains mediation strategy as “an overall plan, approach or method a mediator has
for resolving a dispute. . . [I]t is the way the mediator intends to manage the case, the parties,
and the issue.” A mediation strategy should outline the broad approach to the resolution of the
conflict, principles of process design, and the role of local and international actors, schematic
coordination architecture and an indication of post-agreement requirements to enable advance
planning and identify broad support requirements. The latter should include an indication of the
type of support structure that will need to be established.

Mediation strategies are often flexible and as such come in different forms. The differences in
various mediation strategies may be attributed to how a mediator chooses to handle the
mediation process, and the specific context of the conflict. In essence, the practice and process of
mediation revolve, to a large extent, around mediators’ choice of strategic behaviors.

Designing the mediation strategy

Based on conflict analysis and assessment, the options for designing the intervention will form a
mode of engagement where mediation is one option among other forms of third-party
intervention. It is important to bear in mind that context matters in mediation. Through conflict
analysis, the mediation support team can identify the contextual elements of the crisis.
Sometimes, the context might be supportive to peace processes; at other times, the context might
be detrimental to efforts to reach a sustainable outcome. The peace process might slow down and

15
then pick up again once the context changes. A key challenge for the mediation team is to
analyze the context and wait for a favourable moment to confirm engagement during difficult
periods. While designing the intervention, the mediation team liaises constantly with the relevant
supporting actors as it seeks to run concurrent and complementary peacemaking processes.

Building intervention scenarios

Intervention styles vary greatly according to the mandate, needs of the parties and the mediator.
Thus, contingency planning depends on a sound analysis of the nature of the dispute, the parties
involved and a plan responsive to the respective answers to the following guiding questions:

 Who are the parties and stakeholders in the conflict?

 What do the parties want to achieve?
 How does the mediation team contact and remain in communication with parties?
 How will other stakeholders, such as civil society groups, be involved?
 How will spoilers be identified and managed?
 How cohesive are parties?
 What are parties’ positions and real interests?
 How should the public be involved in the process?
 How can a gender perspective be incorporated in the mediation process and its
substantive issues and what aspects of UNSC Resolution 1325 can be promoted through
the process?
 What do parties expect of the mediator?
 Is the mediation sufficiently objective to manage, settle or resolve the conflict?
 What can be done to enhance ripeness? The term ‘ripeness’ refers to parties resolving
their conflict only when they are ready to do so – when alternative, usually unilateral,
means of achieving a satisfactory result are blocked and the parties feel that they are in an
uncomfortable and costly predicament. At that moment, they seek, or are amenable to,
proposals that offer a way out.
 What are the minimum operating conditions for the mediation to proceed?
 Which actors can provide leverage in case of a stalemate?
 How should the negotiations be sequenced?
 What techniques and strategies are required for the consultation and negotiation phase of
the mediation?
 In what order should substantive issues be approached?
 Is there a need for confidence-building measures to be put in place?
 How should the agreement be implemented?
 How should the agreement be monitored at the political and operational levels?
 Is there a need for specific expertise to generate options for compromise?
 What are the conditions for success of the mediation?

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Enhancing ripeness for mediation intervention

As noted above, a conflict should be ripe for mediation before the mediation processes start.
Even though the mediation team assesses the right intervention strategy, the analysis and
concurrent peacemaking strategies need to ensure that the conflict is ripe for resolution. A
conflict may become ripe for resolution and negotiation when belligerent parties recognise that
they are in a mutually detrimental stalemate and sense that a way forward is possible. They
become aware that they cannot defeat the enemy outright and that continued violence is not only
costly, but also ineffective.

The relevant institutions can do the following to enhance the ripeness of a conflict:
 determine whether parties believe they have reached a mutually hurting stalemate, e.g. a
delegation of the NPC can do an area assessment,
 confirm that parties can deliver on agreements and,
 assess internal political and public support for peace in order to provide scenarios for
action.

Developing the mediation strategy

Once mediation has been chosen as the appropriate tool for intervention during the conflict
analysis, the third party will be required to develop a comprehensive strategy on how the
mediation will proceed. The mediation strategy then becomes the overarching plan of action
which will be developed by an appropriate lead mediator (e.g., Ministry of Interior) and the
National/Regional/District Peace Councils.

The strategic plan will be based on political judgments and choices. The mediation strategy
(strategic plan) should indicate the mediator’s mandate, provide overall direction and focus,
contain clearly formulated goals, objectives and strategies, identify key partners and allies and
outline the approach to addressing the principal challenges and risks. The plan should take
account of all the main actors.

Table 1 provides a list of the activities required to develop a mediation strategy.

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Table 1: Strategic plan for mediation
Item No Indicators Task to be performed
1. mediator’s mandate
2. The overall direction and focus of the mediation
3. clearly formulated goals
4. objectives
5. strategies
6. identify key partners and allies
7. Identify the challenges and risks
8. outline the approach to addressing the principal
challenges and risks
9. What strategies should you put in place to address the
Main actors with an interest in the conflict
10. government and its agencies
11. civil Society Groups
12. International organisations
Source: Authors’ Construct

 The mediator will prepare his/her initial visit to the conflict area to meet with all the
relevant stakeholders and make his/her preliminary strategic assessment.
 The mediator will then convene a strategy session with his/her mediation team to develop
an initial mediation strategy.
 The mediator will thereafter submit a confidential strategic plan to the NPC. This plan
should be reviewed for possible updating every six months or more often if necessary.

Endorsement of a mediation strategy

Once developed, the mediation strategy should be communicated and endorsed at the highest
level of the organizations involved. Some aspects of the strategy may need to remain
confidential. The nature of the mediation is such that strategies may be highly personal and too
sensitive for even the mediator to articulate fully, but it is important to share some sense of the
strategy to enable other components of the organization to play their role in support of the
process. This is necessary to facilitate “vertical” strategic coherence (within organizations) as
well as “horizontal” coherence (among organizations). Coherence at all levels ensures that all
actors convey the same messages and complement each other’s efforts at their various levels of
intervention (e.g., leveraging the influence of allies at the local level as well as through
diplomatic activity at the NPC Headquarters and in district capitals). A pragmatic approach
should nonetheless be adopted to avoid overloading the endorsement process.

From strategy to operational plan

The mediation strategy provides the basis for conceptualising the structure of a mediation team
and corresponding substantive, administrative and logistical needs. This can be articulated in an
operational plan, which focuses on implementing the strategy. While an overarching strategic
plan provides overall direction and focus, with clearly formulated goals, objectives and
strategies, the operational plan is a technical document that translates the strategic plan into

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activities, tasks and time frames, assigns responsibility for action, and identifies what is required
in terms of posts, expertise, logistics, equipment and funds.

The purpose of the operational plan is to translate the strategy into doable steps. These include:
 defining concrete steps to be taken
 who on the team is to do each specific step?
 approximate timelines for completing each step
 communication strategies between/among team members and partners
 budgeting and logistical requirements for each step
 how/when to update the strategy as events unfold

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PART C

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 Session 6: Doing Mediation

The mediation process can be functionally broken down into four stages. These are:

 Introduction and Opening Statement

 Joint Session
 Separate Session(s)
 Closing

Stage 1: Introduction and Opening Statement

Objectives
 Establish neutrality
 Create an awareness and understanding of the process
 Develop rapport with the parties
 Gain confidence and trust of the parties
 Establish an environment that is conducive to constructive negotiations
 Motivate the parties for an amicable settlement of the dispute
 Establish control over the process

Seating Arrangement in the Mediation Room

At the commencement of the mediation process, the mediator shall ensure that the parties and/or
their counsel are present. There is no specific or prescribed seating arrangement. However, it is
important that the seating arrangement takes care of the following:

 The mediator can have eye-contact with all the parties and he can facilitate effective
communication between the parties.
 Each of the parties and his counsel are seated together.
 All persons present feel at ease, safe and comfortable.

Introduction
 To begin with, the mediator introduces himself by giving information such as his name,
areas of specialization if any, and number of years of professional experience.
 Then he furnishes information about his appointment as mediator, the assignment of the
case to him for mediation and his experience if any in successfully mediating similar
cases in the past.
 Then the mediator declares that he has no connection with either of the parties and he has
no interest in the dispute.
 He also expresses hope that the dispute would be amicably resolved. This will create
confidence in the parties about the mediator's competence and impartiality.
 Thereafter, the mediator requests each party to introduce himself. He may elicit more
information about the parties' and may freely interact with them to put them at ease.
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  The mediator will then request the counsel to introduce themselves.
 The mediator will then confirm that the necessary parties are present with authority to
negotiate and make settlement decisions
 The mediator will discuss with the parties and their counsel any time constraints or
scheduling issues.
 If any junior counsel is present, the mediator will elicit information about the senior
advocate he is working for and ensure that he is authorized to represent the client.

The Mediator's Opening Statement

The opening statement is an important phase of the mediation process. The mediator explains in
a language and manner understood by the parties and their counsel, the following:

 Concept and process of mediation

 Stages of mediation
 Role of the mediator
 Role of advocates
 Role of parties
 Advantages of mediation
 Ground rules of mediation
The mediator shall highlight the following important aspects of mediation:
 Voluntary
 Self-determinative
 Non-adjudicatory
 Confidential
 Good-faith participation
 Time-bound
 Informal and flexible
 Direct and active participation of parties
 Party-centred
 Neutrality and impartiality of mediator
 Finality
 Possibility of settling related disputes
 Need and relevance of separate sessions

The mediator shall explain the following ground rules of mediation:

 Ordinarily, the parties/counsel may address only the mediator
 While one person is speaking, others may refrain from interrupting
 Language used may always be polite and respectful
 Mutual respect and respect for the process may be maintained
 Mobile phones may be switched off
 Adequate opportunity may be given to all parties to present their views

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Finally, the mediator shall confirm that the parties have understood the mediation process and
the ground rules and shall give them an opportunity to get their doubts if any, clarified.

Stage 2: Joint Session (understanding the problem and defining the problem)

Objectives
 Gather information
 Provide opportunity to the parties to hear the perspectives of the other parties
 Understand perspectives, relationships and feelings
 Understand facts and the issues
 Understand obstacles and possibilities
 Ensure that each participant feels heard

Procedure
 The mediator should invite parties to narrate their case, explain perspectives, vent
emotions and express feelings without interruption or challenge.

1. First, the plaintiff/petitioner should be permitted to explain or state his/her

case/claim in his/her own words.
2. Second, counsel would thereafter present the case and state the legal issues
involved in the case.
3. Third, defendant/respondent would thereafter explain his/her case/claim in his/
her own words.
Fourth, counsel for defendant/respondent would present the case and state the legal
issues involved in the case.

 The mediator should encourage and promote communication, and effectively manage
interruptions and outbursts by parties.

 The mediator may ask questions to elicit additional information when he finds that facts
of the case and perspectives have not been clearly identified and understood by all
present.

 The mediator would then summarize the facts, as understood by him, to each of the
parties to demonstrate that the mediator has understood the case of both parties by having
actively listened to them.
 Parties may respond to points/positions conveyed by other parties and may, with
permission, ask brief questions to the other parties.

 The mediator shall identify the areas of agreement and disagreement between the parties
and the issues to be resolved.

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  The mediator should be in control of the proceedings and must ensure that parties do not
'take over' the session by aggressive behaviour, interruptions or any other similar
conduct.

 During or on completion of the joint session, the mediator may separately meet each
party with his counsel, usually starting with the plaintiff/petitioner. The timing of holding
the separate session may be decided by the mediator at his discretion having regard to the
productivity of the on-going joint session, silence of the parties, loss of control, parties
becoming repetitive or request by any of the parties.

 There can be several separate sessions. The mediator could revert back to a joint session
at any stage of the process if he feels the need to do so.

Stage 3: Separate Session (Deeper understanding of the interests and needs of parties)

Objectives
 Understand the dispute at a deeper level
 Provide a forum for parties to further vent their emotions
 Provide a forum for parties to disclose confidential information which they do not wish to
share with other parties
 Understand the underlying interests of the parties
 Help parties to realistically understand the case
 Shift parties to a solution-finding mood
 Encourage parties to generate options and find terms that are mutually acceptable

Procedure
i. Re - Affirming Confidentiality
During the separate session each of the parties and his counsel would talk to the mediator in
confidence. The mediator should begin by re-affirming the confidential nature of the process.

ii. Gathering Further Information

The separate session provides an opportunity for the mediator to gather more specific
information and to follow-up the issues which were raised by the parties during the joint session.
In this stage of the process:

 Parties vent personal feelings of pain, hurt, anger etc.,

 The mediator identifies emotional factors and acknowledges them;
 The mediator explores sensitive and embarrassing issues;
 The mediator distinguishes between positions taken by parties and the interests they seek
to protect;
 The mediator identifies why these positions are being taken (need, concern, what the
parties hope to achieve);

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  The mediator identifies areas of dispute between parties and what they have previously
agreed upon;
 Common interests are identified;
 The mediator identifies each party's differential priorities on the different aspects of the
dispute (priorities and goals) and the possibility of any trade off is ascertained.
 The mediator formulates issues for resolution

Reality - Testing
After gathering information and allowing the parties to vent their emotions, the mediator makes a
judgment whether it is necessary to challenge or test the conclusions and perceptions of the
parties and to open their minds to different perspectives. The mediator can then, in order to move
the process forward, engage in REALITY-TESTING. Reality-testing may involve any or all of
the following:

 A detailed examination of specific elements of a claim, defense, or a perspective;

 An identification of the factual and legal basis for a claim, defense, or perspective or
issues of proof thereof;
 Consideration of the positions, expectations and assessments of the parties in the context
of the possible outcome of litigation;
 Examination of the monetary and non-monetary costs of litigation and continued conflict;
 Assessment of witness appearance and credibility of parties;
 Inquiry into the chances of winning/losing at trial; and
 Consequences of failure to reach an agreement.

Techniques of Reality-Testing
Reality-Testing is often done in the separate session by:
 Asking effective questions,
 Discussing the strengths and weaknesses of the respective cases of the parties, without
breach of confidentiality, and/or
 Considering the consequences of any failure to reach an agreement (Best Alternative to
Negotiated Agreement (BATNA), Worst Alternative to Negotiated Agreement
(WATNA) and Most Likely Alternative to Negotiated Agreement (MLATNA) analysis.

1. Asking Effective Questions

Mediator may ask parties questions that can gather information, clarify facts or alter perceptions
of the parties with regard to their understanding and assessment of the case and their
expectations.

Examples of effective questions:

 OPEN-ENDED QUESTIONS like 'Tell me more about the circumstances leading up to
the signing of the contract'. 'Help me understand your relationship with the other party at
the time you entered the business'. 'What were your reasons for including that term in the
contract?'

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  CLOSED QUESTIONS, which are specific, concrete and which bring out specific
information. For example, 'it is my understanding that the other driver was going at 60
kilometers per hour at the time of the accident, is that right?' 'On which date the contract
was signed?' 'Who are the contractors who constructed this building?'

 QUESTIONS THAT BRING OUT FACTS: 'Tell me about the background of this
matter'. 'What happened next?'

 QUESTIONS THAT BRING OUT POSITIONS: 'What are your legal claims?' 'What are
the damages?' 'What are their defenses?'

 QUESTIONS THAT BRING OUT INTERESTS: 'What are your concerns under the
circumstances?' 'What really matters to you?' 'From a business / personal / family
perspective, what is most important to you?' 'Why do you want divorce?' 'What is this
case really about?' 'What do you hope to accomplish?' 'What is really driving this case?'

2. Discussing the Strengths and Weaknesses of the Respective Cases of the Parties
The mediator may ask the parties or counsel for their views about the strengths and weaknesses
of their case and the other side's case. The mediator may ask questions such as, 'How do you
think your conduct will be viewed by a Judge?' or 'Is it possible that a judge may see the situation
differently?' or 'I understand the strengths of your case, what do you think are the weak points in
terms of evidence?' or 'How much time will this case take to get a final decision in court?' Or
'How much money will it take in legal fees and expenses in court?

3. Considering the Consequences of any failure to reach an agreement (BATNA/WATNA

/MLATNA Analysis).
One technique of reality-testing used in the process of negotiation is to consider the different
alternatives to a negotiated settlement. In the context of mediation, the alternatives are 'the best',
'the worst' and 'the most likely’ outcome if a dispute is not resolved through negotiation in
mediation. As part of reality-testing, it may be helpful to the parties to examine their alternatives
outside mediation (specifically litigation) so as to compare them with the options available in
mediation. It is also helpful for the mediator to discuss the consequences of failing to reach an
agreement e.g., the effect on the relationship of the parties, the effect on the business of the
parties etc.

While the parties often wish to focus on best outcomes in litigation, it is important to consider
and discuss the worst and the most likely outcomes also. The mediator solicits the viewpoints of
the advocate/party about the possible outcome in litigation. It is productive for the mediator to
work with the parties and their advocates to come to a proper understanding of the best, the worst
and the most likely outcome of the dispute in litigation as that would help the parties to
recognize reality and thereby formulate realistic and workable proposals.

If the parties are reaching an interest-based resolution with relative ease, a

BATNA/WATNA/MLATNA analysis need not be resorted to. However, if parties are in
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difficulty at negotiation and the mediator anticipates hard bargaining or adamant stands,
BATNA/ WATNA/ MLATNA analysis may be introduced.

By using the above techniques, the mediator assists the parties to understand the reality of their
case, give up their rigid positions, identify their genuine interests and needs, and shift their focus
to problem-solving. The parties are then encouraged to explore several creative options for
settlement.

4. Brain Storming (Creating Options and Evaluating Options)

Brain Storming is a technique used to generate options for agreement. There are two principal
issues here:
a) Creating options
b) Evaluating options

Creating options: - Parties are encouraged to freely create possible options for agreement.
Options that appear to be unworkable and impractical are also included. The mediator reserves
judgment on any option that is generated and this allows the parties to break free from a fixed
mind set. It encourages creativity in the parties. Mediator refrains from evaluating each option
and instead attempts to develop as many ideas for settlement as possible. All ideas are written
down so that they can be systematically examined later.

Evaluating options: - After inventing options the next stage is to evaluate each of the options
generated. The objective in this stage is not to criticize any idea but to understand what the
parties find acceptable and not acceptable about each option. In this process of examining each
option with the parties, more information about the underlying interests of the parties is obtained.
This information further helps to find terms that are mutually acceptable to both parties.

Brainstorming requires lateral thinking more than linear thinking.

 Lateral thinking: Lateral thinking is creative, innovative and intuitive. It is non-linear and
non-traditional.

Mediators use lateral thinking to generate options for agreement.

 Linear thinking: Linear thinking is logical, traditional, and rational and fact based.
Mediators use linear thinking to analyze facts, to do reality testing and to understand the
position of parties.

5. Sub- Sessions
The separate session is normally held with all the members of one side to the dispute, including
their advocates and other members who come with the party. However, it is open to the mediator
to meet them individually or in groups by holding sub- sessions with only the advocate (s) or the
party or any member(s) of the party.
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  Mediator may also hold sub-session(s) only with the advocates of both sides, with the
consent of parties. During such sub-session, the advocates can be more open and
forthcoming regarding the positions and expectations of the parties.

 If there is a divergence of interest among the parties on the same side, it may be
advantageous for the mediator to hold sub- session(s) with parties having common
interest, to facilitate negotiations. This type of sub-session may facilitate the
identification of interests and also prevent the possibility of the parties with divergent
interests, joining together to resist the settlement.

6. Exchange of Offers
The mediator carries the options/offers generated by the parties from one side to the other. The
parties negotiate through the mediator for a mutually acceptable settlement. However, if
negotiations fail and settlement cannot be reached the case is sent back to the referral Court.

Stage 4: Closing (Settlement/Non-Settlement)

(A) Where there is a settlement

Once the parties have agreed upon the terms of settlement, the parties and their advocates re-
assemble and the mediator ensures that the following steps are taken:

 Mediator orally confirms the terms of settlement;

 Such terms of settlement are reduced to writing;
 The agreement is signed by all parties to the agreement and the counsel if any
representing the parties;
 Mediator also may affix his signature on the signed agreement, certifying that the
agreement was signed in his/her presence;
 A copy of the signed agreement is furnished to the parties;
 The original signed agreement sent to the referral Court for passing appropriate order in
accordance with the agreement;
 As far as practicable the parties agree upon a date for appearance in court and such date is
intimated to the court by the mediator;
 The mediator thanks the parties for their participation in the mediation and, congratulates
all parties for reaching a settlement.

THE WRITTEN AGREEMENT SHOULD:

 clearly specify all material terms agreed to;

 be drafted in plain, precise and unambiguous language;
 be concise;

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 use active voice, as far as possible. Should state clearly WHO WILL DO, WHAT,
WHEN, WHERE and HOW (passive voice does not clearly identify who has an
obligation to perform a task pursuant to the agreement);
 use language and expression which ensure that neither of the parties feels that he or she
has 'lost';
 ensure that the terms of the agreement are executable in accordance with law;
 be complete in its recitation of the terms;
 avoid legal jargon, as far as possible use the words and expressions used by the parties;
 as far as possible state in positive language what each parties agrees to do;
 as far as possible, avoid ambiguous words like reasonable, soon, co-operative, frequent
etc;

(B) Where there is no settlement

 If a settlement between the parties could not be reached, the case would be returned to the
referral Court merely reporting "not settled". The report will not assign any reason for
non settlement or fix responsibility on any one for the non-settlement. The statements
made during the mediation will remain confidential and should not be disclosed by any
party or advocate or mediator to the Court or to anybody else.

 The mediator should, in a closing statement, thank the parties and their counsel for their
participation and efforts for settlement.

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