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MEDIATION, Negotiations, DISPUTE RESOLUTION, Dispute Resolution Mechanisms…

- - - - The agreement contains details of: FEES/ COSTS; Payment terms; The content of the DISPUTE; assent of both parties to selected mediator. USUALLY FIRST STEP IN PROCESS
- - - - Start with a joint session. Each party will have a chance to make an opening statement or tell their story.
      - We MAY then move on to having private sessions. Remember not to draw negative inferences from taking longer with one party than the other.
        
        The private session are for saying things to the mediator not wished to be said in the joint session.
      - GROUND RULES
        
        NO INTERUPTING if you have a comment, write it down and address it at an appropriate time.
        
        Respect the process, it takes time.
        
        CELL PHONES on silent please.
        
        Ask the PARTIES if they would like the add any ground rules.
- - - - Tie up loose ends; Make SURE there is in fact agreement; draft and settle.
- - - - Prep: strategy, mandate, motivation for issues, deciding on the team (lawyers, experts etc.)
        
        Introductions: Housekeeping: agree on the process. What are the rules, who will chair it if there needs to be one
        What if there is an impasse (deadlock) and do you insert a deadlock breaking mechanism i.e. sufficient consensus
        Gathering of information - everyone needs the relevant information at the preparation stage
  - - - Evaluation of Options:
        debate
        propose and counter propose link issues
        
        Agreeing on Solutions:
        Plan where everyone is to some extent satisfied
        Offer concessions
        Important to check the agreement reach vs the mandate and summarise throughout
- - - - the aim of negotiations is to get to the interest of the parties and achieve a win-win
  - - - Mazlo's Hierachy:
        Needs from most basic to most important (pyramid)
- - - - Trusted friend: Would I be comfortable telling my best friend, spouse, or children what I am doing?
        
        Universality: Would I advise anyone else in my situation to act this way?
        
        Legacy: Does this action reflect how I want to be known and remembered?
- - - - Interest
        
        Cause – Perceived or Actual competitive interests (Substantive; Procedural; Psychological)
        
        Intervention – Focus on interests NOT positions; Look for objective criteria; develop solutions that address all parties needs; develop trade-offs that to satisfy interests
      - Relationship
        
        Causes – Strong emotions; Misconceptions | Stereotypes; Poor communication/ miscommunication; repeated negative behaviour
        
        Interventions – control emotions through procedure ground rules etc;
        Legitimise feelings to promote expression of emotions;
        build positive perceptions; improve communication;
        Change structure to block negative behaviour;
        encourage positive problem solving solutions (reduce coercion)
      - Value
        
        Causes – Differing criteria for evaluating ideas or behaviour.
        – Exclusive intrinsically valuable goals.
        – Different ways of life, ideologies, religion.
        
        Interventions – Avoid value defining the problem;
        – Agree to disagree;
        – Creat a sphere in which only one set of values dominates;
        – Search for a shared overarching goal.
      - Structural
        
        Causes – Destructives patterns of behaviour.
        – Unequal control, ownership, or distribution of resources;
        – Unequal power or authority;
        – Environmental factors that hinder co-operation;
        – Time constraints.
        
        Interventions – Define and change roles;
        – Replace patterns of behaviour;
        –Reallocate ownership of resources;
        – Establish fair and mutually acceptable decision making process;
        – Change to interest based bargaining;
        – Modify Means of influence used;
        – Change relationship of parties;
        – Modify external pressure;
        – Change time constraints.
      - Data
        
        Intervention – Reach agreement on what is important; Agree on process of data collection; Develop common criteria to assess data; Use third party experts to gain outside opinion or break deadlock.
        
        Cause – lack of information; Misinformation; different views on what is relevant; Different interpretations of data; Different assessment of procedure.
- - - - Goals/ Interests
- - - - URY AND FRY principles:
        Focus on interests; Separate people from problem;
        Invent Options; Focus on Objective criteria
      - Personal Attack – Ignore (unless overly offensive); Threat – Ignore unless sufficiently serious good to disarm through "Could you please repeat/ clarify that"; Negativity – Ask 'what if' questions; Sarcasm – Don't Counter attack; Inflexibility – try to reinterpret or reframe the stance.
      - Focus on the MERITS
- - - - Mediation
        
        Conciliation
        
        Facilitation
        
        Good Offices
        
        Med-Arb
        
        Arb-Med
        
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        s 135 LRA 66 of 1995: Commissioner must determine a process to resolve the dispute including – Mediation; Fact Finding; Making a recommendation which may include an advisory arbitration award