Environmental Advocacy Workshop Series

Purpose

*To increase awareness and introduce concept of the alternative dispute resolution continuum
*To outline characteristics of mediation and the IAMA model-there are also other models
*To identify skills useful for preventing and resolving conflicts
*To identify the benefits of mediation for environmental dispute and policy resolution
*To stimulate and inspire participants to follow up

Negotiation

*Collaborative/Problem Solving
*Opportunity to find mutually acceptable outcome
*Can be long and unsatisfactory due to: Combative, competitive
*No neutral party to help move entrenchment
*Compromising *Doesn’t deal well with power imbalance

What is Mediation?

*A confidential process
*Independent and neutral third party (the mediator)-–no vested interest
*Mediator uses facilitation and technical skills; advises on the process of mediation
*Systematically isolates issues
*Parties, not mediator, develop options
*Negotiate and reach workable solution to meet needs
*Mediator has no advisory or determinative role re content of the dispute or the outcome of its resolution.

Principles of Mediation

*Separate people from problem
*Focus is on interests—not positions
*Parties invent options for mutual gain
*Insist on objective criteria
*Confidential

Characteristics

*Participation usually voluntary
*Parties want a resolution
*Limited procedural rules
*Structured process to keep focussed on resolution
*Informal discussion allows venting of emotions
*Mediator controls process—not content
*Parties decide content and outcome
*Flexibility of possible solutions

Skills

*Active listening—feedback
*Agenda—identify interests
*Define issues
*Reframe to: detoxify, look to future direction
*Explore each other’s perspective through reversal techniques
*Generate options—get parties to do this

Breaking Impasse

*Find areas of agreement
*Move to other issues
*Change the process
*Have parties generate options, strategies
*Put issues into broader perspective
*Create doubts about entrenched positions

Intake

*Before mediation day
*Explanation of process and role of mediator
*Assessment of parties capacity and willingness to mediate
*Background to the dispute
*Mediation and confidentiality agreements

Steps 1, 2—Prep, Intro and Setting

Framework
*Welcome
*Confidentiality
*Ground rules/rules of courtesy
*Respect views of other parties
*Do not interject
*Decision Decision-makers present
*Role of support people
*Want to reach agreement

Step 3—Statement Taking

*Ground rules established
*Each party explains to mediator the dispute from their perspective-–they have their say, uninterrupted
*Mediator summarises and checks for accuracy

Key Features
*Equal time for each party
*Interjections stopped to give each party uninterrupted opportunity
*Opportunity for venting-–helps take the heat out in a controlled environment
*Summary by mediator to check understanding

Step 4—List/Agenda Construction

*Parties in turn suggest topics
*Mediator converts to neutral language-–remove blame
*List is agreed—They are the parties’ issues, not the mediators
*Priority is agreed
*Positive language is used

Step 5—Exploration

*Key step
*Parties choose order of items from Agenda (each party chooses one priority in turn)
*Mediator skills
*Encourage parties to talk to each other directly-–it is their dispute or issue
*Get parties to move from blame to understanding each other’s position
*Turn focus to interest based
*Break difficult items down
*Talk about past then future

Step 6—Separate meetings

*Confidential
*Check how parties feel about progress
*Explore options, BATNA, WATNA

Step 7—Option Generation, Negotiation

*Brainstorm and list options using agenda
*Facilitate evaluation of options, use objective criteria
*Encourages interest-based negotiation. Some key issues have come out in the private session; the mediator cannot divulge and it is up to the parties-–mediator may help clarify and test options and their consequences

What happens-–Step 7

*Mediator encourages parties to think of solutions
*Clarifies issues
*Keeps positive atmosphere
*Asks where to if no resolution-–keeps them searching as alternatives may not be viable either

Step 8—Agreement making

*Contract between parties
*Reality check workability of options
*Include specific details-–when, where, how
*Mediator writes the agreement as dictated by the parties, based on negotiations at Step 7
*Arrange review meeting (if appropriate)
*Agree on announcement to external world (if appropriate)

Note: it may have taken more than one mediation session to get to this point

Step 9—Closure

*Acknowledge progress
*Reaffirm confidentiality

Step 10—Debriefing and finishing

*Announcements as agreed
*Report to organisation if required
*Hold review meeting if agreed
*Attend debriefing session

Mediation Steps

*Interests
*Alternatives-–BATNA
*Options
*Standards-–objective criteria
*Commitment
*Communication
*People/Relationship

The Harvard Seven Elements

Summary of Benefits

*Quicker and cheaper than court
*Parties agree solutions rather than Court imposing-–retain control
*Allows ongoing relationship between parties
*Confidential
*Mediator is independent—no vested interest in outcome
*Skilled mediators through IAMA-–consistent approach in all States

“Mediation and arbitration are not just court proceedings conducted in a different place. They require distinct skills, novel approaches, different techniques and a new psychology.”— The Honorable Justice Michael Kirby AC CMG Justice of the High Court of Australia (July 1999)