CONFLICT MANAGEMENT & MEDIATION

HANDBOOK
 CONTENT
PART ONE:

ONE
SECTION ONE: INTRODUCTION TO CONFLICT MANAGEMENT

CONFLICT

TWO
MANAGEMENT SECTION TWO: DEVELOPING CONFLICT MANAGEMENT SKILLS

THREE
SECTION THREE: NEGOTIATING THROUGH WORKPLACE CONFLICT

FOUR
SECTION FOUR: TEAMS AND CONFLICT

ONE
SECTION ONE: AN OVERVIEW OF MEDIATION

PART TWO:

TWO
SECTION TWO: A PROCESS FRAMEWORK FOR MEDIATION
THE CONCEPT
OF MEDIATION

THREE
SECTION THREE: THE ROLE OF THE MEDIATOR AND OTHERS

FOUR
SECTION FOUR: COMMUNICATION SKILLS FOR EFFECTIVE MEDIATION

FIVE
SECTION FIVE: USING NEGOTIATION SKILLS AS A MEDIATOR

SECTION SIX: COMPETENCE, GOOD PRACTICE AND ETHICS

SIX
2
This publication is the property of the UNHCR and is intended
for internal use only. It may not be disclosed, reproduced,
stored in a retrieval system, distributed or transmitted in
whole or in part, in any form or by any means, electronic,
mechanical, photocopying, recording, or otherwise, to any
third party without the prior written permission of the
UNHCR Global Learning Centre (GLC), Ipoly u. 5 B., C., D.,
Budapest, 1133 Hungary.
Acknowledgements: The Global Learning Centre (GLC)
wishes to express its acknowledgements to the Centre for
Effective Dispute Resolution (CEDR) which developed the
Handbook along with adjoining course materials.
Published by UNHCR Global Learning Centre
Copyright © 2015 UNHCR GLC
Layout & Design: BakOS DESIGN

3
About this Handbook
This Handbook contains materials for facilitators who train
staff on conflict management, negotiation and/or mediation.
It can be used both for workshops entirely dedicated to these
subjects or for courses that contain elements of the topics.

For each topic, the book contains a section on theory and

background. Some topics are covered in both parts (1. Conflict
Management and 2. The Concept of Mediation) of the book.

Note that for full workshops on these three subjects, the Hand-
book is intended to accompany the relevant Trainer guides and
Participant workbooks.

The Handbook is published in an electronic format to allow its

periodic update and addition of good practices and new guid-
ance. These updates and supplements will be posted regularly
on the GLC’s Learn & Connect platform.

NGOs and UNHCR field offices looking to replicate such prac-

tices, in ways appropriate to their local context, are encouraged
to contact GLC for further information, including updates and
lessons learned that have emerged since publication.

4
 CONTENT
Contents Perceived organisational power: ........................................................ 18

ONE
Aggressive intent: ................................................................................. 18
Time: ...................................................................................................... 19
Creativity: .............................................................................................. 19

TWO
About this Handbook.................................................................................. 4 Using conflict styles strategically............................................................ 20
Changing your own conflict style.......................................................... 20
PART ONE: CONFLICT MANAGEMENT

THREE
Coping with the style of others............................................................... 21

SECTION ONE:
SECTION TWO:
INTRODUCTION TO CONFLICT MANAGEMENT....................10
DEVELOPING CONFLICT MANAGEMENT SKILLS................... 22

FOUR
Definitions of conflict............................................................................... 11
Communication skills............................................................................... 23
Types of conflict......................................................................................... 11 Verbal ..................................................................................................... 23

ONE
The impact of timing on different types of conflict............................. 12 Paralanguage ......................................................................................... 23
Sources of conflict...................................................................................... 14 Body language ...................................................................................... 23
Rapport-building...................................................................................... 24
Conflict styles and strategies in effective management of conflict.. 15

TWO
Non-verbal communication................................................................... 25
The five conflict styles and the conflict-style graph............................. 15
Components of non-verbal communication........................................ 25
Accommodating (Ac:) ......................................................................... 16
Observing and understanding non-verbal communication............... 26

THREE
Avoiding (Av:) ...................................................................................... 16
Active listening......................................................................................... 27
Competing (Cp:) .................................................................................. 16
Barriers to active listening....................................................................... 27
Compromising (Cs:) ............................................................................ 16
Active listening elements......................................................................... 28

FOUR
Collaborating (Cl:) ............................................................................... 16
Silence as a communication skill............................................................ 28
Perception of the conflict styles.............................................................. 16
Reflecting, paraphrasing, reframing and summarizing...................... 29
Conflict style preference indicator......................................................... 17

FIVE
Questioning............................................................................................... 29
Factors in conflict style choice................................................................ 18
The range of factors .............................................................................. 18 Managing emotion................................................................... 31
Assertiveness/Cooperativeness: ......................................................... 18 Handling high emotion........................................................................... 33

SIX
Importance of issue/relationship: ....................................................... 18 Using emotional competence................................................................. 34

5
 CONTENT
Process skills............................................................................................... 37 SECTION FOUR: TEAMS AND CONFLICT................................. 54
A Process for having effective difficult conversations......................... 37

ONE
Team............................................................................................................. 55
Purpose in difficult conversations.......................................................... 37 What is a team?......................................................................................... 55
Bad news conversation............................................................................ 38 Teams vs. groups .................................................................................. 55

TWO
Checklist for preparation for a difficult conversation......................... 38 Types of teams ...................................................................................... 55
Organisational commitment .............................................................. 55
SECTION THREE: Developing and maintaining an effective team .................................. 56

THREE
NEGOTIATING THROUGH WORKPLACE CONFLICT.............40
Criteria for an effective team .............................................................. 56
The Continuum of approaches to negotiation............................. 41 Teamwork is not a panacea ................................................................. 56
Claiming value ...................................................................................... 42 Team roles................................................................................................. 57

FOUR
Creating value ....................................................................................... 43 Conflict within teams.............................................................................. 58
Integrative bargaining .......................................................................... 44 Styles of team members ....................................................................... 58
Benefits of integrative bargaining ...................................................... 44 Trust................................................................................................. 59

ONE
Sources of value .................................................................................... 44 Three categories of people in relation to trust: ................................. 60
Differences between the parties ......................................................... 44 Some ideas about how to build trust ................................................. 60

TWO
Non-competitive similarities .............................................................. 45 Factors that enable “Swift Trust”..................................................... 61
Exercise .................................................................................................. 45 In virtual communications with the absence of F-to-F contact .... 62
Economies of scale ............................................................................... 46 Swift trust baseline ............................................................................... 62

THREE
Reducing strategic opportunism ........................................................ 46 Building trust in a relationship............................................................... 64
Differentiating interests and positions .............................................. 47 Personality predispositions ................................................................. 65
Persuasion and influence.......................................................................... 48 Psychological orientation .................................................................... 65

FOUR
Reciprocity ............................................................................................ 48 Reputations and stereotypes ............................................................... 65
Commitment and consistency ............................................................ 49 Actual experience over time ............................................................... 66
Calculus-based and identification-based trust..................................... 67

FIVE
Social proof ........................................................................................... 49
Liking ..................................................................................................... 50 Illustrative examples ............................................................................ 68
Authority ............................................................................................... 51 Implications of this revised view of trust .......................................... 68

SIX
Scarcity .................................................................................................. 53 Sixteen relationship types based on dominant trust
and distrust elements............................................................................... 69

6
 CONTENT
PART TWO: THE CONCEPT OF MEDIATION
Opening phase of mediation................................................................... 83

ONE
SECTION ONE: AN OVERVIEW OF MEDIATION..................... 70 Meeting the parties .............................................................................. 83
Initial private meetings ........................................................................ 83
Introduction................................................................................................ 71

TWO
The first joint meeting ......................................................................... 84
Definition of mediation........................................................................... 71
Mediation is not ....................................................................................... 72 Mediator’s opening.................................................................................... 84
Setting the tone for the mediation ..................................................... 85
Essential foundations for mediation...................................................... 74

THREE
Establishing the mediator’s authority and role ................................. 85
The cornerstones of mediation ........................................................... 74
Emphasising the ground rules – the principles ................................ 85
Confidentiality ...................................................................................... 74
Outlining the day – the process .......................................................... 86

FOUR
Ownership by the parties .................................................................... 75
Parties’ opening statements ................................................................. 86
Neutrality and impartiality ................................................................. 76
Avoiding assumptions ......................................................................... 77 Exploration phase of mediation.............................................................. 87

ONE
Using joint and private meetings ....................................................... 89
Respect, empathy and genuineness........................................................ 77
How to explore in private session ...................................................... 90
Respect ................................................................................................... 77
Ways of checking what is confidential ............................................... 91
Empathy ................................................................................................. 78

TWO
Genuineness .......................................................................................... 79 Problem solving phase of mediation...................................................... 91
Stages of the problem solving phase .................................................. 92
SECTION TWO: Use of private and joint meetings ....................................................... 92

THREE
A PROCESS FRAMEWORK FOR MEDIATION...........................80 Some potential problems and how to avoid them ........................... 94
A process with five phases........................................................................ 81 Concluding phase of mediation.............................................................. 95

FOUR
Preliminary contact and preparation ................................................ 81 Settlement terms ................................................................................... 95
Preparation phase of mediation.............................................................. 81 Practical and workable solutions ........................................................ 96
Preparation phase of mediation ......................................................... 81 The purpose of the settlement agreement ......................................... 96

FIVE
Initial contact ........................................................................................ 82 Contents of the settlement agreement ............................................... 96
The mediation agreement ................................................................... 82 Drafting the settlement agreement .................................................... 97
Briefing and helping parties to prepare ............................................. 82 Litigation costs and funding ............................................................... 98

SIX
Documents ............................................................................................ 83 Where settlement is not reached ........................................................ 98

7
 CONTENT
SECTION THREE: SECTION FOUR: COMMUNICATION SKILLS
THE ROLE OF THE MEDIATOR AND OTHERS........................ 100 FOR EFFECTIVE MEDIATION...................................................... 109

ONE
The mediator as coach............................................................................. 101 The importance of communication skills in mediation ................ 110
Coaching and modelling ................................................................... 101 Rapport Building ................................................................................ 110

TWO
Preparation phase ............................................................................... 101 Use of silence and minimal verbal prompts ................................... 111
Opening phase .................................................................................... 101 Reflecting, paraphrasing, reframing and summarising................... 111
Exploration phase ............................................................................... 102 Reflecting ............................................................................................. 111

THREE
Problem solving phase ....................................................................... 102 Paraphrasing ....................................................................................... 112
Concluding phase ............................................................................... 102 Reframing ............................................................................................ 113
After the mediation ............................................................................ 103 Summarising ....................................................................................... 113

FOUR
Skills and qualities of a good coach ................................................. 103 Use of questions........................................................................................ 114
The mediator’s style and approach....................................................... 103 Challenging............................................................................................... 117

ONE
Facilitative or evaluative - or both? .................................................. 103
Other mediator skills and techniques.................................................. 119
Mediator impartiality ........................................................................ 103
Working with emotions ..................................................................... 119
The process is flexible ........................................................................ 105

TWO
The parties ........................................................................................... 119
The parties decide the outcome ........................................................ 105
The lawyers, experts and advisers .................................................... 121
The mediator has an active and proactive role ............................... 105
The mediator ....................................................................................... 121
Handling multiple issues ................................................................... 106

THREE
Overcoming emotional deadlock ..................................................... 106 SECTION FIVE:
Re-examining options for co-operative solutions .......................... 106 USING NEGOTIATION SKILLS AS A MEDIATOR....................123

FOUR
Offering reality testing ....................................................................... 106
Aspects of negotiation............................................................................. 124
Reviewing the alternatives to reaching agreement ........................ 107
Claiming and creating value ............................................................. 125
Other processes can sometimes
Negotiating tactics and strategies ..................................................... 125
work well alongside mediation ......................................................... 107

FIVE
Focusing on interests not rights ....................................................... 125
Requests for an evaluation or recommendation ............................ 108
Where parties want to be, not where they are ................................ 126
Problem-solving techniques ............................................................. 126

SIX
Relationships and group dynamics .................................................. 127

8
 CONTENT
Using information when appropriate .............................................. 127
Value differentials ............................................................................... 128

ONE
Bottom lines and magic numbers .................................................... 128
Global sums and numerical boundaries ......................................... 128

TWO
Helping parties to avoid losing face ................................................. 129
The mediator as negotiation coach .................................................. 129
The hurdle of the first offer ............................................................... 130

THREE
Managing subsequent offers
and conveying information tactically ............................................. 132
Breaking apparent deadlock ............................................................. 132

FOUR
Developing new perspectives ........................................................... 134
Reality testing ..................................................................................... 135
Drawing together a settlement package and doing the deal ......... 136

ONE
SECTION SIX:
COMPETENCE, GOOD PRACTICE AND ETHICS..................... 137

TWO
Some dos and don’ts for effective mediation...................................... 138
Some dos: ............................................................................................ 138

THREE
Some don’ts ......................................................................................... 139
Ethical and legal responsibilities for mediators................................ 140
Integrity and honesty ......................................................................... 140

FOUR
Impartiality, neutrality and avoiding conflict of interest .............. 141
Dealing with power imbalance ......................................................... 142
Criminal activity and threats to safety ............................................ 142

FIVE
Compellability of mediators as witnesses ....................................... 143
Mediator negligence and breach of contract .................................. 143
Withdrawing from a mediation ....................................................... 143

SIX
9
 CONTENT
PART ONE: SECTION ONE:

ONE
CONFLICT INTRODUCTION TO

TWO
MANAGEMENT CONFLICT MANAGEMENT

THREE
FOUR
Definitions of conflict.......................................................................................................................................................................11
Types of conflict...................................................................................................................................................................................11

ONE
The impact of timing on different types of conflict................................................................................................12
Sources of conflict.............................................................................................................................................................................14

TWO
Conflict styles and strategies in effective management of conflict.............................................................15
The five conflict styles and the conflict-style graph....................................................................................................................15
Perception of the conflict styles.........................................................................................................................................................16

THREE
Conflict style preference indicator....................................................................................................................................................17
Factors in conflict style choice............................................................................................................................................................18
Using conflict styles strategically......................................................................................................................................................20

FOUR
Changing your own conflict style......................................................................................................................................................20
Coping with the style of others..........................................................................................................................................................21

FIVE
SIX
10
 CONTENT
Definitions of conflict Types of conflict

ONE
Conflict is:1 Conflict can be categorized into three types:2

• An actual or perceived disagreement, • Task - What should be done?

TWO
dispute, difficulty or difference
• Process - How should we go about doing the task?
• Something that causes disharmony
• Relationship - Who should do what?

THREE
between individuals or in groups.
How should we interact?
Conflict can be:

FOUR
• Constructive TASK-WHAT
Where the outcome/process is perceived as better Awareness of differences in viewpoints and opinions
overall than in the previous situation. Following pertaining to a group task or context

ONE
constructive conflict, parties are satisfied and feel they (similar to cognitive conflict)
have gained as a result of resolving the conflict.
• Destructive PROCESS-HOW

TWO
Where the process and/or the outcome damages Awareness of controversies about aspects
relationships (e.g. seeks to satisfy the interests of one party of how task accomplishment will proceed
at the expense of the others). Destructive conflict results (duty and resource delegation)

THREE
in overall sense of loss and ill will between parties.

RELATIONSHIP-WHO

FOUR
Awareness of interpersonal incompatibilities
(tension and friction)

FIVE
1 CEDR definition. 2 Jehn, K. and Mannix, E. The dynamic nature of conflict: A longitudinal study of

SIX
group conflict, Academy of Management Journal, 2000, Vol 44, 238-251.

11
 CONTENT
Conflict can occur when: The impact of timing on

ONE
1 A person is required to engage in an activity that is different types of conflict
inconsistent with his or her needs or interests

TWO
2 A person behaves in a way that is incompatible with Individuals, teams and work groups are likely to experience
another person exercising his or her preference different types of conflict within the workplace. Depending on
the timing and level of conflict, the effect on productivity and
3 A person wants some mutually desirable

THREE
morale can be positive or negative; conflict is often assumed
resource that is in short supply, so that the to be always detrimental to productivity, however this is not
needs of everyone may not be satisfied necessarily the case. The interrelation between the timing and
type of conflict will impact whether its effect is constructive or

FOUR
4 A person possesses attitudes, values, skills and
goals that are salient in directing his or her destructive.
behaviour but are perceived to be antagonistic to the
attitudes, values skills and goals held by others

ONE
5 Two people or groups who must undertake
some joint action have partially mutually TASK CONFLICT OVER TIME

TWO
exclusive behavioural preferences • In high performing groups work will be
6 Two people or groups wish to act independently agreed, accepted and understood early on
in the performance of functions or activities • Responsibilities and deadlines will then be set

THREE
which require mutually coordinated action • Individuals who are allowed a voice during these early
for a positive result (Rahim 2002).3 stages will often be more committed to the process
• High performing groups will have higher task

FOUR
conflict during the midpoint of the process
• Groups need to engage in task conflict but
at some point to reach consensus

FIVE
3 Rahim, M. A. Toward a theory of managing organizational conflict. The Inter-

SIX
national Journal of Conflict Management, 2002. Vol. 13, 206-235.

12
 CONTENT
Jehn and Chatman in their study of proportional and percep- A dilemma for teams, or any group of people working together,

ONE
tual conflict composition came to some interesting conclu- is that what feels “comfortable” is not necessarily that which
sions, including: will provide the most effective outcomes. Furthermore, as
team members’ perceptions of conflict levels may vary, conflict

TWO
“Team conflict composition characterized by low levels about conflict can become a major issue.
of all three types of conflict…increases member commit-
ment, cohesiveness and satisfaction, but these profiles Jehn and Chatman conclude that:

THREE
are not positively correlated with performance. This im-
plies that a complete absence of all types of conflict is “…certain levels and types of conflict might be effective
not beneficial to group and individual performance.”4 in a team as long as members agree about how much
conflict actually exists, and as long as the conflict is some-

FOUR
what balanced […] among all members of the team.”5

ONE
PROCESS CONFLICT OVER TIME
• Enhances performance but can

TWO
interfere with consensus
• If conflict appears too early it may RELATIONSHIP CONFLICT OVER TIME
interfere with procedural issues and if it

THREE
• It is unlikely that relationship conflict
happens too late may reduce consensus is beneficial at any time
• There will be moderately high levels of process
conflict at the early stages of development • High performing groups will have low levels of

FOUR
and the same will occur as a deadline relationship conflict throughout the process
approaches – lower levels mid-phase
• New groups evolve – the classic process pattern

FIVE
is forming, storming, norming and performing

4 Jehn, K.A. and Chatman, J.A. The influence of proportional and perceptual con- 5 id. p. 70.

SIX
flict composition on team performance. The International Journal of Conflict
Management, 2000. Vol. 11, No. 1, p. 69.

13
 CONTENT
Relationship conflict usually has a negative impact on group Sources of conflict

ONE
performance and member attitudes, whilst task conflict often
Conflict can have multiple sources; some of these can be
has a positive impact on member attitudes and group perfor-
classified as:8
mance. Therefore, team members may appreciate task conflict

TWO
if it is not associated with relationship or process conflict. 1 Data conflicts – misunderstandings, lack of
Managing conflict constructively may require that the relative information, assumptions, and differences in
levels of different types of conflict are adjusted. For instance, perspective, misinformation and ambiguities

THREE
rather than attempting to reduce the amount of process con-
 tructural conflicts – ineffectual processes,
2 S
flict, managers might instead increase task conflict.6
unhelpful time constraints, inappropriate structure,
organisational structure, social structures and systems
Task conflict seems specifically to have a positive impact on

FOUR
the quality of decisions made about what is done and on the 3 Relationship conflicts – stereotypes, distorted
emotional acceptance of group decisions. However, if it persists perceptions, unmet expectations or needs,
for too long it will reduce team commitment. Unfortunately, fear, misuse of power, and history

ONE
task and relationship conflict seem to be linked; the higher the
level of task conflict the higher the level of relationship conflict. 4 Interest conflicts – perceived or actual incompatibility
The key question, therefore, is how relationship conflict can be of needs and interests, differences in preferences, style,
ways of doing things and differences in emotional needs

TWO
reduced, whilst maintaining task conflict. A key determiner is
the level of trust between team members.7 It is important for 5 Value conflicts – opposing beliefs, values,
groups and organisations to develop a culture of acceptance of philosophies and worldviews.

THREE
constructive conflict, even to establish a culture where process
and relationship conflict are seen as integral to effective task
performance. Data

FOUR
Relationship Interest

FIVE
Conflict
6 id. p. 69.
7 Simons , T.L. and Peterson Randall S. Task conflict and relationship conflict in
top management teams: The pivotal role of intragroup trust. Journal of Applied

SIX
Psychology, 2000. Vol 85, No.1 p. 102.
Value Structural
8 Moore, C. The Mediation Process. Jossey-Bass, 1987.

14
 CONTENT
Conflict styles and strategies in The five conflict styles and

ONE
effective management of conflict the conflict-style graph
Thomas and Kilmann developed the idea that there are five dif-

TWO
It is possible, through self-reflection to understand better one’s ferent modes for handling conflict; these can be plotted on an
own and others’ behaviour, and to recognise personal strengths XY axis. The Y axis represents a range in level of “assertiveness”
and areas for individual or group development. Preference in- and the X axis a range in level of “cooperativeness”.

THREE
dicators, such as the Thomas-Kilmann conflict style preference
indicator, can assist by increasing self-awareness and thereby In the following descriptions, the word assertive means ‘the
enhancing effectiveness. Finally, further insights can be gained extent to which the individual attempts to satisfy her/his own
by considering a range of different factors that impact the level concerns’ and co-operative means ‘the extent to which the

FOUR
and effect of conflict. individual attempts to satisfy the other person’s concerns’.

ONE
High

Competing Collaborating

TWO
ASSERTIVENESS

THREE
Compromising

FOUR
FIVE
Avoiding Accommodating
Low

SIX
Low COOPERATIVENESS High
15
 CONTENT
Accommodating (Ac:) Collaborating (Cl:)

ONE
This approach is unassertive and co-operative; it is the opposite This approach is both assertive and co-operative; it is the op-
of Competing. It involves accepting the other person’s position, posite of Avoiding. Collaborating might involve exploring a sit-
either by backing off or tolerating the behaviour and neglecting uation in which the parties would otherwise be competing for

TWO
your own concerns. resources, or it might involve trying to find a creative solution
to an interpersonal problem. This approach involves exploring
Avoiding (Av:) mutual positions to try to find a solution that fully meets the

THREE
interests of both parties. It usually requires some trust and an
This approach is unassertive and uncooperative; the individual explanation of each other’s needs, and demands time, creativity
does not immediately pursue their needs or those of the other and energy.

FOUR
person. They do not tackle the conflict. Avoiding might take
the form of diplomatically sidestepping an issue, postponing an
issue until a later time or simply withdrawing from a threaten-
ing situation. Perception of the conflict styles

ONE
Competing (Cp:) Different people may perceive themselves and other people
using a particular conflict style in different ways. This will

TWO
This approach is assertive and uncooperative; an individual depend both on the context of the behaviour, and on their per-
pursues his or her own concerns at the other person’s expense. sonal beliefs and socialisation in relation to how to behave in
This involves trying to win. It is a power-orientated mode; us- conflict. So, whilst they may perceive themselves to be behav-

THREE
ing whatever power you have - economic, intellectual, physical, ing in an understanding manner if they are accommodating,
status - in order to win your own position. Competing might they may perceive it as weakness in someone else.
mean standing up for your rights or beliefs, or it might simply
Another possibility is that you or the person you are working

FOUR
mean trying to win.
with may have a strong belief that a particular style is “wrong”;
Compromising (Cs:) for instance, belief in principle that competition is wrong, may
lead to a negative view of the person using that style, irrespec-

FIVE
This approach is between assertive and co-operative, on a tive of their intention or concerns. The table below gives an
middle ground between Competing and Accommodating. overview of some of the possible different perceptions of the
This approach finds some solution that partially satisfies both different styles:

SIX
parties. Compromising might mean splitting the difference,
exchanging concessions or just seeking a quick, bland solution.

16
 CONTENT
Mode or style Possible positive perceptions Possible negative perceptions

ONE
of handling conflict of the use of this style of the use of this style

AVOID Focussed, busy Scared, distracted, disinterested

TWO
ACCOMMODATE Understanding, supportive Weak, lacking in creativity, lazy, incompetent, bullied

COMPROMISE Efficient, cooperative Quick, unprincipled, lazy, quick-fix junkie

THREE
COMPETE Strong, assertive Bully, obstinate, aggressive

COLLABORATE Creative, co-operative Over-complicated, meddling

FOUR
Conflict style preference indicator

ONE
Thomas and Kilmann went on to develop an instrument in which are much more socially desirable than others. As a result
the 1970s which uses a series of questions to give people an great care was taken to twin statements which have the same

TWO
indication of their preference and aversion to five different level of social desirability.
modes. The idea behind preference is that there is no “right” or
“wrong”. Each individual will have a preference, indifference There are three elements to consider in

THREE
or aversion, to each mode or style, depending on a range of relation to the idea of preference:
different factors.
1 Preference in relation to my own actions
There has been a good deal of discussion about the degree to For example, given a free choice, someone who has a

FOUR
which this tool can be legitimately used outside the English strong preference for “collaborating” will, given a free
speaking, predominantly Anglo-Saxon environment in which choice, choose to operate in this mode, or will default
it was developed. Apparently when it was developed in the to this mode, and find it comfortable to do so.

FIVE
USA, work was done to ensure that the margin of variability 2 Preference in relation to the behaviour of others
amongst different gender and ethnic groups was not statistical- If someone has an aversion to “competing”, they may avoid
ly significant. However, it is clear that the preference indicator using that mode, even when if might be effective, and may

SIX
compensates (20% margin of error, rather than 80% with other also dislike interacting with others who are “competing”.
methods) for the difficulties caused by some styles of conflict,
17
 CONTENT
3 Underlying beliefs and assumptions Assertiveness/Cooperativeness:
about the different styles

ONE
It is common for people to have ingrained beliefs about The original Thomas-Kilmann matrix compared levels of
the acceptability and appropriateness of the different cooperativeness and assertiveness.
styles. This can impact both on their willingness to

TWO
use them and their willingness to admit to the validity
or use of particular styles by themselves or others. Importance of issue/relationship:

THREE
Completing and scoring the questionnaire will increase The more important the issue, the further up the Y axis you are
self-awareness and enhance your ability to use a fuller range of likely to move. The more important the relationship is with the
modes and to adapt effectively to working with others. other person, the further along the X axis you are likely to move.

FOUR
Factors in conflict style choice Perceived organisational power:

ONE
The preference indicator provides information for self-reflec- N.B. “perceived”. This is not about any objective measurement
tion. In the 1990s the Thomas-Kilmann model was developed of organisational power; it describes how the person adopting

TWO
further by a number of different researchers identifying a or choosing a style perceives the other person. If they perceive
variety of different factors that influence the adoption of the themselves as more powerful organisationally then they are
different styles of handling conflict. The factors can be mapped more likely to move towards competing. If they perceive the

THREE
onto the same XY axis graph to give a fuller picture of the sig- other person as powerful then they are more likely to move
nificance of the range of modes in responding to conflict. towards accommodating. A perceived “equal match” may
encourage attempts at collaboration or compromise.

FOUR
The range of factors
Aggressive intent:
This expanded graph gives a range of different factors, which

FIVE
may be consciously or unconsciously contributing to your In situations where the person choosing a style perceives the
choice of conflict style and to the choices made by those with other person as having aggressive intent they are more likely
whom you interact. Being aware of the ingredients that have an to move towards competing, whereas if they perceive a lack of

SIX
impact on situations of conflict can simplify, make more strate- aggressive intent by the other, they are more likely to choose to
gic and enhance decisions about how to handle a situation. accommodate.
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 CONTENT
Time: Creativity:

ONE
Time available does not fit the XY axis as clearly as the other The use of creativity to generate ideas is a key factor in moving
factors, but can be represented by a diagonal arrow across the from avoiding to compromise to collaborating. This is of par-

TWO
graph. In different situations where time is extremely limited, ticular importance when making a shift from compromising to
competition, accommodating on and avoiding are all likely collaborating.
styles. With more time available, compromise is more likely

THREE
and with ample time available there is an increased likelihood
of collaboration.

FOUR
Time
Perceived organisational power of Self

Compete Collaborate

ONE
High aggressive
intent of other

TWO
Compromise

THREE
Importance of Issue
Assertiveness

FOUR
Avoid Accommodate

FIVE
Cooperativeness Low aggressive

SIX
Time and Creativity intent of other
Importance of Relationship
19
 CONTENT
Using conflict styles strategically Changing your own conflict style

ONE
The Callanan and Perri9 work raises a range of factors in The first tool is an at-a-glance table of situations in which it
relation to the choice of style. However, when in a real life sit- might be appropriate to use each style, and situations in which

TWO
uation, you are going to be faced with all these factors and the a particular style might not be appropriate:
style of the person with whom you are involved, in a complex
This table takes into account all six factors. However,
mix. For most people the weighing of the different factors
it does not take the following into account:

THREE
happens completely subconsciously or intuitively.
• the fact that a reflex action may not be based on a
1 Revisit your reflex response
rational approach to identifying the appropriate style
2 Recognise the style of the other person

FOUR
• one’s own internal resistance to using a particular style
 nalyse the other’s situation in relation
3 A
• one’s own reluctance to cope with the other person’s style.
to the five criteria (above)
 espond in the light of all the first four factors
4 R

ONE
9 Callanan, G. and Perri, D. Teaching Conflict management Using a Scenario
– explore and test, decide and/or negotiate. Based Approach. Journal of Education for Business, 2006. 81(3).

TWO
Use it Avoid it

AVOID The damage done by confrontation would outweigh the benefits of If quick action is required, or if the issue is of major importance and
any resolution achieved. there is limited time for a decision.

THREE
ACCOMMODATE Giving up something in the hope of getting something in return. If the issue is of major importance to you, particularly if you believe
Other aspects are more important; position weak, or risks low and that the other person is wrong.
can afford to give in –financially, emotionally, regarding status.

FOUR
COMPROMISE Consensus cannot be reached. Temporary solution required. Avoids If the issue is complex, and would be best dealt with using a problem-
protracted conflict. solving approach.

FIVE
COMPETE Dealing with routine matters. Implementation of an unpopular If the issue is complex and there is sufficient time to make a decision
course of action. using a problem solving approach. If the parties have equal power
competition will often lead to deadlock.

COLLABORATE Complex problems, long-range planning, strategies/issues relating If a quick decision is required, if it is a simple task, if others are

SIX
to organisational objectives and policies. unconcerned about the outcome or relatively less involved.

20
 CONTENT
Coping with the style of others

ONE
Often someone else will initiate a communication adopting a
particular strategy or mode, which may or may not be your

TWO
preference in terms of how to interact. Initially you will have
to work with what you are presented with. The following table
provides an at-a-glance reminder of what you might try to do

THREE
and what you might explore in order to improve the situation.

This table draws on the same six factors, described in the section
on “Factors in conflict style choice”. With an increasing level of

FOUR
comfort with these different factors, you can adapt your approach
and develop a wider range of more complex and effective strategies.

ONE
TWO
Other’s mode Try to… Explore…

AVOID be persistent but gentle when would be a good time to address this?

THREE
ACCOMMODATE demonstrate that you trust the other person to say their needs and concerns
what is best for them

COMPROMISE explain concerns which need resolving before their motives and time-constraints

FOUR
agreement

COMPETE be assertive their motives, and give your own

choose words carefully

FIVE
COLLABORATE acknowledge their motives their time-frame, and clarify your own
set clear boundaries

SIX
21
 CONTENT
PART ONE: SECTION TWO:

ONE
CONFLICT DEVELOPING CONFLICT

TWO
MANAGEMENT MANAGEMENT SKILLS

THREE
Communication skills.......................................................................................................................................................................23
Rapport-building.................................................................................................................................................................................... 24
Non-verbal communication................................................................................................................................................................ 25

FOUR
Components of non-verbal communication.................................................................................................................................. 25
Observing and understanding non-verbal communication.......................................................................................................26
Active listening........................................................................................................................................................................................ 27

ONE
Barriers to active listening................................................................................................................................................................... 27
Active listening elements.....................................................................................................................................................................28

TWO
Silence as a communication skill.......................................................................................................................................................28
Reflecting, paraphrasing, reframing and summarizing................................................................................................................29
Questioning..............................................................................................................................................................................................29

THREE
Managing emotion............................................................................................................................................................................. 31
Handling high emotion..........................................................................................................................................................................33

FOUR
Using emotional competence............................................................................................................................................................. 34
Process skills...........................................................................................................................................................................................37
A Process for having effective difficult conversations.................................................................................................................37

FIVE
Purpose in difficult conversations......................................................................................................................................................37
Bad news conversation......................................................................................................................................................................... 38
Checklist for preparation for a difficult conversation................................................................................................................ 38

SIX
22
 CONTENT
Communication skills 10

ONE
Communication is essential in the effective
management of conflict, and each of us, at

TWO
least intuitively, will draw on core capabilities.

There are three ways in which meaning is

THREE
communicated;11 words, paralanguage (use of
voice) and body language. These contribute in
different proportions to the degree to which
people will make decisions about how much

FOUR
they like the person on first meeting, and
therefore to what extent they are willing to be
influenced by the person talking.

ONE
Verbal

TWO
7% through the words used in an interaction

THREE
Paralanguage

38% through the pitch, tone, pace, of the voice

FOUR
Body language

55% through gestures, facial expressions, pos-

FIVE
ture, personal space and appearance

10 Communication skills are discussed also in Part 2,

SIX
Section 4, page 111.
11 Mehrabian, Albert

23
 CONTENT
Rapport-building

ONE
Developing rapport with others enables them to feel that you The following are aspects of a person’s behaviour
understand them, and gives you more information and better that you may be able to match:

TWO
understanding.
• Body posture - head, upper and lower body;
The depth of rapport that you achieve has an effect on: position of arms and legs; angle of body;
relaxed or rigid; sitting or standing

THREE
• The quality of information that people give you
• Gestures - facial expressions; use of
• The degree of change others believe is possible with you
hands and arms; eye contact
• The degree to which you can accurately

FOUR
assess the other’s position. • Language - particular words, phrases and sentence structure
• Voice - tone, volume, pitch, pace and tempo
Some rapport arises naturally, some you have to create. Build-

ONE
ing rapport is a skill that gives you a greater ability to develop • Breathing - location, rate and depth.
rapport quickly with a wide variety of people. The skill involves
accurate observation, openness and flexibility of behaviour. Mismatching - behaving in ways which do not reflect the

TWO
behaviours of the other person - inhibits the building of confi-
Matching is a way of establishing rapport. It is the process dence and trust.
where you adjust your behaviour to be more similar to - and

THREE
thus in tune with - the behaviour of others. That does not mean However, once rapport exists, deliberate and careful mismatch-
being a ‘clone’ or a mimic, but rather being in harmony. By ing can help change a person’s state; to increase energy, to
matching, you are making tacit ‘agreements’ which build trust relax, to move from closed to open behaviours. The negotiator
and increase receptiveness and responsiveness. could use this technique to enable people to participate more

FOUR
fully and creatively, or to bring a discussion on a particular
When developing the skill of matching, it is useful to con- topic to an end without causing offence.
centrate on matching specific behaviours, until you are able

FIVE
to match them automatically, and until matching becomes The need to create or recreate rapport may occur at any time in
something that you can do - or not do - at will. negotiation; a feeling of discomfort may arise, and deliberately
matching the other person, and working on rapport, can help

SIX
to retrieve a productive and co-operative atmosphere.

24
 CONTENT
Non-verbal communication Components of non-verbal communication

ONE
Over half of human communication is non-verbal. This means There are three components of non-verbal communication:
it is impossible not to communicate. Without saying a word,
we reveal our feelings and attitudes. For instance, a smile  ody movements - facial expressions, gestures, posture.
1 B

TWO
usually says, ‘I’m happy’, and looking at a watch may say, ‘I’m These are largely learned from parents and other
impatient, get on with it’. Even when we try to say nothing, our significant people in our lives. Some are universal,
closed stance and refusal to speak means, ‘I don’t want to talk but others are culturally or ethnically specific, which

THREE
about it. Leave me alone’. Despite our sophisticated language, can lead to confusion. For instance, eye contact
we still communicate strongly without words; this is a process in western European culture is a sign of respect,
which deserves understanding. whereas in Puerto Rico it denotes the opposite. As

FOUR
individuals we each have idiosyncratic habits; tuning
For the most part, non-verbal communication reveals emo- into the other person’s unique way of expressing
tions and feelings rather than giving information about the feelings and attitudes can help communication.
external world. It is easy to lie using words, but other aspects of

ONE
communication make it less easy to deceive since, for exam-  ocalisations - pitch, resonance, articulation, tempo
2 V
ple, facial expressions are directly controlled by the emotional and pace. No matter what we say, the sound of how we
centres of the brain and are thus hard to simulate. When you say it reveals a great deal about what we feel and think.

TWO
read the expression on another’s face, you are more likely to 3 Spatial relationships - the distance between yourself and
assess the true emotion being felt than when you merely listen the other person. There seem to be four different zones that
to what is being said. For instance, if you ask someone ‘What’s people unconsciously use as they interact with others:

THREE
wrong?’ and they shrug their shoulders, frown, turn away from
- Intimate distance: less than one arm’s length
you and mutter ‘Oh...nothing, I’m fine’, you are unlikely to
believe the words. You believe the dejected body language. - Personal distance: one arm’s length

FOUR
- Social distance: two arms’ length or more
In workplace conversations, as in other situations where you
are trying to communicate with others, awareness of and - Public distance: 3-6 metres.
understanding about non-verbal communication is crucial, Again, cultural variations can lead to misinterpretation and

FIVE
providing essential information beyond the content of what is misunderstandings. People will retreat, defend or attack if you
being said. Awareness of non-verbal communication in others enter their personal or intimate zone inappropriately. When
helps you to understand them better. Awareness of your own someone is seated and you lean over them, you enter their

SIX
non-verbal communication can make you a much more effec- intimate space in a most threatening manner and this should
tive communicator and negotiator. be avoided in negotiations.
25
 CONTENT
Observing and understanding Sometimes people in conflict will display anxiety.

ONE
non-verbal communication Signs that a person is becoming anxious include:
• rapid or tight breathing
Observation of body language provides important information.
• backward movement

TWO
An open, relaxed posture suggests that this is how the person
• tapping a hand on the leg / tapping feet
is feeling at that moment. Apparently uncomfortable shifting
• averting eyes
in their chair, combined with speech hesitations and breathing
• clenched fists

THREE
changes, suggests that the issue being dealt with is distressing or
• picking at fingers
potentially distressing. Facial behaviour is particularly signifi-
cant in revealing non-verbal information. Discrepant non-ver- As always these signs are indicators not certainties, and so they
bal behaviour is also important, where non-verbal commu- need to be read alongside other information. Additionally,

FOUR
nication does not agree with the meaning of the words which accurate observation of non-verbal communication helps you
accompany it, or where clusters of non-verbal communication to assess the impact you have on others. Are they receptive to
are not congruent with each other; for example the person who what you say? Have you created rapport?

ONE
shakes your hand with a firm grip and smiles, but refuses to
meet your eyes (where this is a cultural norm). Awareness of in- The following are guidelines only and may need to be adjusted
congruence in others can alert you to possible hidden agendas. when working cross-culturally:

TWO
Positive Inhibiting

THREE
Posture and body Relaxed; upright; well-balanced; facing person at open angle; Stiff, tense; round-shouldered; turning away from the speaker; leaning
movements encouraging nods of the head; leaning slightly forward too far forwards; crossed arms; fidgeting
Eye contact Comfortable, direct gaze; being at the same eye level Fixed stare, evasive, staring at the ground; looking down from a higher

FOUR
position or up from a lower position
Gestures Open, relaxed and confident; congruent with what is being said Pointing, waving arms, clenched fists; nervous fiddling; hand over mouth
Facial expressions Pleasant; jaw loose; tongue relaxed; open smile when appropriate; Tense jaw, clenched teeth; frown; tight lips, nervous smile, forced smile;

FIVE
congruent with spoken words incongruent with what is being said
Voice Low and medium pitch; relaxed; steady; clear articulation; warm; High pitch; loud; strident; slurred words; cold; fast; strained; hesitant;
appropriate pauses and emphases monotonous
Spatial Relationships Respect for the other person’s space Too close or too far

SIX
26
 CONTENT
As you become aware of your own non-verbal cues they will relationships where communication has broken down, that the

ONE
provide a wealth of information about your own unconscious other no longer listens. In effective conversations, the empha-
feelings and attitudes. In a difficult negotiation you might no- sis must be on the perceptions, needs and expectations of the
tice, for example, your arms folded and fingers wrapped tightly other party and therefore on listening to them. In this way, you

TWO
round your biceps; you realise you are nervous and defensive. not only gain valuable information and communicate interest
With this increased awareness, you can take steps to reduce in what is being said, but also you convey respect and therefore
your tension, and free the atmosphere for communication and encourage others to talk more openly.

THREE
negotiation.

Barriers to active listening

Active listening

FOUR
There are many things which can get in the
way of attentive, active listening:
The capacity to be a good and understanding listener is the
most fundamental communication skill of all. • Distractions – external: noise, discomfort, interruptions;

ONE
internal: tiredness, boredom, preoccupation with own
There is a difference between hearing and listening. Hearing problems, anxiety about being able to cope, over-eagerness
involves the capacity to be aware of and to receive sound; to help, impatience, attraction to or dislike of the people

TWO
listening involves not only receiving sounds but understanding
their meaning. Listening is an active process which entails • Comparing – ‘this is nothing compared
hearing words, being sensitive to vocal clues, to tone and pitch to what I’ve had to deal with’

THREE
and inflection, observing movement, taking into account the • Mind-reading – concentrating too much
context of communications, and communicating this under- on hidden meanings and not listening to
standing. In this way, people not only know they have been what the person is actually saying
heard but can also hear their own messages more clearly.

FOUR
• Rehearsing – preparing what you are going to say
It is also important to distinguish between listening in a social next rather than listening fully to the other person
context and listening in the context of managing conflict. So- • Filtering – listening to some things and not others;

FIVE
cial listening takes place within a conversation which is geared listening only to what you want to hear or things
towards meeting the needs of both participants. Social conver- which fit with your own values and beliefs
sations have sometimes been described as ‘two people, both of

SIX
whom are taking turns to exercise their egos’. Though hearing • Pre-judging – pre-judging someone as
may take place, listening may not. It is a frequent complaint, in foolish, unqualified or unhelpful

27
 CONTENT
• Blaming – assigning responsibility for what has happened • Appropriate use of silence and minimal verbal prompts

ONE
• Dreaming – half-listening and wandering off along • Reflection of feelings
a chain of private associations which have been • Paraphrasing and summarising
triggered by something the person has said; more • Careful use of questions.

TWO
likely to happen if you are bored or anxious
The letters SOLER are a mnemonic of the non-verbal com-
• Hiding behind professional facade – trying to make munication which indicates to the speaker that the listener is
yourself seem like an expert, but in fact being defensive

THREE
giving full attention:
• Placating – trying to be nice, pleasant, supportive; S F ace individuals with Shoulders square –
wanting people to like you, so agreeing with everything shows full concentration on the speaker
rather than examining what is being said

FOUR
 dopt an Open posture – shows you are open
O A
• Reassuring – trying to make people feel better, yet not to hear what the person wants to say
really acknowledging their true feelings; ‘it will be all

ONE
right’, rather than ‘you’re really worried about that?’ L Sometimes Lean gently towards the
individual– a sign of being involved
• Disagreeing – immediately countering with an alternative
view so that the other person does not feel heard E Maintain appropriate Eye contact – shows

TWO
continuing attention and involvement
• Being right – being closed to the possibility
that you might be wrong. R Be relatively Relaxed – you can be relaxed
because your attention is genuine.

THREE
Most people assume that they listen well, but listening with
undivided attention and without interrupting is not easy.
Silence as a communication skill

FOUR
Active listening elements An effective communicator needs not only to be able to cope
with pauses and silences but to use their potential for trigger-

FIVE
The process of active listening requires a range of skills: ing progress. Invariably there is a temptation, even a need, to
fill the space. It takes real discipline and courage to use silence
• Observing and understanding non-verbal communication
well. Time and again individuals have found that the most

SIX
• Awareness and use of own non-verbal signals telling piece of information has been received after a period of
silence.
28
 CONTENT
Silence can be helpful to the speaker because it: • reframing is rewording a statement made
by another for positive effect

ONE
• Gives time for the speaker to think and develop
what it is the speaker is struggling to say • summarising provides an overview of the main
thoughts, feelings, themes and issues expressed.
• Allows the speaker to dictate the pace of the conversation

TWO
• Enables the speaker to choose whether or not to go on.
Questioning

THREE
Silence can be helpful to the listener because it:
Appropriate use of questions is essential in any conversation.
• Gives an opportunity to observe the speaker
However, questioning is a tool that must be used sensitively,
and pick up non-verbal clues
and different forms of questions will be appropriate at different

FOUR
• Places the initiative on the speaker. times. Timing and context are therefore very important.

Allowing silence can be very useful tactic to get the speaker to Careful framing of a question is important, for questions can:

ONE
reveal important information.
• Encourage the other person to talk
• Show empathy

TWO
Reflecting, paraphrasing,
reframing and summarizing But questions can also:
• indicate judgement, criticism

THREE
Reflecting, paraphrasing, reframing and summarising are skills
that consolidate and draw together, and demonstrate under- • seem prying, or even irrelevant
standing of what has been said, establishing a foundation for • become an interrogation.
moving forward.

FOUR
Some types of question are unhelpful and should be avoided.
The main distinction between these skills are: Such as:

FIVE
• reflecting is putting into words the impact of a situation Multiple questions where the questioner poses more than one
on the other, including the underlying emotions question at a time and does not allow enough room for thought.
• paraphrasing is stating in a few of your own words They can lead to confusion about which question to answer or,

SIX
the content of what someone has just said for the questioner, about which answer fits which question.

29
 CONTENT
Types of question which can be helpful include: REMEMBER – WHATEVER QUESTION YOU ASK, LISTEN

ONE
AND RESPOND TO THE ANSWER.
• Open questions which are broad invitations to talk. Good
open questions allow others to control the direction Key skills for effective communication:
of the discussion, to present views and ideas from

TWO
their own perspective and to highlight concerns. • Building rapport
• Non-verbal cues and clues
• Closed questions seek very specific and precise

THREE
information or facts. The response will be either ‘Yes’ • Active listening
or ‘No’ or a very short response, some identification • Use of silence
of fact such as time, place, number, person. They • Appropriate questioning

FOUR
are helpful for clarifying particular information.

Different forms of questions which serve

particular purposes include:

ONE
• probing asks an individual to develop an answer further
• asking for examples encourages the person to be specific

TWO
• focusing helps to keep the discussion
focused on the important issues

THREE
• clarification enables you to check that you
have understood what has been said
• prefacing the question with a paraphrase or reflection

FOUR
allows you to acknowledge and check what has just
been said before moving on to new ground
• hypothetical questions allow parties to explore a situation

FIVE
without having to commit themselves at this stage
• rephrasing the question when your first

SIX
question has not been understood.

30
 CONTENT
Managing emotion12 When such actions accumulate, a general sense of dissatis-

ONE
faction can arise, and create a stumbling block to progress in
Emotion plays an important part in the effective management effective management of the conflict.
of conflict. Neurobiology shows that emotion is integral to

TWO
human decision-making. Thus, although strong emotions may help individuals
reach goals in limited circumstances, the risks
On the one hand, emotion in dealing with preclude their use as a general strategy:

THREE
conflict can have a negative effect on:
• even in cases where it is unlikely that the parties
• physiology - when angry or frustrated, will have an on-going relationship, creating a good
our heart rate can increase relationship can serve many useful purposes, including

FOUR
encouraging information/interest exchange
• cognition - we tend to have negative or more
limited thoughts when we are angry • positive emotions also encourage problem solving,
creative brainstorming and empathy for different

ONE
• action - we tend to act in certain ways
perspectives - studies show that it is more likely that
when we are angry or frustrated
people experiencing positive emotions will create
• feelings - we feel anxious, for example, value i.e. solutions that benefit all parties13

TWO
when we are angry or upset.
• negative emotions can stand in the way of clear
thinking and lead to errors in judgement. They can

THREE
Negative emotion, when dealing with also lead to retaliatory behaviour – a vicious circle.
conflict, is more likely when we:
• criticise another person

FOUR
• express contempt for another person
• counterattack
• stonewall

FIVE
12 For further information, refer to Shapiro, D. Enemies, allies and emotions – the 13 Allred, K. Relationship dynamics in disputes – replacing contention with
power of positive emotions in negotiation. In Moffitt, Michael L. and Bordone, co-operation In Moffitt, Michael L. and Bordone, Robert C. The Handbook of

SIX
Robert C. The Handbook of Dispute Resolution Harvard Program on Nego- Dispute Resolution. Harvard Program on Negotiation, 2005.
tiation, 2005.

31
 CONTENT
It is helpful in any conversation to take positive steps to • express frustration, anger or disappointment effectively
and non-judgementally – express the relevant behaviour

ONE
stimulate positive emotions, for the following reasons:14
in specific and objective terms and avoid accusation
• it encourages “autonomy” - people are responding • defuse anger
in accordance with their own principles,

TWO
rather than to coercion or pressure • assess the significance of any outburst
– is it a strategic manoeuvre?
• it creates “affiliation” - a sense of connection with a person
• address an angry response - but allow others to save face

THREE
• it gives a person a sense of “appreciation” -
individuals do not feel alone or disconnected • take a break.
• it provides “status” - no-one likes feeling demeaned
Fisher & Shapiro provide the following guide

FOUR
• it ensures that everyone’s role in the process is respected
for dealing with emotions effectively16:
• it ensures that cues in the conversation are picked
up because people are taking each other seriously • Take the initiative – don’t wait for emotions to explode

ONE
and listening to each other attentively.
• Address concerns rather than emotions

There are useful steps that can be taken in any conversation • Express appreciation – understand others’ points

TWO
to encourage the above outcomes, for example15: of view and communicate that understanding

• be aware of your emotions and of the situations • Build affiliation – build a connection with others
that might trigger strong emotions in you

THREE
• Respect autonomy – recognise that people
• seek to agree on an agenda need freedom to make decisions
• listen to others • Acknowledge status – rather than competing with others

FOUR
• educate others over who has the higher social status, acknowledge each
• avoid interrupting others person areas of expertise/status, including your own
• consult others – ask for information and identify interests • Choose a fulfilling role – choose a role that

FIVE
helps everyone to work together, and expand the
activities within any role to make it fulfilling.
14 Fisher, R. & Shapiro, D. Beyond Reason – Using Emotions as you Negotiate.
Viking, 2005. New York.

SIX
15 For further examples, refer to Adler, R. et al, Emotions in negotiation: how to 16 R. Fisher & D. Shapiro, op. cit.
manage fear and anger. in 14 Negotiation Journal 16, 1998.

32
 CONTENT
Handling high emotion

ONE
DO: DON’T:

TWO
Recognise

THREE
Emotion can present as silence or
violence - or language in between
Get hooked / sucked-in / lose track

FOUR
Respect
Listen and translate - Indicator for loss of safety Minimise / Maximise
are judgments and attacks or avoidance

ONE
Respond Patronise

TWO
Attitude: Respect the other and be curious
• Respect for other as a human being
• Curiosity about them and their story

THREE
• Develop this and convey it through use of the tools One-up (-manship)
Priority: Establish Safety

FOUR
• Aplologise / Contrast / Separate purpose and strategy
• Impact – stick with it before moving to intention Problem-solve
• Contribution – rather than blame

FIVE
Tools: Explore the other person’s internal story
(their path to action)
Bypass
• Listen • Acknowledge • Develop a common purpose

SIX
33
 CONTENT
Using emotional competence

ONE
The letters NURSE are a mnemonic for emotional competence: U Understanding: Develop your understanding
and demonstrate to the person with whom you
N Naming: Naming of emotions and ‘core are having a conversation that you understand

TWO
concerns’ can be extremely powerful. There what they are saying. Exploration, active listening
are two different levels of response: and summarising are key tools here.
1. Develop emotional vocabulary, broaden and remind

THREE
R Respect: This is on a universal level and is different
yourself of terms for emotional states - here is a sample from agreeing or deferring. Demonstrating respect for
A-Z: Angry; bewildered; confused; disappointed; embar- what someone is saying is likely to be demonstrated
rassed; frustrated; guilty; happy; hurt; impatient; jealous; through, for example, appropriate non-verbal

FOUR
lonely; nervous; overwhelmed; puzzled; queasy; rushed; communication (e.g. matching); acknowledging
sad; stressed; tired; uncomfortable; victorious; worried; emotions and, perhaps, the coping skills and emotions
excited; yucky; zany. of the person talking; use of silence (not immediately

ONE
2. Fisher and Shapiro encourage the naming of core jumping in with your own opinion); and expressing
concerns as an effective way of associating action and appreciation of the challenges someone has faced.
naming. They identify five core concerns. Learn to iden-

TWO
tify and take account of the core concerns, and structure S Supporting: Use a combination of empathizing (putting
your response to emotional situations in relation to: yourself in someone else’s shoes in order to understand,
appreciation; affiliation; authority; status and role. Be and conveying that understanding), not sympathizing
(expressing pity or personal concern for the other), and

THREE
aware that difficulty around these core concerns may
present itself as a whole range of emotions. managing expectations about what you are able to do in
a situation - this may appear tough in the short term, but
Whichever you choose, be careful to ensure that you are allowing or even encouraging unrealistic expectations will

FOUR
suggestive (i.e. “Are you feeling frustrated?” Or “Some people ultimately be perceived as incongruent and unsupportive.
would be feeling angry in this situation?”) not declarative (i.e. E Exploring: Key skills for exploration include - using open
“You are frustrated” “I can see you are angry”). This is so that questions and “tell me more” requests; using further open

FIVE
the person has the opportunity to choose their own label, questions to probe into a particular issue or topic; active
which will be of assistance to both sides of the conversation. listening; reflecting and paraphrasing; summarising to draw
together the threads of a conversation; use of silence and

SIX
use of minimal prompts and non-verbal encouragement.

34
 CONTENT
Excerpt from Fisher and Shapiro “Building Agreement”17: These core concerns are:

ONE
“We all have emotions all the time. Yet during a negotia-  ppreciation: Feeling unappreciated puts people
1 A
tion we have so many things to think about that we give down. We can appreciate others by understanding their
point of view; finding merit in what they think, feel or

TWO
little or no thought to emotions. We become so busy think-
ing that we let our emotions take care of themselves.” do; and communicating our understanding through
words and action. We can appreciate ourselves, too.

THREE
Most managers treat emotions as an obstacle to clear, rational  ffiliation: Rather than having each person feel alone and
2 A
thought. As a result, they do not realise the opportunity disconnected, we can try to build structural connections
afforded by positive emotions. as colleagues, and personal connections as confidantes.

FOUR
If individuals disagree with someone, how can they  utonomy: Recognize that everyone wants freedom
3 A
interact in ways that stimulate positive emotions to affect or make decisions. We can expand our
in both of them? It is against this background that autonomy and also avoid impinging upon theirs.

ONE
the book advances two big propositions:  tatus: No one likes to feel demeaned. Rather
4 S
than compete with others over who has the higher
First, take the initiative. If you are dealing with someone with social status, we can acknowledge everyone’s areas

TWO
whom you disagree, don’t wait for emotions to happen and of particular expertise, including our own.
then react.
 ole: An unfulfilling role leaves us feeling trivialised
5 R

THREE
Second, address the concern, not the emotion. Rather than and unengaged. We are free to choose roles that help
try to understand every current emotion and its possible us and others work together. And we can expand the
causes, focus on five widely shared concerns that can be used activities within any role to make them fulfilling.
to stimulate helpful emotions in others.

FOUR
The ideas in the book will not go to work by themselves. It
takes a live human being to understand them and put them
into practice. You can act in ways that meet the core concerns

FIVE
in others as well as in yourself. Express appreciation. Build a
sense of affiliation. Respect each person’s autonomy and status.
Help shape roles to be fulfilling.
17 Fisher, R. and Shapiro, D. Beyond Reason: Using emotions as you negotiate.

SIX
Random House, 2005.

35
 CONTENT
Using the core concerns wisely will improve the quality of rela-

ONE
tionships at work and at home. A difficult workplace conversa-
tion can be turned from a stressful, worrying interaction into a
side-by-side dialogue where each person listens to, learns from,

TWO
and respects the other. The outcome is improved and, instead
of inspiring resentment, the process inspires hope.

THREE
FOUR
ONE
Five Core Concerns:

TWO
Core Concerns The concern is ignored when… The concern is met when…
APPRECIATION your thoughts, feelings, or actions are devalued. your thoughts, feelings, and actions are

THREE
acknowledged as having merit.
AFFILIATION you are treated as an adversary you are treated as a colleague.
and kept at a distance.

FOUR
AUTONOMY your freedom to make decisions is impinged upon. others respect your freedom to
decide important matters.

FIVE
STATUS your relative standing is treated as your standing, where deserved, is given full
inferior to that of others. recognition.
ROLE your current role and its activities you define your role and its activities

SIX
are not personally fulfilling. so you find them fulfilling.

36
 CONTENT
Process skills Purpose in difficult conversations

ONE
Having a clear purpose for a difficult conversation will increase
A Process for having effective the chances of it proving productive. Attempting to persuade
or control is likely to trigger vehement verbal resistance or

TWO
difficult conversations firm silent dissent, with a rapid reduction in the willingness to
communicate openly.
The following diagram provides a phase-by-phase process

THREE
Constructive purposes in difficult conversations:
guide for difficult conversations. The phases most frequently
neglected are preparation and exploration. • Understand the other’s point of view
(e.g. get their view on impact of news)

FOUR
As indicated by the arrows, this is a flexible process. For
• Express your view (e.g. deliver news)
example it may be necessary to go back from problem-solving
into exploration if there is deadlock, or the need for some more • Analyse why you see things differently
preparation may emerge during the exploration. • Problem solve.

ONE
UNEXPECTED

TWO
MANAGE EMOTION

PREPARE

THREE
OPEN
PURPOSE, PRACTICALITIES, GROUND RULES
PREPARATION CHECKLIST

FOUR
EXPLORE
DATA AS WELL AS INTERPRETATION,

FIVE
FEELINGS, INTERESTS AND NEEDS…
PROBLEM-SOLVE CONCLUDE
CREATE VALUE, GENERATE OPTIONS,
AGREE ACTION

SIX
REALITY TEST AND CLAIM VALUE

37
 CONTENT
Destructive purposes in difficult conversations: Bad news conversations – rules of thumb:

ONE
• Seeking to change the other • Be clear and firm about the non-negotiable
• Persuading them (e.g. get them on board)
• Be clear about your purpose:

TWO
• Controlling them (e.g. make sure he likes me).
- Make sure the purpose is not about changing or con-
trolling the other
So how do you choose a constructive purpose for a difficult
- Make sure the purposes include exploring the impact of

THREE
conversation, whilst staying true to what you want to say?
the news on the other
1 Be as honest as possible with yourself about your motives
• Don’t sugar-coat the information.
and your emotions in relation to the conversation

FOUR
2 Challenge yourself to develop a constructive
and realistic purpose for the conversation.
Checklist for preparation for

ONE
a difficult conversation
Bad news conversation
Your answer to each question can be very brief.

TWO
Some difficult conversations involve delivering non-negotiable
information e.g.: Purpose:
• Bonus cancellation

THREE
1 Do I have non-negotiable news to deliver? That
• Failure of an exam is, news of a decision that has already been
made, which genuinely cannot be changed.
• Death of a relative.

FOUR
2 What do I want to achieve? Do I need to
modify this to make it achievable?
Curiosity about the other’s point of view is essential for an
effective difficult conversation, even where the scope for 3 What might the other person’s purpose

FIVE
discussion and negotiation is limited. In these circumstances it or goal be in this conversation?
is important that the curiosity about the other’s view does not
give the impression that facts or the information is negotiable.

SIX
38
 CONTENT
Move from Certainty to Curiosity: Contribution:

ONE
Negotiate with yourself from a position of certainty about your How has each person, including me, contributed to the cur-
own view to a place of curiosity about the other person’s view rent situation?

TWO
- this does not mean that you have to change your perspective,
just be open to and take an interest in the other person’s point Emotions and personal safety:
of view.
1 What emotions does the situation trigger in you? …

THREE
1 Certainty - What do I think, feel and and what might be triggered in the other person?
believe about the situation?
2 Are there elements of this conversation which may cause
2 Curiosity - What don’t I know? On what information

FOUR
you or the other to feel insecure, aggressive or defensive?
is the other basing their conclusions? How has this
situation affected them personally? What does the other What can you do to prevent this from happening?
person think, feel and believe about the situation? How do I make it easy for them to hear what I am saying?

ONE
Impact, intention, observation and judgement: How can I frame what is important to me in a way that will
make sense when standing where they are standing/from their

TWO
1 What impact have they had on me? (May not viewpoint?
be relevant in bad news conversation)
2 What impact have I had on them/ Having considered all of the above, am I the

THREE
will this news have on them? right person to have the conversation?

3 What might their intention(s) have been? (May Do I need to consult with HR or someone
not be relevant in bad news conversation)

FOUR
else before having the conversation?
4 Have I separated what I have observed from
my judgement of what I have seen?

FIVE
SIX
39
 CONTENT
PART ONE: SECTION THREE:

ONE
CONFLICT NEGOTIATING THROUGH

TWO
MANAGEMENT WORKPLACE CONFLICT

THREE
FOUR
ONE
TWO
The Continuum of approaches to negotiation..............................................................................................................41

THREE
Persuasion and influence..............................................................................................................................................................48

FOUR
FIVE
SIX
40
 CONTENT
The Continuum of approaches to negotiation18

ONE
The Continuum of The co-operative-competitive dilemma

TWO
approaches to negotiation

Co-operative Competitive

THREE
Win-Loose
Warring / Hard

OPENNES DISTORTION

FOUR
Better information and Exploitation of revealed
Competetive / attitudes for better joint interests and resources
Hard problem-solving

ONE
TWO
Compromising ACQUISITION
/ Soft GIVING Take, and ask for more
Create movement with

THREE
concessions

Co-operative /
Principled GAMES

FOUR
Demand concessions as a
RELATIONS condition of the relationship
Win-Win

Cultivate liking and good (who needs friendship when

FIVE
Problem Solving personal relations with important interests are at
/ Principled concessions stake?)

SIX
18 Negotiation skills are discussed also in Part 2, Section 5, page 125.

41
 CONTENT
Claiming value options and the only way forward is usually through a series

ONE
of concessions or compromises. These series of movements are
Positional negotiation can be defined as the process by which often referred to as the negotiation ‘dance’ or ‘horse-trading’
gains are made by one party at the expense of the other; the and it often requires a series of several moves before a satisfac-

TWO
more B gets, the less A gets (See Figure 1). Hard negotiation or tory resolution is achieved.
positional negotiation is prevalent because of its simplicity – it
is universally understood, frequently expected, and concrete. It This style of negotiation often uses aggressive strategies and/

THREE
also requires little preparation and demands little flexibility or or provokes an aggressive response, and this can damage or se-
creativity. Tactics are common; for example, the use of threats, verely impact the relationship of the parties who are negotiat-
bullying and stonewalling. ing.19 Research by Melstner and Schrag suggests that the most
unsuccessful negotiators are those who are strictly positional

FOUR
Thinking of what is available for distribution as a pie, the issue and who also appear discourteous, untrustworthy, disinterest-
is who gets what slice of pie and how big will it be. This process ed in others, inflexible and demonstrate manipulative charac-
is often described as distributive bargaining. teristics.20 However, “ethical or softer” positional negotiators

ONE
were found to be more effective, and with some flexibility came
Competitive (distributive) negotiation assumes that the value greater success; thus suggesting that it is possible, depending
of the ‘pie’ is relatively fixed and each negotiator seeks to maxi- on the skill of the negotiator, to be either competitive or to be

TWO
mize their own share of the pie so that A or B gets the bigger or cooperative and “effective”.
better slice. (See Figure 2)

THREE
This type of bargaining is also often referred to as a zero-sum
exchange because as one person gains, the other person loses.
This movement from one position to another affords very few

FOUR
A B A B 19 A series of experiments, conducted by Prof. Gerald Williams in the 1970’s and

FIVE
1980’s, sought to identify the characteristics of effective lawyer negotiators and
how they impacted on the success of the negotiations. The findings revealed
that 65% of the lawyers viewed as cooperative and 24% were considered com-
petitive. Williams, Gerald. Legal Negotiation and Settlement. 1983.

SIX
Figure 1 Figure 2 20 Schneider, Andrea. Shattering negotiation myths: empirical evidence on the
effectiveness of negotiation style. 7 Harvard Negotiation Law Review 143. 2002.

42
 CONTENT
Creating value 21

ONE
Negotiators can create real value when they devise gains for all parties. When they arrive at an agreement that offers better results to
the parties than other possible solutions, that agreement creates value relative to inferior outcomes. The negotiators work hard to in-

TWO
crease the scope of the negotiations, enlarging the pie so that A and B get bigger or better slices than they would otherwise have gotten
- or even creating other pies.

THREE
Beyond the zero-sum exchange:
• Not assuming that the value is fixed WINNER
• Looking for ways that both sides can gain with

FOUR
LOSER
as little cost to the giver as possible.

Ways of expanding the “pie”:

ONE
• Look for other elements/factors that could be
considered as part of the negotiation

TWO
• Think more globally.
Issue
Focus on interests and not positions:

THREE
• Look ‘behind the surface’ to see what
is really motivating the parties
• Identify possible areas of conflict and of increased value

FOUR
Position Position
• Acknowledge different types of interests (abstract
needs that must or could be satisfied)
- Process – procedures

FIVE
- Substantive – issues
- Relationship – parties
- Principles – ethics.
Interest Interest

SIX
21 Fisher, R. and Ury, W. Getting to Yes. Hutchinson, 1982.

43
 CONTENT
Integrative bargaining Benefits of integrative bargaining

ONE
• Increased efficiency
Four Steps:22
• Better agreements

TWO
Be hard on the substance
• Preservation of the relationship
• Separate the people from the problem
• Understand the other side’s perspective • Reduced danger that the agreement will be repudiated
• Don’t infer intentions from fears • Improved organizational effectiveness.

THREE
• Confirm interpertations before acting on them
Sources of value
Distinguish interests from issues

FOUR
• Understand reasons behind positions According to Robert Mnookin and Lax and Sebenius, there are
• Ask information seeking questions – why? how? four basic sources of value in negotiation:23
• Listen to what is not being said
• Differences between the parties

ONE
• Negotiate on the process
• Non-competitive similarities
Develop options for mutual gain • Economies of scale

TWO
• Invent options and withhold criticism • Reducing strategic opportunism.
• Develop options that contain interests of both parties
• Evaluate reasonable options

THREE
• Reinvent options based on evaluations
Differences between the parties

Evaluate potential solutions It is natural in negotiation to look for the similarities between
the parties, such as common ground. However, in economic

FOUR
• Consider realistic options whitch meet the parties’ needs
• Evaluate the solutions from the other terms, it is the differences that create the potential for trading
party’s frame of reference gains.
• Make a cost/benefit analysis

FIVE
• Integrate options if possible to provide the best solution
• Measured against objective criteria 23 Mnookin, R. Beyond Winning: Negotiating to Create Value in Deals and
Disputes. Harvard University Press 2000 and Lax and Sebenius. The Manager
as Negotiator: the Negotiator’s Dilemma. Dispute Resolution, 2nd ed., Little

SIX
Brown and Co. 1992.
22 Fisher, R. and Ury, W. Getting to Yes. Hutchinson, 1982.

44
 CONTENT
Some examples of differences are: resources, Exercise

ONE
relative valuations, and time preferences.
Without lifting your pencil from the paper, connect all of
1 Resources - where one party has resources the dots by drawing no more than 4 straight lines
that the other wants, they can be traded.

TWO
2 Relative valuations - two people attach different Try this before turning the page!
values to something under discussion. They are able

THREE
to achieve a successful conclusion when they discover
that each wants to retain a different element.
3 Time preferences - The office feels that rental

FOUR
for the building is too high. The owner of the
building will consider a lower rental, if the office
guarantees longer-term commitment.

ONE
Non-competitive similarities

TWO
Where parties share the same interests, each can enjoy added
benefits without the other suffering any loss. This is particular-
ly so in negotiations where there is a continuing relationship

THREE
between the parties. Both have an interest in preserving a good
working relationship, and this added value makes any conces-
sions ‘cheaper’ than would otherwise be the case.

FOUR
Identifying the common goals shared by the parties is often an
effective way to introduce this element.

FIVE
SIX
45
 CONTENT
Economies of scale

ONE
3 9 8
Cost can decrease when parties agree to share cost of, for
example resources or office space.

TWO
Reducing strategic opportunism
4 2 7

THREE
A negotiator may set out to be co-operative and principled in
her or his approach. However, the threat that the other side will
take advantage of that approach may cause that ‘fair’ negotiator

FOUR
to become opportunistic and positional as a defence mecha-
nism. The effect can be that no agreement is reached.
5 6 1

ONE
The key to reducing this ‘strategic opportunism’ is communica-
tion. Careful and wise communication can provide a structure
that facilitates cooperation. In addition, however, it is advisable

TWO
to seek objective criteria, independent of trust, on which a
settlement can be reached.

THREE
Thus a party may insist that it cannot give a better offer be-
cause of its difficult financial situation. Rather than accept this,
This exercise is an example of thinking ‘outside of the or reject it out of hand, one way of breaking through the strate-
negotiation box’ – but what does it teach us? gic dilemma is to seek organizational or management accounts

FOUR
Question: or other independent evidence to support the position or to
build in future returns.
1 How successful were you at achieving the task?

FIVE
2 What assumptions did you make?
3 How does this relate to negotiation?

SIX
46
 CONTENT
Differentiating interests and positions

ONE
Positions Interests

TWO
MONEY We shouldn’t have to pay you; we are giving you a Saving Money
great opportunity. • Personal bonus

THREE
The other side should equal or exceed the offer • Possible financial disaster
made by a competitor firm. Offset project set-up costs
•Reputation (personal)

FOUR
•Relationship (organisation)

EXPERIENCE Your team (not mine) has experience, Convey to the other side that you

ONE
but has messed up before. have knowledge of them
• Use experience of other side
• Reassurance (that the same thing

TWO
won’t happen again)

GOOD FAITH The other side needs to demonstrate to you that Understand intentions of other side
they are acting in good faith.

THREE
• Gain access to a new market
• Assess whether this is a relationship
worth investing in.

FOUR
FIVE
SIX
47
 CONTENT
Persuasion and influence Reciprocity

ONE
Much of the recent learning about persuasion and influence This is one of the most basic norms of human behaviour; this
has come from the work of Cialdini24 who has articulated relies on a repayment for an act by another person. It is heavily

TWO
six underlying principles that persuade individuals to move steeped in cultural context and relationship issues and can of-
towards agreement. ten be used as a tactic by one who has the skill and knowledge.
The following illustrates how reciprocity can influence:

THREE
These principles are:
• Power - reciprocity can be very overpowering and
• Reciprocity can often influence the behaviour of the recipient
(often leaving them with the feeling that they have

FOUR
• Commitment and consistency to do something to reciprocate the behaviour)
• Social proof • Timing - this applies even to those who have received
• Liking something totally unexpected/uninvited and

ONE
reduces/influences the choice of the individual
• Authority
• Influence - ultimately this can cause a feeling of
• Scarcity indebtedness and thus they will often agree to a

TWO
larger favour in response. This rule is also true for
those who make first concessions, as this will often
stimulate others to make concessions in return.

THREE
In order to resist these being used as tricks/tactics, accept the
action in good faith, but be alert to the motivation/reason

FOUR
behind the gift, and don’t immediately react with a reciprocal
response but take a step back and analyse the exchange before
deciding whether to reciprocate.

FIVE
SIX
24 Cialdini, R. Influence: the psychology of persuasion. Collins, 2007.

48
 CONTENT
Commitment and consistency Social proof

ONE
In business (and in life) the consistency of an individual’s be- There is a lot of synergy between social proof and ‘group think’.
haviour is highly valued and regarded, it makes life orderly and This is particularly apparent in the following:

TWO
manageable (otherwise individual interactions would be chaot-
• Power - this concept has tremendous influence because
ic and unpredictable). This can have a positive influence on the
it can cause individuals to comply when they might
reputation of an individual (or group/organisation) particular-
otherwise select a different course of action, although for

THREE
ly if they can be trusted to operate in a consistent manner. The
some this is one easy way of dealing with uncertainty
benefits that consistency affords a business relationship are:
• Consistency - social proof relies on the idea that
• Pattern - provides a valuable shortcut because it is
individuals will look to see if their ideas are consistent

FOUR
assumed that actions will be in accordance with previous
with those of other similar or like individuals
behaviour (although a pattern might change)
• Impact - this can also have a negative impact because
• Behaviour - consistent conduct provides
there is often pressure not to ‘rock the boat’; because of

ONE
a beneficial approach to daily life
this ‘apathetic response’ if one person fails to act then
• Tactic - once you have made a commitment, consistency the group will often follow (‘disinterested bystanders’).
will require that you follow your initial intentions; but realise

TWO
that this can also be used as a tactic, because if someone
There are going to be occasions when operating in accordance
has made a commitment they are more likely to conform.
with the group would be wrong. In order to recognise when

THREE
this might happen, analyse the information the other is using
Commitments are most effective when they are active, public, as a basis for decision-making. Be prepared to declare that the
effortful, and viewed as internally motivated (un-coerced). Once group could be wrong and the decisions that they take could be
a stand is taken, there is a natural tendency to behave in ways that disadvantageous to you as an individual and to the group, and

FOUR
are stubbornly consistent with that decision. The drive to be (and be prepared to deal with the reaction that this might provoke.
look) consistent constitutes a highly potent weapon of social influ-
ence, often causing people to act in ways that are clearly contrary

FIVE
to their own best interests. However, even though there will be
pressures to conform to the commitments that have been made
(being consistent) this behaviour should only follow a careful

SIX
analysis of whether this is the best course of action (compliance
should be based on best case analysis rather than social pressure).
49
 CONTENT
Liking • S
 imilarity
People like others who are similar to them; in fact this

ONE
People will tend to say yes to someone they know and like – is often one of the most important underlying reasons
salesman practise this all the time, their first rule is to make to ‘like’ someone. These can include similarity in:
- Education - Personality

TWO
friends with the customer and with this a sales process/pro-
cedure begins. As the world’s greatest car salesman said: “[his - Profession - Life-style
secret was] finding the salesman they (the customer) like, plus
- Culture - Dress/appearance

THREE
the price, put them together, and you get a deal.”25
- Opinion
There are several elements to what makes
someone ‘like’ you (and you liking them): • 
Compliments

FOUR
Flattery/compliments will often be effective in making the
recipient willing to be compliant and like the person. There
• P
 hysical attractiveness is a tendency to believe praise and, as Cialdini noted: “we

ONE
Generally people who are good-looking have an are phenomenal suckers for flattery!”
improved social benefit from their appearance and
a series of studies have been conducted to analyse • 
Contact and cooperation

TWO
the advantages of a certain appearance26
- Individuals like the familiar. The more contact we have
- Canadian study suggested that attractive candidates with something/someone, the more comfortable we are
receive 2/3 more votes than those individuals who were with it/them (although the reverse is also possible – the

THREE
perceived to be less attractive more contact you have with something/someone that you
- A study revealed that candidates for a job who were well don’t like, the more entrenched your feeling will become).
groomed received more favourable hiring decisions (often See example below.27

FOUR
bigger impact than their qualifications) - Cooperation is a strong factor in liking someone. Whole
- A Pennsylvania study showed that good looking people organisations base their livelihood on promoting cohe-
receive better treatment in the legal system – better look- siveness and teamwork, encouraging colleagues to work

FIVE
ing men received significantly lighter sentences and higher together for the same goal.
compensation.

SIX
25 id. 27 id.
26 id.

50
 CONTENT
EXAMPLE - A TV weatherman reported receiving hate mail from
viewers when there was news of severe flooding. When he

ONE
Find a negative of a picture you like with a full view reported bad weather he was hated and when there was a
of your face; have it developed – one with how period of good weather, he was popular.
you look and a reverse image (so that different - Because advertising is based on association – advertisers

TWO
sides of your face are interchanged). When they will play on the emotions of the individual and use images
are developed look and see which picture you to tell a story. i.e. if you use product X you will play tennis
prefer and then ask a friend their preference. like a champion or be as rich as a film star.

THREE
Your friend will probably prefer the true print and you
should prefer the reversed print – why? Because both Authority
are responding to something that is familiar – your

FOUR
friend sees your face like the true print and you the In our society there are many situations where individuals will
reverse (the one seen in the mirror every day). This follow the authority of another, even though they may disagree
experiment was conducted by a group of women from with the decision. This adherence to authority permits society

ONE
Milwaukee and they came to the same conclusion. to function effectively, encouraging resource production, trade,
defence and social control. Without this, anarchy would follow
– as social philosopher Thomas Hobbes declared, it would

TWO
• 
Conditioning and association leave us “solitary, poor, nasty, brutish, and short.” There are
Individuals will associate their feelings about a particular several factors that influence authority.28
thing/circumstance as an attribute of that person. There is a
• T
 itles

THREE
tendency to dislike someone who shares bad news but like
Actual, perceived or fabricated titles can greatly
those who bring a positive message. Some examples of this
influence the interaction. Generally titles take many
are:
years to acquire (although not those titles which are

FOUR
- In Persia the military courier who was assigned as mes- hereditary) and appearance also helps to secure the level
senger would hope that there was good news from the of authority associated with the title. An individual can
battlefield. The courier who returned news of a successful merely adopt a title with reasonable success to achieve a
battle would be treated as a hero, with food, drink and

FIVE
particular level of authority (actors and con-artists).
women. Those who returned with news of military disas-
ter were slain. - Titles confer power - research was conducted in a series
of hospitals which revealed that medical mistakes were

SIX
28 id. at 217. routinely made because skilled nurses were not using their

51
 CONTENT
training and were deferring to the physician’s directives, • C
 lothes
even when wrong. In the world of work adherence to These are often symbolic and can trigger almost ‘mechanical’

ONE
power, title and authority is the preferred and accepted compliance. They can as easily be used for legitimate and
method – contradiction is difficult and against custom. illegitimate purposes – they are a visual representation of
authority and with additional embellishments can carry

TWO
- Status and size - studies conducted have shown that chil-
even greater weight (stripes on a uniform, colour of clerical
dren over-value coins that appear larger. Adults follow the
dress, type of hospital coat and height of a chief ’s hat!)
same pattern – see example.

THREE
EXAMPLE EXAMPLE

FOUR
An experiment was conducted on five classes of Experiments to test requests from figures wearing
Australian college students. In each class a man was some sort of authority attire were carried out to test
introduced as a visitor from Cambridge, England compliance with requests. Half of the requests were

ONE
and when the visitor left the students were asked given by a young man wearing normal business dress
his height and each class had a different answer – in and the other was by the same man wearing a security
each instance, the only variable was the title of the guard’s uniform. Regardless of the type of the requests,
individual as he was being presented to the class. a greater number of individuals complied with the

TWO
request by the man when he was dressed a guard
• in the first class he was presented as a student
than when he was wearing normal business attire.
• in the second class he was introduced

THREE
as a demonstrator
• T
 rappings
• in the third class he described as a lecturer
Clothes can also act to convey more than just

FOUR
• in the fourth class he was introduced authority of the individual but also the wealth. There
as a senior lecturer is the perception that the finer and more expensive the
clothes, the greater the status of the individual wearing
• in the fifth he was presented as a professor

FIVE
them. The same could be true for a person driving a
The results of the experiment was the professor was particular brand of car (again a perception of wealth
estimated as being 2 ½ inches taller than the student. and status even though the person might not even own
the vehicle); greater deference is given to drivers of

SIX
expensive cars than to those who drive cheaper brands.

52
 CONTENT
Scarcity The scarcity principle is most likely to hold

ONE
under two optimising conditions:
According to this principle, people assign more value
to opportunities when they are less available. The use of
1 Scarce items are heightened in value when they

TWO
this principle for profit can be seen in such compliance
are newly scarce (we value those things that have
techniques as the “limited number” and “deadline” tactics,
become recently restricted more than those that
this is when individuals try to convince others that access
have a history of being difficult to attain)

THREE
to what they are offering is restricted by amount or time.
The scarcity principle holds true for two reasons: 2 We are most attracted to scarce resources when we compete
for them with others. It is difficult to resist against scarcity
1 Things that are difficult to attain are typically pressures (cognitively) because they have an emotion-

FOUR
more valuable, the availability of an item can arousing quality that makes rational thought difficult.
serve as an indication of its quality However, it is possible to be alert to the rush of arousal
in situations involving scarcity. Thus, when alerted, it is
2 As things become less accessible, we lose freedoms.29

ONE
possible to take steps to calm the arousal and assess the
According to psychological reactance theory, we respond
merits of the opportunity in terms of need and suitability.
to the loss of freedoms by wanting to have them (along
with the goods and services connected to them) more

TWO
than before. As a motivator, psychological reactance is
presented throughout a great majority of the life span.
However, it is especially evident at two periods – “the

THREE
terrible twos” and the teenage years. Both of these times
are characterised by an emerging sense of individuality,
which brings to prominence such issues as control, rights

FOUR
and freedoms. Consequently, individuals at these ages
are especially sensitive to restrictions. This also applies to
how information is evaluated. Research indicates that the

FIVE
act of limiting access to a message causes individuals to
want to receive it more and to treat it more favourably.

29 Additional work has also been conducted by Tversky and Khaneman who

SIX
have investigated the value of diminishing or gaining resources. In Advances
in Prospect Theory, Journal of Risk & Uncertainty, 1992. (5) 4 pp. 297-323.

53
 CONTENT
PART ONE: SECTION FOUR:

ONE
CONFLICT TEAMS AND

TWO
MANAGEMENT CONFLICT

THREE
FOUR
ONE
Team..............................................................................................................................................................................................................55

TWO
What is a team?........................................................................................................................................................................................55
Developing and maintaining an effective team . ........................................................................................................................ 56

THREE
Team roles..................................................................................................................................................................................................57
Conflict within teams............................................................................................................................................................................ 58
Trust............................................................................................................................................................................................................. 59

FOUR
Factors that enable “Swift Trust”.......................................................................................................................................................61
Building trust in a relationship...........................................................................................................................................................64
Calculus-based and identification-based trust.............................................................................................................................. 67

FIVE
Sixteen relationship types based on dominant trust and distrust elements.......................................................................69

SIX
54
 CONTENT
Team Types of teams

ONE
According to the Tavistock Institute there are three types of
What is a team? teams:31

TWO
1 Operational Teams – These are permanent workers
The minimum criteria for describing a group of people as a
– either internal or external. This type of team is
team are:
directly involved with production (can include

THREE
self-managed teams and autonomous work groups)

Autonomy of 2 Service teams – these are formed to deal with a

A defined goal particular service, they may also be involved in

FOUR
action by the team
providing a product/service to a wide range of clients
3 Cross-functional teams – members are from
a variety of sources, usually established to deal

ONE
Communication Action implemented with a particular problem/issue. Part-time or full-
between team by the team in time (potentially for a fixed period of time) these
team members are often part of other teams.

TWO
members relation to the goal

Organisational commitment

THREE
Teams vs. groups There needs to be a commitment by the organisation to work-
ing with teams; if not there might be a clash between methods
• Effective workgroups pool resources to of operation. The commitment needs to come from manage-

FOUR
get best decisions for the group ment and should be adopted (when and if possible) across the
• Ineffective workgroups – individuals place their organisation. There should be a move towards a collaborative
own solution above that of the group working environment (as opposed to competitive).

FIVE
• Main difference between team and group is that the team
30 McGreevy, M. Team Working: Part 1 – An Evaluation of Current Thinking.
works together to solve problems, with no one member Industrial and Commercial Training, 2006. 38(5) pp. 259-264.

SIX
being a dominant influence. They use their expertise and 31 McGreevy, M. Team working: Part 2 - How are teams chosen and developed?
pool their resources so that team work can occur.30 Industrial and Commercial Training, 2006. 38(7) pp. 365-370.

55
 CONTENT
Teams have a function and as such they should consist A defined and agreed goal

ONE
of members who can perform and function:32
Effective communication between team members
• imperfect people can make perfect teams when
the roles, skills and contributions of individual

TWO
Autonomy of action by the team
members of a team are complementary.
Action implemented by the team in relation to the goal

THREE
33
Developing and maintaining an effective team Diversity amongst the team members

• Forming – The group comes together and gets Defined roles of team members
to know one another and form as a team

FOUR
Constructive conflict between team members
• Storming – Conflict may arise and individuals
may seek leadership positions – a variety One criterion must be added, without which the team
of group processes are explored cannot function - TRUST

ONE
• Norming – Agreements are reached
on how the group operates

TWO
• Performing – The group becomes Teamwork is not a panacea
effective in meeting its objectives
• Adjourning – Process of dismantling the group, There are risks that emerge from people working

THREE
letting go of the group structure and moving on. in teams, whether effective or ineffective.
The most significant of these are:
Criteria for an effective team
• The reduction of acceptance of organizational change

FOUR
• On their own, the above are clearly insufficient
• The suppression by the team of “deviant” solutions
to ensure that this team works effectively
• Additional minimum criteria for effective functioning are: • Groupthink: the illusion of the team being unbeatable,

FIVE
taking on high risks and exaggerating optimism. This may
lead to the rationalisation of bad news, an unwavering
32 id.
belief in the moral integrity of the group, the stereotyping
33 Higgs, M. Plewnia, U. and Ploch, J. Influence of team composition and task

SIX
of critics and a lack of deviation from group consensus.
complexity on team performance. Team Performance Management, 2005. 11
(7/8) pp. 227-250.

56
 CONTENT
Team roles

ONE
R. Meredith Belbin did ground breaking research on roles within teams. An understanding of these roles is key to: designing teams,
making the most of team members’ strengths, and diagnosing causes of conflict within teams.

TWO
Belbin gives three orientations within teams, which are subdivided into nine roles:34

THREE
Shaper Challenges the team to improve

Action oriented roles Implementer Puts ideas into action

FOUR
Completer finisher Ensures thorough, timely completion

ONE
Coordinator Acts as a chairperson

TWO
People oriented roles Team worker Encourages cooperation

THREE
Resource investigator Explores outside opportunities

Plant Presents new ideas and approaches

FOUR
Thought oriented roles Monitor-evaluator Analyses the options

FIVE
Specialist Provides specialised skills

SIX
34 Belbin, M. Team roles at work. 9th ed., Butterworth-Heinemann, Portland, 2000.

57
 CONTENT
Conflict within teams CHALLENGER

ONE
Questions goals

Styles of team members

TWO
Individuals within a team have a preferred role/function type
(see Belbin) and they also have a preferred style of participa- COMMUNICATOR Team CONTRIBUTOR

THREE
tion, within a team setting. Four styles have been identified:35 Process oriented Player Task oriented
Challenger, contributor, collaborator and communicator, and
depending on their role/function each of these can have a
positive or negative effect on the team.

FOUR
Contributor: + Is dependable and results driven COLLABORATOR
+ Is well prepared and provides Goal directed

ONE
the team with information.

Collaborator: + Is able to see the ‘big picture’

TWO
and has a vision There is high potential for conflict in relation to roles within
+ Is flexible and open to new ideas. teams. Some of the difficulties which can arise include:

THREE
Communicator: + Is an effective listener and facilitator • Vacancy of roles: reluctance of team members to
+ Is able to build consensus take on particular roles, or excessive homogeneity and
and provide feedback. lack of diversity of role preferences within a team

FOUR
• Competition for roles: two or more people
Challenger: + Is able to actively question and competing to take a particular role
encourage full participation
+ Is willing to disagree with the leader. • Value judgement of roles: those with strong role

FIVE
preferences may add a value judgement to the importance of
a particular role or its functions - that one’s own role is most
important, or that those taken by others are inappropriate.

SIX
35 Parker, G. Team Players and Team Work: New Strategies for Developing Suc-
cessful Collaboration. John-Wiley, 2008.

58
 CONTENT
Building trust in TRUST Trust 36

ONE
a relationship build trust by listening
and acknowledging Trust is the “expectation by one person, group, or
firm of ethical behaviour—that is, morally correct de-

TWO
cisions and actions based upon ethical principles of
analysis—on the part of the other person, group, or
win their trust firm in a joint endeavour or economic exchange.”

THREE
set an appropriate trust default Trust is a confident positive expectation
regarding another’s conduct.
build rapport before negotiating

FOUR
make maximum use of your network Distrust is a confident negative expectation.

BETRAYAL OF TRUST

ONE
Withdrawal Create “Risk free“ INEVITABLE BREAKDOWN

TWO
all trust options failed deal, failed relationship

Start Use contractual control mechanism

THREE
Over to ensure compliance

Put control Police the

FOUR
systems in place other party

Begin rebuilding Ignore issue

trust Productive Counter-productive all together

FIVE
steps steps

SIX
36 Harridge-March, Sally. Can the Building of Trust Overcome Consumer Perceived Risk Online? 24 Marketing Intelligence & Planning, 2006. 7, pp. 746 – 761.

59
 CONTENT
Three categories of people in relation to trust: 3 Assess whether trust is justified

ONE
• Ask yourself these questions:
HIGH TRUST from overlooking risk of Did trust merely “happen”?
betrayal Did trust grow over time?

TWO
REASONABLE from expectations based on • Negotiators often feel uncomfortable
TRUST cost/benefits abandoning a norm of complete trust

THREE
• The status quo becomes full trust as a norm and to
LOW TRUST from fear of exploitation deviate is a violation of the norm (e.g. patients rarely
question their doctor even when they have doubts about
When trust is assumed from the start, rather than allowed to

FOUR
whether or not they are getting unbiased advice; full
grow over time, it doesn’t invite reciprocal acts of kindness.37 trust is the norm even to the patient’s detriment)
• Trust that is built over a long period of time creates

ONE
Some ideas about how to build trust a relationship that is worth maintaining
- without trust, many parties walk away from the deal
1 Discuss ground rules about trust38 - with trust, many parties stay for the relationship.

TWO
Rather than assuming mutual trust, explain that you
are a conservative risk taker who prefers to build
trust slowly over the course of a relationship.

THREE
2 Incorporate risk and uncertainty into your deal
Put your concerns about social risk on the
table through contingent agreements.

FOUR
FIVE
SIX
37 Bohet, Iris. The Payoff of Trust Negotiation, 2004. 1-5.
38 Bohet, Iris and Meier, Stephen. How much Should You Trust? Harvard Business Review, 2006.

60
 CONTENT
4 Make a trust adjustment Factors that enable “Swift Trust”39

ONE
• After betrayal of trust, negotiating
parties have various options: “When parties are engaged in tasks that require moderate
interdependence, maintain some social distance from each
- Ignore the problem

TWO
other in interactions that are role driven, and commit to being
- Design trustworthy system to police the party you distrust
adaptable and resilient, trust that is adequate to complete their
- Use contractual control mechanisms to ensure compliance
tasks can form swiftly and be sustained for the duration of
- Withdraw all trust and start over.

THREE
their required interaction.”

FOUR
Role-based behaviours (e.g. drills, rituals,
procedures) are derived known and
adhered to broad professional standards

ONE
TWO
Recruitment of individuals with
Individuals minimize inconsistency
known reputations for trust-worthy
and unpredictability in that role-based
behavior (lowering-expectations for
behaviour

THREE
trust-destroying behaviour)
Swift
trust

FOUR
Role-based interactions where individuals’ Individuals are engaged in tasks
reliable actions consistent with training that require moderate levels of
and development in their role interdependence

FIVE
39 Lewicki et al. Models of Interpersonal Trust Development: Theoretical Approaches, Empirical Evidence and Future Directions. 32 Journal of Management, 2006. pp. 991.

SIX
999-1000 (citing 1996 study by Meyerson, Weick, and Kramer). With the necessary factors, individuals and team members can come together and successfully do highly
complex or skilled interactions in temporary groups such as surgical teams, disaster rescue teams, and airline cockpit crews.

61
 CONTENT
In virtual communications with

ONE
the absence of face-to-face contact

Although groups may exhibit a type of swift trust, trust is often

Trust

TWO
temporal and fragile. Swift trust can be maintained only so
long as the members communicate enthusiastically.40

THREE
Swift trust baseline

Trust is important in both personal and organizational rela-

FOUR
tionships.
Several authors and scholars challenge the zero-baseline as-
sumption about trust.41 Distrust

ONE
No positive
In reality, most individuals do not have a blank slate of trust effect
or distrust42 and there is a strong disposition to “over-trust” in

TWO
early relationships.
This “phenomena” is often referred to as: Swift trust.

THREE
No
No meaningful perception of
No confidence

FOUR
interaction common values
in other party and attitudes

FIVE
40 Kasper-Fuehrera, Eva C. and Ashkanasy, Neal M. Communicating Trustworthiness and Building Trust in Interorganizational Virtual Organizations. 27 Journal of
Management, 2001. 3.

SIX
41 Lewicki et al. Models of Interpersonal Trust Development: Theoretical Approaches, Empirical Evidence and Future Directions 32 Journal of Management, 2006. pp. 991, 999.
42 Lewicki, Roy J. Trust, Trust Development, and Trust Repair In Deutsch, M. and Coleman, P. The Handbook of Conflict Resolution, 2006.

62
 CONTENT
A baseline of initial distrust43 A baseline of moderate to high level of initial trust47

ONE
Cultural psychological factors that Personality factors that create
bias individual towards distrust disposition to trust

TWO
Untrustworthy reputation suggesting Initial Institutional structures that assure Initial

THREE
that distrust is appropriate protection against distrusting
distrust actions by others trust

FOUR
Rapid cognitive processes that allow
formation of initial impression of Rapid cognitive processes that allow
other’s trustworthiness formation of initial impression of
other’s trustworthiness

ONE
Other Sources of Distrust:

• In-group individuals distrust out-group members

TWO
• Perceptions of value incongruence
• Disposition to be competitive44

THREE
• Personality-disposition to distrust people generally45
• Reputation for being untrustworthy46

FOUR
43 Lewicki et al., Models of interpersonal trust development: theoretical approaches, Empirical evidence and future directions 32 Journal of Management, 2006. pp. 991, 1000.
44 id. Kelley and Stahelski (1970) found support for the notion that some individuals are more prone to act competitively, and they are more likely than their more coop-
eratively oriented counterparts to act on the assumption that others are untrustworthy, thereby eliciting competitive behaviours from those who would otherwise be
cooperative.

FIVE
45 id. distrustful personality is formed usually based on generalizing from a pattern of trust disconfirming events in the past (Mayer et al., 1995; Rotter, 1967).
46 id. in the absence of direct prior experience with a specific individual, one may prepare for interacting with that individual by learning about his or her reputation (Glick
&Croson, 2001). If an individual has a reputation for being untrustworthy, this will evoke distrust of him or her by others who become aware of that negative reputation.

SIX
47 id. (citing 1998 study by McKnight, Cummings, and Chervany). These three factors shape both trusting beliefs which lead to trusting intentions and the contextual
condition that ultimately determine whether the trusting intentions are fragile or robust.

63
 CONTENT
Building trust in a relationship

ONE
Win
trust THE DEAL

TWO
Listen

THREE
& acknowledge

FOUR
Continue to
build trust

ONE
Parties begin a new Build Swift
Explore
relationship rapport trust

TWO
Breach Try to
of trust regain trust

THREE
Parties are polarized:

FOUR
negotiate at arm’s lenght

FIVE
Deadlock NO DEAL

SIX
64
 CONTENT
Determinants of the level of trust in a relationship:48 Personality predispositions

ONE
• Characteristic qualities of the trustor Research has shown that individuals differ in their predisposi-
- Disposition to trust tion to trust another (Rotter, 1971; Wrightsman, 1974; Gilles-

TWO
• Characteristic qualities of the trustee pie, 2006). The higher an individual ranks in predisposition to
- General trustworthiness, ability, benevolence, trust, the more she expects trustworthy actions from the other,
integrity, reputation, sincerity independent of her own actions. Similarly, research has shown

THREE
that individuals differ in their predispositions to be cynical, or
• Characteristics of the past relationship between the parties show distrust (Kanter&Mirvis, 1989).
- Patterns of successful cooperation
Psychological orientation

FOUR
• Characteristics of their communication processes
- Threats, promises, openness of communication
Deutsch (1985) has characterized relationships in terms of
• Characteristics of the relationship their psychological orientations, or the complex synergy of

ONE
formed between the parties “interrelated cognitive, motivational and moral orientations”
- Close friends, authority relationships, (p. 94). He maintains that people establish and maintain social
partners in a market transaction relationships partly on the basis of these orientations, such that

TWO
• Structural parameters that govern the orientations are influenced by relationships and vice versa. To
relationship between the parties the extent that people strive to keep their orientations internal-
ly consistent, they may seek out relationships that are congru-

THREE
- Availability of communication mechanisms, ent with their own psyche.
availability of third parties.
Reputations and stereotypes

FOUR
Even if we have no direct experience with another person,
our expectations may be shaped by what we learn about them
through friends, associates, and hearsay (Ferris, Blass, Douglas.

FIVE
Kolodinsky &Treadway, 2003). The other’s reputation often
48 Ferrin (2003). This study provided an extensive laundry list of variables that creates strong expectations that lead us to look for elements of
either directly determined the level of trust in a relationship or were covari- trust or distrust and also leads us to approach the relationship

SIX
ants for the level of trust. attuned to trust or to suspicion (e.g. Glick and Croson, 2001).

65
 CONTENT
Actual experience over time

ONE
With most people, we develop facets of experience as we talk,
work, coordinate, and communicate. Some of these facets are

TWO
strong in trust, while others may be strong in distrust. For
example, in one study of organisational communication, it
was shown that as frequency of communication increases, the

THREE
parties’ general disposition toward the other party decreased
in importance, while organisational and situational factors
(e.g. tenure, autonomy, etc.) increased in importance in the
determination of trust. Over time, it is likely that either trust

FOUR
or distrust context/experience elements begin to dominate the
experience base, leading to a stable and easily defined relation-
ship (Becerra and Gupta, 2003). As these patterns stabilise,

ONE
we tend to generalise across the scope of the relationship and
describe it as one of high or low trust or distrust.

TWO
49 Calculus-based trust develops as we observe the other and identify certain
behavior patterns over time. Parties develop stable expectations about these

THREE
relationships effective business relationships are based on predictability,
reliability, and consistency of behaviour.
50 This up-front commitment by the parties to a course of action, and to the
consequences for non-performance, sets explicit expectations for behaviour

FOUR
that may reduce the fear parties have about the vulnerabilities associated with
working together.
51 If we distrust someone, we seek ways to monitor what he does to ensure that
future trust violations do not occur. Writing about disarmament during the

FIVE
cold war, Osgood (1962) explicitly proposes unilateral steps that antagonistic
parties can take to signal good faith and an intention to build trustworthiness.
52 If the costs and benefits of consistent action are clear to both parties, the
groundwork for CBT may be established. this enables them to interact in

SIX
future encounters with some confidence that despite deep-seated differences,
they will not be fundamentally disadvantaged or harmed in the relationship.

66
 CONTENT
Calculus-based and identification-based trust

ONE
TRUST DISTRUST

TWO
Calculus-based trust (CBT) Calculus-based distrust (CBD)
ì Confident positive expectation regarding another’s conduct ì Confident negative expectations regarding another’s conduct
ì Grounded in impersonal transactions ì Grounded in impersonal transactions

THREE
ì Overall anticipated benefits from the relationship are assumed ì Overall anticipated costs from the relationship are
to outweigh any anticipated costs.49 assumed to outweigh the anticipated benefits.
CALCULUS-BASED

Building CBT Managing CBD

FOUR
ì Behave the same appropriate way consistently (at ì Agree on expectations for work and deadlines as well
different times and in different situations) as penalties for failing to comply with them50
ì Meet stated deadlines ì Agree on procedures for monitoring and

ONE
ì Perform tasks and follow through with verifying the other’s actions51
planned activities as promised. ì Discuss performance expectations and how parties are
being perceived; examine cultural context for behaviours
ì Improve BATNA (Best Alternative To a Negotiated

TWO
Agreement) and make other party aware of it.

Identification-based trust (IBT) Identification-based distrust (IBD)

THREE
ì Confident positive expectations regarding another’s conduct ì Confident negative expectations regarding another’s conduct
ì Grounded in perceived compatibility of values, common ì Grounded in perceived incompatibility of values, dissimilar
IDENTIFICATION-BASED

goals, and positive emotional attachment to the other. goals, and negative emotional attachment to the other.

FOUR
Building IBT Managing IBD
ì Spend time together sharing personal values, ì Seek self-protection and attainment of mutual goals
perceptions, motives, and goals ì Acknowledge areas of mutual distrust

FIVE
ì Engage in processes that permit parties to share common ì Establish safeguards that anticipate distrustful
group membership, common interests, common goals behaviours and afford protection
and objectives, similar reactions to common situations ì Design ways to keep differences in value-based
and situations where they stand for the same values issues from interfering with party’s ability to work

SIX
and principles thereby demonstrating integrity. together in more calculus-based transactions.52

67
 CONTENT
Illustrative examples 53
Implications of this revised view of trust

ONE
Calculus-Based-Trust: A metaphor for the growth of CBT is • Relationships are multifaceted, and each facet represents
the children’s game “Chutes and Ladders.” Progress is made on an interaction that provides us with information
about the other. The greater the variety of settings

TWO
the game board by throwing the dice and moving ahead (“up
the ladder”) step by step. However, a player landing on a “chute” and contexts in which the parties interact, the more
is quickly dropped back a large number of steps. Similarly, in complex and multifaceted the relationship becomes.

THREE
calculus-based trust, forward progress is made by climbing the • Within the same relationship, elements of trust
ladder, or building trust, slowly and step by step. People prove and distrust may peacefully coexist, because they
through simple actions that they are trustworthy and, similarly, are related to different experiences with the other
by systematically testing the other’s trust. In contrast, a single

FOUR
or knowledge of the other invaried contexts.
event of inconsistency or unreliability may “chute” the relation-
ship back several steps—or, in the worst case, back to square • Relationships balanced with trust and distrust are likely
one. Thus, CBT is often quite partial and fragile. to be ‘healthier’ than relationships only grounded in trust.

ONE
Particularly in organisational/managerial relationships,
Identification-Based-Trust: Music is a suitable metaphor for “neither complete lack of trust, nor total trust, nor
IBT: the harmonising of a barbershop quartet. The parties very high levels of affective attachment, nor enduring

TWO
learn to sing in a harmony that is integrated and complex. Each social reliance, nor destructive mistrust and betrayal,
knows the others’ vocal range and pitch; each singer knows are appropriate or positive for organisational purposes”
when to lead and follow; and each knows how to work with the (Atkinson and Butcher, 2003). Particularly in business

THREE
others to maximise their strengths, compensate for their weak- relationships, unquestioning trust, without distrust,
nesses, and create a joint product that is much greater than is more likely to create more problems than solutions
the sum of its parts. The unverbalised, synchronous chemistry (Wicks, Berman and Jones, 1999; Blois, 2003). Similarly,
of a cappella choir, string quartet, cohesive work group, or unquestioning distrust (or even paranoia) can sometimes

FOUR
championship basketball team are all examples of this kind of be healthy, but sometimes perverse (Kramer, 2001, 2002).
trust in action. • Facets of trust or distrust are likely to be calculus-
based or identification-based. Earlier, we defined

FIVE
trust as confident positive expectations regarding
another’s conduct, and distrust as confident negative
53 Lewicki, Roy J. Trust, Trust Development, and Trust Repair (2005) 3-5, In expectations regarding another’s conduct.

SIX
Deutsch, M. and Coleman, P. The Handbook of Conflict Resolution. 2006.

68
 CONTENT
CBT=calculus-based trust
CBD=calculus-based distrust
IBT=identification-based trust
Sixteen relationship types based on dominant trust and distrust elements IBD=identification-based distrust

ONE
CBT CBD IBT IBD Brief Description of the Relationship

1 L L L L Arm’s-length relationship

TWO
2 H L L L High CBT; good working relationship
3 L H L L High CBD; working relationship characterised by cautiousness

THREE
“Instant good chemistry” with the other based on strong perceived value compatibility but limited experience
4 L L H L
(few bands and low bandwidth)
“Instant bad chemistry” with the other based on strong perceived value incompatibility but limited experience

FOUR
5 L L L H
(few bands and low bandwidth)
6 H L H L “high-trust” relationship, based on strong elements of CBT and IBT
7 L H L H “high-distrust” relationship, based on strong elements of CBD and IBD

ONE
“Complex professional relationship”; strong number of CBT and CBD elements, limited experience on identification-
8 H H L L
based elements

TWO
“Love-hate relationships”; high passion AND AMBIVALENCE, characterised by strong positive and strong negative
9 L L H H
attraction to the other; limited experience on calculus-based elements
A necessary service provider”; strong CBT but also strong IBD; maintain an arm’s-length relationship to benefit from
10 H L L H

THREE
the CBT aspects but minimise the IBD elements
“I love you, but you’re not reliable”; strong CBD (which makes us cautious) but also strong IBT (which attracts us to
11 L H H L
the other)

FOUR
12 L H H H Dominant love-hate relationship, with additional elements of CBD and few elements of CBT
13 H L H H Dominant love-hate relationship, with additional elements of CBT and few elements of CBD
Dominant high-distrust relationship, although there are some elements of CBT possible; “very distrusting, but

FIVE
14 H H L H
bounded trusting transactions are possible”
15 H H H L Dominant high-trust relationship, although there are some elements of CBD; “very trusting but takes precautions”
16 H H H H Rich, complex, highly ambivalent relationship; lots of trust and distrust along all dimensions of the relationship

SIX
69
 CONTENT
PART TWO: SECTION ONE:

ONE
THE CONCEPT AN OVERVIEW

TWO
OF MEDIATION OF MEDIATION

THREE
FOUR
ONE
Introduction............................................................................................................................................................................................71

TWO
Definition of mediation.........................................................................................................................................................................71
Mediation is not .................................................................................................................................................................................... 72
Essential foundations for mediation................................................................................................................................... 74

THREE
Respect, empathy and genuineness...................................................................................................................................... 77

FOUR
FIVE
SIX
70
 CONTENT
Introduction public knowledge; the details of any discussions and the results

ONE
of those are rarely made public, although the outcome may be
Definition of mediation publicised if both parties agree. In addition, mediation usually
involves some private meetings between each party and the

TWO
CEDR has devised the following general mediator, in which the mediator commits to preserving the
definition of mediation: confidentiality of information received from one party in pri-
vate, unless given express permission to disclose it to another

THREE
Mediation is a flexible process conducted confidentially party.
in which a neutral person actively assists parties in
working towards a negotiated agreement of a dispute The mediator is a neutral person who assists the parties in
their negotiations, independently and impartially. The me-

FOUR
or difference, with the parties in ultimate control of
the decision to settle and the terms of resolution. diator must have no stake in the dispute or its outcome, nor
be perceived as having an inappropriate link with any party.
Whatever the level of technical or other expertise the mediator

ONE
Mediation is a flexible process. The venue, the date and the brings, he or she is not there to take sides or to make a decision
timing are all matters of choice for discussion between the par- about the merits of the case or the resolution.
ties and the mediator. It is for each party to decide - sometimes

TWO
with the help of the mediator - who should attend in their The mediator actively assists parties in working towards a ne-
team, what issues will be discussed and what outcomes will be gotiated agreement by working hard with the parties, enabling
considered. Not all of those aspects will be discussed before them to widen their perspective, re-appraise their situation,

THREE
the mediation meeting, and all of them can be changed and their risks and opportunities, and to consider a range of possi-
adapted even after the mediation has begun, if it is recognised ble ways of resolving the dispute. The mediator will use nego-
that something different is needed to facilitate progress. tiation and other professional experience, skills and strategies
to assist the parties to negotiate effectively, with a focus on the

FOUR
The process can be designed, and redesigned, to meet the parties’ goal of reaching agreement on acceptable terms.
needs of the parties and the circumstances of the dispute. The
standard commercial model is for everyone to gather in one A dispute or difference can bring parties to mediation. The

FIVE
place on one day, aiming to finish on that day. However, there difference need not have a legal basis at all – it may be a matter
are numerous variations available to suit particular situations. of principle or belief, or involve the need for an organisation to
make progress on improving relationships, internal or external.

SIX
Mediation is conducted confidentially, without prejudice and
in private. Sometimes the fact that mediation is taking place is
71
 CONTENT
The parties are in ultimate control of the decision to settle and Mediation is not ...

ONE
the terms of resolution. The mediator will often have a role in
overcoming deadlock, in encouraging forward thinking and Mediation, even now, can be subject to misunderstanding
even in contributing settlement options or ideas for formu- and misconceptions, which can lead to unnecessary

TWO
lating the agreement. However, it is central to the concept of objections to its use. For example:
mediation that the parties are the decision makers. Effective
mediators use their skill and experience to influence progress Mediation is not a bar to litigation or arbitration:

THREE
and yet, importantly, leave the decision about whether to settle Mediation does not preclude the use of other methods of dis-
and on what terms firmly with the parties. pute resolution, and no one loses any of their accrued rights by
participating in mediation.
Another aspect of the flexibility of the process is that media-

FOUR
tion is not binding unless and until an agreement is reached, Mediation is not mere compromise:
when settlement terms usually become an enforceable con- It is rare for mediations to settle on this basis of compro-
tract. Until that happens, the parties may walk away from the mise, meaning splitting the difference down the middle. The

ONE
mediation at any time, as entering the process itself does not mediator can assist the parties to develop creative options for
bind them to settlement. This together with the fact that the settlement, based on the interests and needs of the parties and
process is without prejudice allows the parties to explore all on a realistic assessment of risks or on agreed objective criteria.

TWO
options freely, hypothetically, and without commitment.
Mediation is not a waste of time and money if it fails:
Finally, mediation is often described as ‘voluntary’. Many medi- If settlement is not reached in mediation, it is usually achieved

THREE
ations are initiated by mutual agreement between the parties in shortly afterwards. The settlement gap will usually be narrowed
dispute. Once a mediation has started, continued participation at mediation through the negotiations and through parties
is always voluntary, in the sense that any party can choose to gaining a greater understanding of the other party’s case and
disengage without adverse consequences. privately reviewing their own case. Mediation almost always

FOUR
tempers aspirations with realism, and movement towards
settlement takes into account the risks of not settling.

FIVE
Mediation is not a sign of weakness:
Lawyers who use mediation do so as an additional service for
clients. It is now a mainstream process for dispute resolution,

SIX
but it is not a soft option for client or adviser. A mediation is a
period of intense negotiation that requires flexibility, concen-
72
 CONTENT
tration, and imagination, as well as other legal and commercial without breaching the rules of natural justice, since a mediator

ONE
skills. It is an intellectual and professional challenge, yet the is not the decision maker.
risks are low and the potential for a successful outcome is high.
Mediation is not counselling:

TWO
Mediation does not prevent parties having Mediators and psychological counsellors share a number of
their day in court – in a way it guarantees it: core skills, and yet the processes are very different and the roles
Mediation guarantees the parties an opportunity to present entirely distinct.

THREE
their case to each other, and to a neutral third party, in a way
that allows them to highlight aspects of particular signifi- Both mediation and counselling can take various forms but, in
cance for them and, if they wish, to show the strength of their general, the mediator preserves a neutral relationship with the
feelings. Mediation gives parties a better opportunity to do parties, whereas the counsellor develops an intense relation-

FOUR
this than a formal trial, where their evidence is constrained by ship with an individual client. The mediator facilitates negoti-
rules, and written witness statements mean that there is little ation of a specific dispute, whereas the counsellor engages in
opportunity for parties to speak except when subject to hostile free-ranging discussion on any topic chosen by the client. The

ONE
cross-examination, or in limited re-examination. In addi- mediator enables agreement to be reached, and the counsellor
tion, the mediation may be the first time that the parties have enables coping strategies to be found. The mediator uses prob-
encountered each other in person since the dispute began, and lem-solving techniques, while the counsellor applies psycho-

TWO
presenting the case face-to-face is often a powerful precursor logical analysis. The mediator acknowledges feelings, whereas
to improved communication, and thus to negotiation and to the counsellor explores and works in depth with emotions.
settlement.

THREE
Mediation is not what managers ‘do all the time’:
A manager often approaches official discussions as a negotiator
or arbitrator and not as a mediator; no matter how reasonable

FOUR
and approachable, they often cannot operate as a neutral third
party. A neutral third party is detached from the problem
and the emotion, and can manage the process of searching

FIVE
for agreement in a way that is different from parties and staff
members, who are involved in the dispute.

SIX
Unlike a judge, a mediator derives authority only from the
parties, and is able to have private discussions with each side
73
 CONTENT
Essential foundations for mediation There are broadly three ways of checking what is confidential:

ONE
• asking the party what can be disclosed
The cornerstones of mediation from the private meeting

TWO
• asking the party what cannot be disclosed
Confidentiality, ownership of the solution by the parties, medi- from the private meeting
ator neutrality and impartiality, and an approach to individuals
• taking the initiative, by identifying specific information

THREE
that demonstrates respect, empathy and genuineness form the
essential basis for the work of the mediator, and underpin the that may be useful to pass on to the other party
whole process of mediation. and asking for permission to disclose it.

FOUR
Revealing confidential information without permission will
Confidentiality damage the mediator’s credibility, and could even end the
mediation.

ONE
The fact that mediation is a confidential process and conducted
‘without prejudice’ is fundamental. The safest path is to:

TWO
Confidentiality is on two levels: • assume that, unless repeated from the documents exchanged
or from a joint meeting, everything is said in confidence
• The entire mediation is in confidence; it is held in and cannot be shared, and the mediator must be given

THREE
private. What is discussed remains confidential and specific permission to reveal something to the other party
the outcome is only publicised if the parties so agree
• use a summary, as a recap for both the party
• No private information shared with the mediator and the mediator, to check confidentiality

FOUR
in a private meeting with one party can be passed at the end of each private meeting
on without the party’s express permission.
• if you are not sure, go back again and check with the
This places a clear responsibility on the mediator to preserve party before revealing something. This will ensure that

FIVE
confidentiality and to treat all information with great care. you do not break their confidence, and also re-emphasise
Once disclosed, confidential information cannot be taken back. to the parties that you will not reveal anything that is
confidential, thus increasing trust and so encouraging

SIX
them to be more open with you in private sessions.

74
 CONTENT
Of course, in order to make progress, a dialogue needs to Ownership by the parties

ONE
take place between the disputants. This may begin with the
mediator acting as a conduit and, in an acrimonious dispute, it One of the strengths of mediation is that the parties have a ma-
might remain so; but in most mediations the parties will come jor input into the process and complete control over the final

TWO
together at some stage and talk face-to-face, and in some this is decision. Contrast this with litigation where the system takes
done on several occasions during the mediation process. over, the parties are side-lined or less central and someone else
determines the outcome.

THREE
Parties will become frustrated or downhearted if there is no
flow of information between them; this preserves confiden- Mediation leaves control with the parties in three key ways:
tiality but limits the scope for progress. This can occur if the
mediator takes the confidentiality of private meetings too • The parties are physically at the heart of the mediation

FOUR
literally and rigidly, and does not seek permission to disclose process. This contrasts the typical mediation where
information. There is a risk, too, that the mediator will take parties are as fully involved as they want to be,
too much responsibility for developing a solution – gathering with the courtroom experience of sitting behind

ONE
information from both sides, never sharing it because that counsel or being isolated in the witness box.
feels safer, hoarding it away and hoping eventually to produce • Participation is voluntary: the parties can pick
an answer that works for everyone. Once the mediator takes their own time and choose what they wish to

TWO
on that role, the parties may abdicate their responsibility to reveal, and they can even leave at any time.
resolve their own dispute, relying too much on the mediator.
The mediator, therefore, needs to find ways to create a dialogue • The parties decide the settlement: although the mediator

THREE
between the parties, helping them to build understanding and manages the process, the parties retain control of the
exchange ideas. direction and pace of the mediation. The mediator’s role is to
help the parties to find their own settlement. The mediator
brings a clear mind to the process, uncluttered by the detail

FOUR
and the emotion in which the parties are often steeped; that
clarity can assist in creating ideas for settlement. However,
the parties need to arrive at their solution at their own pace

FIVE
and in their own way, and the mediator must resist the
temptation to see a solution and push the parties towards
it. The parties rarely reveal all that really drives them and

SIX
why a particular settlement is more, or less, acceptable than
another. A mediator who is wedded to a solution is less

75
 CONTENT
likely to be open to alternative, possibly better, solutions. If the mediator is perceived as being partial, this process will
The mediator needs to believe that the parties know best. be impeded; it is therefore important for the mediator to:

ONE
• be even-handed with the parties; this includes resisting
So, empowering the parties, and leaving them with ownership the temptation to spend more time with an easy-going

TWO
of both the problem and its solution, is central to the process of party when the other appears difficult or unfriendly
mediation.
• ensure that questions are phrased so as not
to appear critical or judgmental

THREE
Neutrality and impartiality • ensure that the mediator’s verbal and non-verbal reactions
to parties’ comments do not indicate partiality.
Neutrality, impartiality and independence are important assets

FOUR
for the mediator. The parties need to understand, both through Mediator neutrality is sometimes challenged by parties asking
explanation and through demonstration, these aspects of the mediator for an opinion or to suggest a solution. There may
the mediator’s role and the benefits they bring. The effective be justification for the experienced mediator to comment on a

ONE
mediator must not merely act impartially, but must be impar- particular issue whilst still retaining a neutral stance. The basic
tial, having learned to put aside assumptions, prejudices and rule, however, is that the mediator should avoid giving their
premature analysis of what matters to these individuals. Parties opinions, since the mediator’s neutrality must be overt and

TWO
often experience it as a relief and a freedom to have someone constantly reinforced to the parties throughout the mediation.
to work with who is truly non-judgmental.

THREE
The mediator comes uncluttered with emotional or factual
baggage about the case; with no vested interest, no position to
protect, no face to save, no feelings to vent. It is a privileged
position, for the parties will eventually see the neutrality of the

FOUR
mediator as a reason to move from their public position, and pri-
vately discuss their weaknesses and real needs with the mediator.
As relationships are formed and trust is built, the parties usually

FIVE
become more relaxed and less defensive, and so become more
open to new perspectives and movement towards agreement.

SIX
76
 CONTENT
Avoiding assumptions Respect, empathy and genuineness

ONE
Mediation is an enabling process. The psychologist Carl
Associated with the mediator’s neutrality is the need to avoid
Rodgers identified three core person-centred attitudes for the
assumptions. Everyone is conditioned by environment, rela-
effective enabler: respect, empathy and genuineness. These

TWO
tionships and experience, and the mediator needs to take care
have a major impact on the mediator’s relationship with indi-
not to allow such influences to have a negative impact on the
viduals and parties.
mediation. For example, stereotyping in relation to gender,

THREE
race, profession, economic status, age, religion, and other fac-
tors is a common basis for making what may be false assump- Respect
tions. The mediator needs self-awareness and concentration in
order to avoid preconceptions that might affect both attitude A party may secretly regard being involved in a mediation as

FOUR
and action. The mediator should aim to treat each person as an an admission of weakness or failure on their part. If the medi-
individual to be valued and respected. ator is able to convey respect and acceptance, it becomes easier
for that person to be open and honest. Respect is relevant at
The mediator will almost always have some background

ONE
two levels of activity, internal and external.
information beforehand and have spoken to the parties, but it
is important to enter the mediation with an open mind and: Your attitude towards people is respectful if you:

TWO
• be aware of the dangers of preconceived • care about their welfare
ideas on the merits of the case • see each person as an individual rather than
• be aware of the risk of being influenced, for example, merely a party in the mediation process

THREE
by the proficiency of a presentation or by personal • see them as capable of determining their own fate
sympathy with one party or individual • assume the goodwill of people, unless and
• be prepared to think and act flexibly, and not until this is demonstrated to be wrong

FOUR
work to a fixed format for the mediation or a • suspend critical judgment;
particular structure for an agreement
• beware of coming to the mediation thinking and respect is demonstrated when you:

FIVE
that you know what the answer is.
• attend and listen actively to a person
• use non-judgmental language

SIX
• communicate accurate understanding

77
 CONTENT
• express reasonable warmth and friendliness Empathy

ONE
• help people to identify and cultivate their own resources
• provide encouragement and support Empathy means a capacity for understanding a situation from
• help parties to work through each stage of the another person’s point of view and conveying that understand-

TWO
mediation process at their own pace. ing to the other. In the course of business activities there is
often pressure to perform, to be right, to defend and to push
Maintaining respect for parties helps to build trust and create your own point of view. However, for a mediator the situation

THREE
an environment in which they are more likely to disclose hid- is different and the focus is on understanding in depth the
den agendas and be willing to tackle sensitive issues. perceptions of the various participants in the mediation. This
demands observation, concentration and imaginative effort on
Respect is difficult to maintain when a person is behaving in ways the part of the mediator.

FOUR
that seem aggressive, manipulative, overbearing, self-destructive
or just irritating. However, respect and acceptance are not the Empathy involves understanding the experiences, behaviours
same as liking or approving. The mediator does not have to agree and feelings of others as they themselves experience them. It

ONE
with values, opinions or behaviour, but must have a genuine demands the ability to put yourself in the other person’s shoes;
interest in communicating with that person. A party’s behaviour not to be the other person, but to experience their situation
probably reflects their feelings and needs at that moment, and the as if it were your own. The ‘as if ’ quality is crucial; you must

TWO
mediator should be tolerant, patient and responsive. remain fully aware of your own perspective while trying to
imagine and understand the other person’s thoughts, feelings
However, respect does not mean that you have to accept or and behaviours from her or his point of view.

THREE
allow behaviour that you or the other party finds completely
unacceptable or which is likely to be destructive to the process, Empathy is different from sympathy. Sympathy is concerned
such as expressions of racial or gender intolerance or other with agreeing with another person’s point of view and being
abusive comments. emotionally involved. Empathy requires a more detached

FOUR
approach, remaining separate and yet accepting, warm and
non-judgmental.

FIVE
Using empathy helps communicate to people that you under-
stand their situation, and is therefore invaluable in establishing
and developing relationships with parties.

SIX
78
 CONTENT
To be empathetic, you need to listen fully Genuineness

ONE
to the content of what is being said:
Like respect, genuineness involves activity at two levels;
• the person’s experience - what has happened, as they see it internally, through being honest with yourself about your own

TWO
• the person’s behaviour - what they are doing, feelings, and externally, through open, spontaneous behaviour
what they have done or not done which does not emanate from an adopted role or persona. By
presenting yourself in this way, you provide a model for other
• the feelings or emotions that arise from, or are

THREE
people, encouraging them to do the same, and thus both devel-
associated with, that experience or behaviour. oping the relationship and increasing the other person’s ability
to take risks in disclosing and discussing difficult issues.

FOUR
You are genuine in your relationship
with other people when you:
• are authentic

ONE
• are spontaneous, but not uncontrolled or haphazard
• remain open and non-defensive, even

TWO
when you feel threatened
• do not over-emphasise your professional status
• are consistent and avoid discrepancies between your values

THREE
and your behaviour, and between what you think and feel
and what you say, while remaining reasonably tactful
• are willing to disclose your own thoughts

FOUR
and feelings, when appropriate.
These core attitudes are developed through openness to feed-
back from others, personal reflection and practice.

FIVE
The communication skills that underpin the mediator’s ability
to develop rapport and show empathy are presented in more

SIX
detail in the chapter ‘Communication skills for effective medi-
ation’.

79
 CONTENT
PART TWO: SECTION TWO:

ONE
THE CONCEPT A PROCESS FRAMEWORK

TWO
OF MEDIATION FOR MEDIATION

THREE
FOUR
ONE
A process with five phases............................................................................................................................................................81
Preparation phase of mediation..............................................................................................................................................81

TWO
Opening phase of mediation..................................................................................................................................................... 83
Mediator’s opening...........................................................................................................................................................................84

THREE
Exploration phase of mediation..............................................................................................................................................87
Problem solving phase of mediation....................................................................................................................................91
Concluding phase of mediation............................................................................................................................................... 95

FOUR
FIVE
SIX
80
 CONTENT
A process with five phases Preparation phase of mediation

ONE
The CEDR process framework highlights five phases of
mediation. Preparation phase of mediation

TWO
There are three aspects to consider in each of the phases of
Preliminary contact and preparation mediation - the relationship with the parties, the process itself

THREE
and working with the content of the dispute.
The mediator will make pre-mediation contact covering:
There is often a lot of work required by mediator, before a
• a briefing about the process
mediation takes place. Sometimes one or both parties are

FOUR
• who is attending uncertain or reluctant, and a skilled and experienced mediator
• who will make the opening presentation and for how long or administrator can provide reassurance, encouragement and
• any previous agreements persuasion.

ONE
• approval of the mediation agreement
• venues, dates, other practical arrangements

TWO
• parties exchange and give to the mediator written
summaries of the case and provide supporting
documents, often as an agreed bundle.

THREE
PREPARATION PHASE OPENING PHASE

FOUR
EXPLORATION PHASE

FIVE
PROBLEM SOLVING
CONCLUDING PHASE

SIX
PHASE
81
 CONTENT
Initial contact Briefing and helping parties to prepare

ONE
Early contact with the mediator needs to leave the parties Pre-mediation contact provides opportunities to cover some or
feeling that they are in safe hands. A confident and reassuring all of the following:

TWO
manner is essential.
• introductions, and for the mediator to build rapport
There will also be discussions about such matters as: • finding out about any mediation experience

THREE
and parties’ expectations
• timetable for mediation
• explaining the process and the mediator’s approach and style;
• venue for mediation that is acceptable to all parties. giving an outline of the process and covering any concerns

FOUR
• discussing authority, who will attend of sufficient
The mediation agreement seniority, and the role of decision makers

ONE
Whatever prior communication takes place, the purpose and • getting an idea of the relationships
terms of any pre-mediation contact should be absolutely clear. • understanding the background and conditions for
Ideally, the mediation agreement or other form of confiden- this mediation; any previous agreement, anything

TWO
tiality agreement should be signed at the outset, so that it is particular about the dispute and, perhaps, what has
established that the conversations take place under the same prevented the parties from being able to agree
conditions as the mediation itself. Even if the mediation
• telling the parties that the mediator may be testing

THREE
agreement has not been signed, the mediator will operate on
the basis of strict confidentiality from the first contact with positions and options as part of the mediator’s role
the parties, and such contact will in any event be regarded as • advising and coaching parties on preparation for
‘without prejudice’ and privileged from later disclosure.

FOUR
mediation; the case summary, how they might use the
first joint meeting most effectively, discussing who will
present the opening statement and for how long

FIVE
• suggesting parties bring, or even exchange, a draft agreement
in a suitable format to be worked on during the day.

SIX
82
 CONTENT
Documents to get in the way of understanding, and prevent the mediator

ONE
from paying full attention to what is happening in the moment.
Parties will usually each prepare a case summary and send it
to the mediator and to each other, by an agreed date before Good preparation will enable the mediator to relax and bring

TWO
the mediation. This summary will normally be two to ten energy and commitment to the process, and help the parties to
pages, and is often a valuable exercise in focusing parties on do the same.
the real issues in dispute. Almost always the summaries will

THREE
be accompanied by supporting documents. Some parties offer,
and some mediators choose to ask for, a confidential paper for Opening phase of mediation
the mediator’s eyes only.
Meeting the parties

FOUR
Each mediator needs to find the right balance between prepar-
ing in sufficient detail to understand the dispute and to be seen The mediator will often provide information at this stage about
to be well informed yet, avoiding being submerged in detail. what to expect from the process, as well as checking on the

ONE
The amount of reading and preparation is a personal choice for parties’ practical and comfort needs. It is essential to give the
each mediator and the parties in each case. parties a sense that they are in safe hands; they will inevitably
have some concerns about the mediation, and it is important

TWO
Some mediators find it helpful to summarise the dispute on that they are met by someone who is calm, confident, warm
one sheet of paper, using a mind map or other technique. and welcoming.
Others ask parties for a list of essential reading, which may

THREE
comprise eight or ten documents out of several files of papers.
Another idea for preparation is to spend time, having read the Initial private meetings
papers, identifying the assumptions you have made, so as to be
able to recognise them and set them aside. At the initial private meetings the mediator is likely to cover

FOUR
the signing of the mediation agreement, confirmation of
Mediation is hard work and preparation is important. Time authority, names by which people wish to be addressed, and
invested in preparation by the mediator and the parties makes any time constraints. It is also useful to flag up the possibility

FIVE
the process run more smoothly, and will probably speed up the of different combinations of meetings, joint and private, and to
journey to settlement. cover anything specific that the parties raise.

SIX
However, over-preparation can get in the way of working effec- The mediator needs to prepare the parties for the first joint
tively as a mediator; it can clutter the mind, allow assumptions meeting, if there is to be one, confirming which party will
83
 CONTENT
make their opening statement first and who opens for each • Keep note taking to a minimum. Taking notes breaks
eye contact and concentration on what is being said. If

ONE
team. Sometimes these initial private meetings are short, while
on other occasions longer initial meetings, or a series of private necessary take time between meetings to write up notes.
meetings, take place before the parties come together. • The mediator sets the scene and sets the tone for the day.

TWO
The first joint meeting Mediator’s opening

THREE
As part of preparation, the mediator should think about where The mediator’s opening has four main purposes:
the parties will sit for the first joint session, perhaps preparing
a seating plan that enables everyone to feel comfortable and, at • to set the tone for the mediation, using

FOUR
the same time, able to speak to the right people. Should parties positive language wherever possible
be next to each other or facing each other, opposite or either • to establish the mediator’s role and authority
side of the mediator? This is important. The room and table • to emphasise the ground rules for the mediation

ONE
may dictate much of the seating, but the mediator needs to
• to begin the dialogue between the parties.
decide on the best layout to encourage communication.

TWO
Other points to bear in mind at the start are: Mediators usually plan a mediator’s opening
in advance. Make your own checklist for your
• Maintain reasonably firm management over the opening, which will probably include:

THREE
proceedings. You are a process facilitator charged
with creating an environment conducive to • introductions and use of names
participation and communication. The parties • the role of the mediator: impartial, facilitating
will look to you to exercise control and run a fair

FOUR
communication and assisting negotiations
process, giving everyone an opportunity to be heard.
• how the mediation might run: timing, flexible
Balance this with being approachable - someone
use of private and joint meetings
the parties can talk to and want to work with.

FIVE
• the principles of: confidentiality and non-
• Use your intuition. No one can script a mediation, and
prejudice; parties coming with authority to
situations will arise that require tact and creativity.
settle; parties are the decision makers.
Show flexibility and demonstrate integrity.

SIX
84
 CONTENT
Whatever opening has been planned, the mediator must be Establishing the mediator’s authority and role

ONE
flexible enough to do something quite different if necessary.
The planned opening might be punctuated to allow space Usually, the parties will have appointed the mediator, so
for dialogue and certainly for any questions; in some cases there is no need for a detailed introduction. It will also have

TWO
the meeting might need to be adjourned or even abandoned been established in advance of the day that the mediator has
altogether. On other occasions the meeting will usefully last no conflict of interest. If a potential conflict emerges during
all morning. The mediator’s opening should be brief, perhaps the mediation it is essential to discuss that immediately; the

THREE
just a few minutes, and yet should establish an environment mediator cannot ignore it, hoping that it will not be discovered
conducive to effective communication, as it is up to the or will not matter, as a possible conflict could jeopardise the
mediator to structure the meeting. A poor opening can have a mediator’s credibility and the parties’ faith in the process.
lasting negative effect on the parties and the process. Properly

FOUR
presented, the mediator’s opening can help to dispel distrust, In referring to the mediator’s role, it is helpful to make clear
increase the comfort level of the parties and begin to promote that the problem belongs to, and is shared by, the parties.
an atmosphere of co-operation. They also share a responsibility for working together to find

ONE
the resolution. Some mediators are specific about the fact that
part of their role is to challenge and test positions, ideas and
Setting the tone for the mediation options. The mediator’s authority is established primarily from

TWO
demonstrating confidence, preparedness, and familiarity with
The mediator has an important role in setting a tone that the process.
encourages participation, respect and productive interaction.

THREE
Ideally, the mediator’s behaviour will become a model for how
parties and others communicate with each other during the Emphasising the ground rules – the principles
mediation. Inclusive behaviours, such as making eye contact
round the table, being responsive to non-verbal cues, and It is usual to recap on the ground rules:

FOUR
making sure that everyone has a chance to check their under-
• The decision makers are expected to take an active role
standing of the process, as well as using a touch of humour,
in the negotiations and to work with the mediator to find
will contribute to an environment conducive to co-operative

FIVE
solutions; the parties have control over the outcome.
working. The mediator’s level of relaxation and energy will
have an impact, creating a sense of purpose that enables pro- • The process is without prejudice, and anything said
gress to be achieved. or seen within the process that would not normally

SIX
be part of disclosure will remain confidential.

85
 CONTENT
• The process is confidential in two ways. What happens up these possibilities, the mediator manages expectations and
at the mediation is confidential to the parties and

ONE
minimises the element of surprise for the parties.
the mediator, unless the parties agree otherwise; and
private meetings between the mediator and each At intervals throughout the opening, the mediator should give
party are entirely confidential unless the mediator

TWO
parties the chance to ask questions, thus establishing by exam-
is given permission to pass on information. ple the importance of clarity and understanding.
• Nothing is finalised or binding until the agreement has

THREE
been reached, possibly documented and signed. This Overall, the opening should be positive and confident so that
gives parties the freedom to explore ideas and options the parties feel that they are in good hands.
without having to commit to them. It introduces the
‘what if...’ approach, that is so valuable in mediation.

FOUR
Parties’ opening statements
• Confirm that all parties have stated that they
come with authority to settle the dispute. After the mediator’s opening, each party usually makes an

ONE
opening statement. It will have been agreed upon with the
Outlining the day – the process parties in advance who should go first – normally the claimant
- and which member or members of the team will make the

TWO
The mediator might encourage the parties to make full use of presentation.
the opportunity the mediation provides. It is a unique chance
to bring an end to the dispute and any related proceedings, and Whoever delivers the opening statement, the mediator might:

THREE
to agree on solutions not available elsewhere. It is sometimes
important for the mediator to manage expectations by saying, • remind the parties of the agreed or suggested length
for example, that the process may be tough and will be hard of time for each party’s opening statement
work, and that parties may not get all they want but need to

FOUR
• ask the listeners to attend carefully to what is being
find a solution that they can all live with. said, suggesting that they jot down any thoughts
and saying that there will be time for further
It is often useful to paint a picture of a mediation as being very exchanges once the opening statements are made

FIVE
flexible with no rigid procedure – of spending time in teams
in private without the mediator, in separate meetings with the • encourage the parties to speak directly to each other.
mediator moving between parties, with all parties together

SIX
round the table, or of having meetings between different If it is clear from the parties that there are strong emotions
combinations of selected members of the teams. By flagging attached to the dispute, the mediator may wish to acknowledge
86
 CONTENT
this openly. The mediator should not be afraid of strong emo- tions, a timetable for private meetings is necessary. Whatever

ONE
tions; an opportunity to express and explain strong feelings the mediator decides, the parties should leave the initial joint
may be helpful to the party and to the process. meeting feeling confident that the mediator will handle the
process productively.

TWO
Whilst each presentation is being made, the mediator needs to
direct attention to the speaker; this means taking as few notes
as possible and maintaining eye contact with the speaker. It is Exploration phase of mediation

THREE
also useful to scan the table occasionally - someone may need a
brief, probably non-verbal acknowledgement that their frustra- The exploration may begin towards the end of the opening
tion or disagreement has been noted. meeting, when the mediator might try to establish a working
agenda for the mediation, perhaps using the flipchart. Some

FOUR
The mediator should manage the presentations, by inviting common ground might be identified, as well as the areas
each party to speak while listening and keeping a gentle eye on remaining in dispute, and what has to be covered to reach an
the time, and thanking each for their contribution. agreed outcome. However, even where the parties have worked

ONE
together with the mediator in this way, each party might also
After the opening statements, the mediator might encourage want to discuss confidential aspects with the mediator in the
the parties to continue talking, and allow that dialogue to run safety of a private meeting.

TWO
for as long as it is constructive. It might be useful to establish
some sort of agenda for the mediation, perhaps simply listing It may sometimes be tempting to move straight from the
with the parties what areas will need to be tackled in order to opening into bargaining, especially where the parties are keen

THREE
reach a resolution. This can be a first step towards co-operative to do so, or where a matter seems straightforward. However,
problem solving. The process is flexible; the mediator might the exploration phase has a number of important purposes,
decide to continue in joint meeting with parties together, or including identifying the underlying interests that will inform
have a short comfort break before reconvening, or break for parties’ decisions about settlement.

FOUR
private sessions with each party.
Negotiations prior to the mediation will sometimes have bro-
At the end of the initial joint meeting, it might be useful to ken down altogether, and parties need a mediator’s help to clar-

FIVE
remind the parties about the additional level of confidentiality ify what they want to achieve and where they might best start
in the private sessions. The mediator should decide whom to or restart. The mediator’s role here, as so often, is to normalise
see first when moving into private sessions, and announce this such a review and give permission to parties to approach the

SIX
with confidence either at the joint meeting or to each party in case in a different way.
their own room. Sometimes, especially in multi-party media-
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 CONTENT
Typically, the exploration phase will cover • Checking the quality of past communication,
and improving on it: the mediator can help parties

ONE
a number of meetings and involve:
provide information to each other and gain a
• A conversation with each party and their team: clearer picture of how each sees the situation
about the past, the present and the future; about

TWO
• Uncovering hidden agendas: finding out a party’s
facts as they see them and their feelings; about a motivation is valuable for a mediator - even a party’s
range of topics: legal, commercial and personal adviser will occasionally be surprised by what

THREE
• Further building of trust: the mediator will want emerges from a client. Mediators must be alert to
to build on and enhance the rapport established, in cues and clues that could help them to discover
order to gain each party’s confidence that the mediator underlying needs, thus leading to conversations
about what might realistically meet those needs

FOUR
is unbiased and can be trusted with confidential
information, including discussions about weaknesses, • Working on possible strategies for settlement: at
although not usually in the first private meeting the exploration phase the mediator may begin to work

ONE
• Opportunities for expression of emotion: a with the parties on sketching out the overall shape of
mediator will build trust by patiently recognising a possible settlement, without going into details at this
and acknowledging each party’s feelings stage and keeping open possibilities for alternative
routes to settlement. Later, individual elements of an

TWO
• Identifying the important issues: it is easy for parties agreement may have to be developed at different speeds
to lose sight of the real issues where a dispute has
become clouded and complicated; the mediator should • Preparing for reality testing and revisiting risk

THREE
try to understand what really matters to the parties assessments: it is essential for the mediator to have good
rapport before seeking to test out weaknesses in a party’s
• Distinguishing each party’s needs from their wants case or discuss risk assessment in any detail. Settlement
and claimed rights: mediators should encourage each

FOUR
almost always involves adjustment of positions based on a
party both to review their own needs and interests and reappraisal of risk. Flagging up reality testing as a possible
also to reflect imaginatively on what other parties might activity for later in the process (probably in bargaining, if
need. Developing a sense of perspective, and helping the parties get stuck) can legitimise it and manage parties’

FIVE
parties to do the same, is a vital skill for a mediator expectations. Some mediations settle without the need for
such difficult conversations, because the parties reassess
their risks in private, and the mediation moves towards

SIX
settlement with the mediator assisting in other ways.

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 CONTENT
Using joint and private meetings The mediator might encourage parties to hold or

ONE
to stay in a joint meeting for a range of purposes.
Mediators should weigh the potential advantages and dis- Joint meetings provide opportunities for:
advantages when deciding when to work in joint or private
• everybody to work together and show commitment

TWO
session. There is no fixed pattern. Mediations may comprise
of anything from a continuous joint meeting to a series of • building relationships between parties
private sessions with the parties never meeting. The norm is a • seeing the impact on the others of a particular idea or topic

THREE
mixture of both, but the balance needs to be judged according • saving time on information sharing
to the parties’ approach to the dispute and each other, and not
• dealing with technicalities or practicalities
because of a mediator’s own preferences or fears about working
in one or other way. • sharing a sense of progress

FOUR
• clarifying what has been agreed and what is left to work on.
Whilst retaining overall responsibility for the process, medi-
ators should be prepared to give the parties choices. A party Private meetings give each party a chance to tackle

ONE
might be resistant to meeting an opponent in a joint meeting sensitive and difficult issues freely with a trusted
because of the difficult history of the dispute. The mediator mediator. They allow the mediator to understand
might encourage the party that it might present an opportunity individual needs and interests through more in-depth
conversations, and offer the parties time to:

TWO
for progress, by promising tight chairing of the meeting and a
clear purpose and structure. Ultimately, it is for the parties to • reflect on what is happening and what they have heard
agree to such a meeting, and not for the mediator to insist.
• consolidate their thinking

THREE
Joint meetings allow everyone to see and hear what is hap- • recover from a difficult or disappointing
pening and choose how to contribute, and the mediator’s opening meeting; relax
neutrality is easily observed and accepted. For a mediator,

FOUR
• talk frankly with the mediator and each other
joint meetings can seem risky; the unexpected will happen, about all aspects of the case, trusting that the
calling for skilled management of the people and the process. mediator will not take any confidential content
Also, parties are unlikely to disclose weaknesses across a table, to the other party without permission

FIVE
discussions can easily get stuck or break down, and frustration
• plan, prepare, rehearse or receive the
and tempers can rise. On the other hand, joint meetings are
mediator’s assistance as a coach
often an efficient use of time and an effective way of conveying
• consult those outside the mediation

SIX
information between parties and developing ideas.
• save face by deciding to change stance in private.
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 CONTENT
However, it would be naïve for a mediator to expect parties to spent first with the other team, thus checking any immediate

ONE
disclose a great deal of sensitive information in a first private reaction.
meeting. Parties are usually cautious at this stage, and will
often continue to assert the strength of their opening position Furthermore, when working privately with one party, the me-

TWO
as set out in the joint meeting. diator risks being seen as that party’s ally, through empathetic
remarks or behaviour, or being perceived as having taken the
The mediator must earn the parties’ trust. Through appropriate other side’s view as a reaction to raising uncomfortable topics

THREE
language and conduct, the mediator has to reassure each party or by reality testing.
that it is safe to confer that trust. Later, parties will usually be
increasingly open and candid in the first private meeting.
How to explore in private session

FOUR
In a first private meeting, the mediator might remind parties
that it is confidential and then ask an open question to allow When moving from room to room, take care with any notes
the party to talk about whatever they choose. In later meetings, you make. These may be confidential, and numbers especially

ONE
it might be important for the mediator to have an idea about can be read very easily, even upside down. Similarly, make sure
what to discuss, while always remaining open to what the party that glass doors or windows in private rooms do not expose
regards as urgent. The parties dictate the agenda, and medi- flipcharts to the others walking past.

TWO
ators must be flexible in order to accommodate the needs of
• Reinforce confidentiality at the
the parties. Aim for a conversation rather than an interview; a
beginning of private meetings
prepared list of questions is more likely to be an inhibitor than

THREE
to help a mediator find out from the parties what really matters • Use simple, open questions and leave enough
and what might work. time and silence for the answers
• Try to sit near the party, and prompt the party
Time management is a consideration in private sessions,

FOUR
to speak freely, by putting them at ease
especially early in a mediation. One team will leave the joint
meeting, at which the other team has usually made a robust • Listen attentively, observing content and delivery, words
statement of their case, and then have to spend time waiting and body language. Any inconsistency between the

FIVE
while the mediator is with the other team. This can cause two might be significant and merit gentle enquiry
tension, and the mediator must try to manage this, perhaps
by giving them an indication of how long they will be waiting, • Make sure that the airtime balance allows the
party to speak much more than the mediator

SIX
possibly identifying a constructive task for them or perhaps by
taking the party to their room and explaining that time will be
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 CONTENT
• Probe a few topics, but be prepared as confidential, while also taking the initiative to identify
to leave some issues for later

ONE
information that may prompt progress – even if only a small
• Watch time, and remember the other party – you step - and asking for permission and discretion to use that
have a responsibility to them too, and can explain information when appropriate.

TWO
that everyone needs to feel part of the process
in order for settlement to be achieved Exploration requires the mediator to be patient, perceptive and
persistent. The exploration phase is unlikely to be concluded at
• Summarise towards the end of the session, and use

THREE
the end of one private meeting with each party. Usually more
the summary to reinforce confidentiality and check needs to be unearthed and understood both by the mediator
what, if anything, you may take to any other team and between the parties before it is time to move into the
• If there is a useful and specific task for that party to do, ask bargaining phase.

FOUR
them to do it, but not merely “I want you to think about your
case some more” which is unlikely to generate any progress
Problem solving phase of mediation

ONE
• Ask a final open question – “What else would you like
me to know at this stage?” or similar. If it is urgent and In mediation, the parties work towards a negotiated agreement
important, pursue it a little further, but be prepared assisted by the mediator. In a sense the whole mediation is a

TWO
to agree to park it and move on to the other room, negotiation, and negotiation takes place throughout the medi-
where an equally important conversation awaits you ation process. The problem solving phase of a mediation starts
• Perhaps estimate a time for your return. when the parties are ready to discuss settlement terms in some

THREE
detail. Broad ideas and structures turn into potential solutions
and figures, and non-monetary outcomes are developed into
Ways of checking what is confidential practical arrangements. These detailed negotiations continue
until the concluding phase, when the agreement is reached, or

FOUR
Throughout the mediation, the safest route for less experienced the next stage is planned if full agreement proves elusive.
mediators is to treat everything as confidential unless specifi-
cally told otherwise; however, this can be limiting. There may It is not easy to give definitive guidance to the new mediator

FIVE
be occasions where parties will allow you to regard the whole about when the problem solving phase begins or should begin.
conversation as able to be disclosed; the mediator needs to be One or more parties may wish to make some firm proposals;
alert to the risks of this approach, checking specifically any the general pace may feel quicker; all parties may say they have

SIX
information that seems personal, sensitive or pre-mature. More had enough discussion in principle; and risk assessments may
frequently, it is useful for the mediator to treat everything have been adjusted. The mediator may feel that parties need to
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 CONTENT
talk now in specific numbers, and a change of pace is required, The work done in the exploration phase to understand the

ONE
with some extra energy injected into the discussions. Bargain- people – motivations, personalities and pressures – will now
ing must start at some time, and progress can be frustrated as pay dividends. As always, it is not only what you do as medi-
much by starting it too late as too early. ator but also how you do it that will be significant. During the

TWO
problem solving phase there is a range of possible roles for the
mediator, depending upon the needs of the parties.
Stages of the problem solving phase

THREE
The mediator might need to be:
While it is not easy to give guidance about when the bargain-
ing can begin, it is possible to set out guidance on the different • an observer of effective inter-party negotiations
stages of the problem solving phase. These are generally as

FOUR
• a facilitator taking offers and counter-offers between rooms
follows:
• a coach on how problem solving might
Working in principle: talking in general terms, or painting the best be conducted and progressed

ONE
big picture before starting to negotiate on the details, can help • an active deal maker who significantly influences the
parties overcome the early stages of reluctance to make a move: negotiations, although from an impartial stance.
• formulating and communicating first offers

TWO
The use of effective negotiation skills by the mediator to assist
• managing subsequent offers and the parties in the problem solving phase are set out in more
information exchange tactically detail in the later chapter titled ‘Using negotiation skills as a

THREE
mediator’.
• handling apparent deadlock: deadlock may be
unexpected, anticipated, or even triggered deliberately.

FOUR
Use of private and joint meetings
While some mediations seem to proceed fairly smoothly to
settlement, far more enter a difficult stage of apparent dead- The same process choices are available to the mediator as in all
lock. This needs to be normalised when it occurs, or perhaps in other phases, and decisions must be made to suit the subject,

FIVE
advance, even by acknowledging the possibility at the opening the parties, their advisers and the inter-party relationships.
meeting. Unfortunately, when dealing with a situation of
deadlock, the first move to break it may be seen as weakness by Private meetings are often the expected norm, and enable the

SIX
the others, or by the party making the move. The mediator can mediator to work actively to help each party to focus on a set-
help by assisting parties to formulate and make a first move. tlement that will meet their interests. It is sometimes a painful
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 CONTENT
struggle for parties to move from entrenchment to resolution. The mediator may be able to help the parties resolve their

ONE
When positions have been firmly articulated prior to and dispute without reality testing, but it is often a key to progress.
during the early part of any mediation, there is often a sense of Parties can become blinkered and fail to recognise the advan-
loss over abandoned positions and perceived loss of face, both tages of settling even on somewhat uncomfortable terms. A

TWO
between parties and even within a team. disinterested third party may be able to bring clarity of vision
in an objective and non-judgemental way. It is not the job of
In private meetings during the problem solving phase, the the mediator to impose a solution or a particular view, and

THREE
mediator uses a range of techniques, which might include: the parties are free to reject any new insight as they choose.
However, by turning a one-dimensional and self-interested
• lending perspective and shaping proposals perspective into a picture containing risks and common inter-
that meet each party’s needs ests, much can be accomplished by a skilled mediator.

FOUR
• being a sounding board, while parties test
out positions and begin to realise that they There is a temptation to assume that parties only want to
may not achieve all they had hoped for bargain through the mediator’s shuttle diplomacy, using

ONE
private meetings. It feels safer and gives the mediator a sense of
• prioritising parties’ concerns and aspirations control, perhaps, especially as early offers frequently generate
• understanding and checking offers, testing how they might anger at the other party’s apparent unwillingness to be realistic.

TWO
be received from what is known of the other party’s views, More experienced mediators often bring parties together
discussing presentation and giving advice on timing during the problem solving phase, although not necessarily for
the first offers.

THREE
• identifying items of different value: one party may
place little value or face little cost on an item which The potential disadvantages of working only through private
may be considered very important to another sessions include:
party, such as an apology or explanation

FOUR
• The parties and their advisers feel a loss
• checking the BATNA: the best alternative to a negotiated of control over the negotiations
agreement, as against the proposed settlement on offer
• Bargaining may be more protracted

FIVE
• reality testing: holding up a mirror to a party’s than if conducted directly
position or proposal and asking how realistic it is
• The mediator becomes merely the messenger, and can
• managing responses to disappointing even be manipulated to convey offers that the parties

SIX
offers received and conveyed. would be unwilling to give directly to each other

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 CONTENT
• Important messages lose their force when delivered • Make sure the settlement is the parties’ own, even if you
by the mediator rather than the party think you know what might be best for them; effective

ONE
settlements are ones that the parties have arrived at
• Parties become frustrated at being kept apart, and lose
themselves and chosen to agree. One purpose of mediation
any mutual willingness to work co- where one exists
is to provide an alternative to having an outcome thrust

TWO
• help each party to revisit their risk analysis in the upon the parties. The settlement needs to satisfy the parties,
light of what they have learned at the mediation not the mediator, who may never be told why a certain
agreement emerges as acceptable. Also, if the mediator

THREE
• enable parties to exchange bids face-to-face, if they want to.
pushes for a particular solution, there is a risk that a party
The same settlement can be justified entirely differently by who later regrets signing up to it will see the mediator
each of the parties. An apology to one may be an expression as having been negotiating on behalf of the other side.

FOUR
of regret to the other. The mediator can make use of these • Respect confidentiality; make sure that you have
differences, creatively but honestly, to help parties view options permission to disclose facts or offers. Parties will need
positively. to make disclosures in order for negotiations to develop,

ONE
and if you feel that certain information ought to be
Remember that parties may simply want to come to an shared to make progress, ask for express permission
agreement for peace of mind, certainty, and an escape from to do so, and respect their decision if they decline.

TWO
the prospect of formal investigation; only they themselves can
decide how much that is worth. • A standard mediation agreement requires that those
present have full authority to settle. Despite this, problems
with levels of authority quite often emerge. Handle any

THREE
Some potential problems and how to avoid them such apparent breach of the mediation agreement with
sensitivity, in private, as it may be seen as a challenge to the
• One party may try to use the mediation process party’s credibility. Encourage telephone communication

FOUR
merely to find out how vulnerable the other party with someone with a higher authority level. However,
feels, then decline settlement at mediation and make you may need to be robust, for if the problem is not
a challenging formal offer shortly afterwards. If you sorted out it may be seen as seriously disrespectful by the

FIVE
suspect such motivation, suggest a joint session and other party and may prevent any potential settlement.
let the party handle the negotiation themselves.

SIX
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 CONTENT
• Many mediations reach a point when it seems as though
there is no way forward. The mediator might revert to a
Concluding phase of mediation

ONE
discussion about process, rather than pursuing progress The goal in mediation is usually to achieve a negotiated
on the content, saying – What shall we do now? or What agreement, but not at any cost, and certainly not for the benefit
is tomorrow going to be like? Keep focused on the process

TWO
of the mediator. Mediation is not about keeping a mediator’s
and, whatever happens, maintain energy, creativity and success rate intact. More than achieving a settlement, the
a sense of momentum. Settlements often emerge when, mediator’s aim should be to ensure that there is significant
only an hour or two earlier, progress seemed impossible.

THREE
improvement in understanding between the parties, and that
• Settlement panic may occur towards the end of a any settlement proposed is practical and sustainable.
mediation of a long-running dispute, just as settlement
becomes a possibility. You may even need to work Every settlement should therefore meet the following criteria:

FOUR
with a party on how they will deal with the gap that
settlement will leave in their lives, helping them to create • it satisfies the parties
a picture of a tolerable future without the dispute. • it deals with all the issues in dispute, unless the parties agree

ONE
to isolate some issues to be dealt with in another forum
• it is workable

TWO
• it minimises the possibility of future dispute.
In order to assist the parties through the process, the mediator

THREE
needs to be as energetic, clear-headed and creative in the final
hours of the mediation as at the start.

FOUR
Settlement terms

Sometimes an agreement emerges to the surprise of the me-

FIVE
diator, perhaps even on terms that seem unfair to one party.
However, the mediator will never know the whole story, and
will rarely discover everything that leads the parties to settle.

SIX
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 CONTENT
The mediator is primarily concerned that the agreement satis- • check if the mediator is needed to help with any post-
agreement arrangements, although this is rarely necessary

ONE
fies the parties, is workable and will stick. However, whenever
there is any sign of uncertainty on either side, the mediator where agreement is reached, documented and signed.
should check with both sides that they are happy to complete

TWO
the deal without a period for further reflection. The purpose of the settlement agreement

Very rarely, a mediator may feel that an emerging deal is A settlement agreement should be a clear and reasonably com-

THREE
dishonest or illegal. This presents an ethical dilemma, quite prehensive record of what has been agreed, signed by or on
different from questions of fairness. Ethical issues are discussed behalf of each of the parties. If a further detailed agreement is
in the final chapter. contemplated, its broad shape should be set out, and reference
made to any standard form agreement to be used as a template.

FOUR
Practical and workable solutions Normally a settlement agreement has the status of a contract,
which is enforceable in the event of breach. Alternatively the

ONE
It is part of the mediator’s role to ask questions designed to settlement agreement may stand as the definitive source of the
encourage parties to ensure that everything necessary for a terms agreed.
workable agreement is covered.

TWO
In some employment disputes, where the issue is about future
So when an agreement is close to being behaviour and management of relationships, it is still impor-
reached, it may be useful to: tant to record what is agreed as a reference point or action

THREE
plan, even if not enforceable in law.
• consider with the parties any possible
obstacles to its being workable

FOUR
• reflect on lessons learned from the dispute Contents of the settlement agreement
which might help to prevent future problems,
especially for an on-going relationship Every settlement agreement is different and there is no safe
checklist of what should be included. The mediation agreement

FIVE
• summarise the terms, perhaps in a joint is not automatically superseded by the settlement agreement,
meeting with advisers, to ensure the terms are so that provisions about not calling the mediator as a witness
comprehensive and cover the topics discussed and about confidentiality will continue to bind the parties

SIX
• plan for further mediation in the event of difficulty and the mediator, except insofar as varied by the subsequent

96
 CONTENT
settlement agreement. The parties may decide to repeat such • The written document accurately reflects the terms
agreed: an assumption will normally be made that

ONE
provisions so as to have them conveniently in one document.
this is so, but it can be specifically reinforced if the
The following points may be relevant, but will not always apply: advisers think it necessary. It can also be recorded that
the settlement supersedes all previous agreements, if

TWO
• The parties: the names of the parties appropriate (remembering that this would include the
may need to be clarified. terms of the mediation agreement, including confidentiality
and mediator protection from giving evidence).

THREE
• Recitals: specify the circumstances in which the agreement
was reached, reciting the dispute, any court proceedings • Future dispute resolution processes: can be specified,
and the context of the mediation. They might also such as a return to mediation before starting any new
action or enforcement proceedings, in the event of any

FOUR
spell out facts upon which agreement is based, in effect
warranting their truth and justifying reliance upon them, difficulty in the performance of the agreed terms.
thus minimising any risk of alleged misrepresentation. • Signatures and date: should be added,

ONE
• Heads of agreement: set out the terms at the heart of with the capacity of signatory.
the settlement. The terms may be simple or complex,
depending on the dispute. Sometimes advisers insist that Drafting the settlement agreement

TWO
each paragraph is initialled for certainty of agreement,
and it is standard for any amendment to be initialled. The drafting of the settlement agreement is normally the
• Confidentiality: sometimes parties agree on an responsibility of the parties. There is a role for the mediator to

THREE
addition or variation to the confidentiality signed up to contribute and to check that all points are covered. New issues
in the mediation agreement, in an attempt to prevent almost always arise at this stage. What seemed like a minor
disclosure in a high-profile case. Sometimes there issue may suddenly acquire greater importance and difficul-
ty. This may require further negotiation or even exploration,

FOUR
is a positive agreement to publicise an outcome.
and thus further mediator activity, with parties separately or
• Mediator not to be called as a witness: this provision is in together.
the mediation agreement. It is intended to prevent any party

FIVE
from calling the mediator to give evidence as to the terms of Broadly, nothing in law demands that a settlement agreement
the settlement or as to what went on during the mediation. be in writing – but the standard mediation agreement requires
this formality. A written agreement provides clarity about what

SIX
has been agreed, and thus reinforces the safety of the medi-
ation process. Drafting the settlement agreement can seem a
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 CONTENT
daunting task at the end of a long process. It might be tempting ally cover the whole sum a solicitor may charge, and the client

ONE
to gloss over details and assume agreement on certain points, may have to pay any shortfall from the damages, depending on
but the lawyers will know that generalisation and ambiguity the solicitor’s terms of business. This can give rise to a negoti-
can create difficulties later, and may even have been the cause ation between solicitor and client over what, if any, deduction

TWO
of the earlier dispute. The mediator has a role in keeping mo- might be made.
mentum and energy going during this final stage.

THREE
In complex cases or where a particular form of agreement will Where settlement is not reached
be needed, the mediator might have suggested that the advisers
prepare and even exchange before the day a draft settlement Cases do not always settle. If the case does not settle, the me-
agreement, leaving the details to be included when agreed, or diator may feel deflated or disappointed, as well as tired after a

FOUR
the advisers might suggest this themselves. This will save some long day.
time and make sure that difficult points are not overlooked
when everyone is tired, as well as incidentally encouraging a Remind yourself that:

ONE
settlement frame of mind in advance. Drafting tasks can also
be assigned during the mediation day, separately or together. • it is the parties who have the power and
choice over whether to settle

TWO
• negotiations may continue after the mediation,
Litigation costs and funding and you should offer to assist

THREE
Where court proceedings have started before the mediation, • a high proportion of mediations that are
any settlement agreement must deal with the legal costs of not settled settle soon afterwards.
those proceedings. Parties are usually asked to bring with them
details of costs to date and estimated costs to trial, to inform Depending on the strength of feelings at the end of a not-yet-

FOUR
their risk analysis and risk assessment at mediation. settled mediation, it is often good to bring the parties together
into a joint meeting to review progress, identify what has been
Sometimes parties agree that each side bears their own costs; achieved and what remains outstanding, and discuss next

FIVE
but if one party is to pay the other’s costs, these must be agreed steps. Occasionally a concession or other movement will be
as a global figure, or adjourned for later agreement, subject to made at such a meeting which leads to further discussion and
detailed assessment by the court if not agreed. If adjourned, settlement.

SIX
the party will not be sure of the final figure they are to receive.
Costs awarded at trial to be paid by the other party do not usu-
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 CONTENT
It is important to keep the mediation going in

ONE
some way, by suggesting any of the following:

• that the mediation is merely adjourned

TWO
• that the mediator will contact the parties after a few
days to discuss how things look on reflection
• that separate meetings are arranged by

THREE
appointment with each party
• that parties define a programme of action,

FOUR
request specific information or obtain specialist
advice on areas of disagreement
• that negotiations continue on specified issues

ONE
• a further mediation, even with a change of mediator
• a different dispute resolution process, such as a neutral

TWO
evaluation of a disputed aspect or principle.

Even if the parties agree to none of these options specifically,

THREE
it is important to contact each party or their advisor soon after
the mediation. The mediator has an active role in supporting
the parties in on-going negotiations and in finding new routes
to settlement.

FOUR
FIVE
SIX
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 CONTENT
PART TWO: SECTION THREE:

ONE
THE CONCEPT THE ROLE OF THE MEDIATOR

TWO
OF MEDIATION AND OTHERS

THREE
FOUR
ONE
TWO
The mediator as coach..................................................................................................................................................................101
The mediator’s style and approach......................................................................................................................................103

THREE
FOUR
FIVE
SIX
100
 CONTENT
The mediator as coach Clients and their advisers need to feel capable and confident

ONE
in order to make best use of the mediation. From the very first
contact, the mediator has an opportunity to set the tone for the
Coaching and modelling mediation. Flexibility and alertness are essential. The mediator

TWO
needs to make participation as easy as possible, by minimising
Throughout the mediation process, the mediator acts as a surprises and potential embarrassments and maximising the
coach to the parties, enabling them all to participate as fully comfort zone for everyone. The mediator should model relaxa-

THREE
and effectively as possible, while strictly preserving neutrality tion and confidence with the process, optimism, and collabo-
and confidentiality. The mediator coaches directly, through rative, practical problem solving. Thus the mediator coaches by
sharing experience, making process suggestions, and managing setting an example, by modelling a productive approach as well
the parties’ expectations and, indirectly, by setting the tone, as more directly by giving information, feedback and process

FOUR
maintaining energy and purpose, and leading by example in suggestions.
terms of attitude and approach. This aspect of the mediator’s
role is described below in relation to the five phases of media- The coaching continues as the mediator greets the parties on

ONE
tion. the day of mediation and settles them into their private rooms
prior to the (usual) opening joint meeting. By making process
management suggestions, the mediator coaches the parties in

TWO
Preparation phase how to use the day most productively.

Before the mediation, mediators will speak to the parties di-

THREE
rectly or, sometimes, through their advisers. The mediator may Opening phase
need to assist the advisers in how to prepare their clients for
the day, what documents to produce and in what form, the op- The mediator is likely to have used initial telephone contact to
tions they have for the opening statements, and the format and discuss the purpose, the length and, perhaps, the tone of the

FOUR
possible shape of the mediation. Sensitivity and creativity are parties’ openings, and who might make the opening statement.
important at this early stage; in some cases, for example, it may Some further guidance may be useful during the initial private
be appropriate to enable parties and their advisers, especially meetings, so that each party feels confident to join in fully with

FIVE
those new to mediation, to visualise themselves in the process the initial joint meeting.
in order to prepare well; the party or adviser can be helped to
imagine participating on the day. Visualising is a classic coach-

SIX
ing technique that can be used by the mediator.

101
 CONTENT
Exploration phase tiate towards settlement. The mediator is a neutral person, ena-

ONE
bling the parties to find a solution to their problem. Mediation
During the exploration and the problem solving phases, the is not a journey towards the mediator’s solution, and high-pres-
mediator will assist in the tactical exchange of information. sure selling of a mediator’s idea for settlement undermines the

TWO
The mediator should aim to provide appropriate opportunities integrity of mediation. As in all negotiations, the harder the
for face-to-face dialogue, and also to take the initiative during parties in mediation have worked, the greater their sense of
private sessions to encourage timely exchange of information, achievement in reaching a settlement and the greater will be

THREE
whilst being scrupulous about preserving confidentiality where their commitment to making the settlement work.
parties do not give permission for disclosure. In addition, the
mediator, whilst remaining impartial, may coach the parties to The role of the mediator as a negotiation coach is covered in
communicate in ways most likely to have a positive impact. more detail in the later chapter, ‘Using negotiation skills as a

FOUR
mediator’.

Problem solving phase

ONE
Concluding phase
The role of the mediator as a coach in the problem solving
phase is often critical. Mediators need to use their under- In the CEDR mediation model, nothing is binding until

TWO
standing of negotiation styles, techniques and tactics, to assist committed to writing and signed by the parties. Settlement
parties in shaping the framework of the agreement, and in terms should usually remain tentative and open until all parties
presenting general and specific offers in a way most likely to agree the complete package, with the elements of a potential

THREE
be attractive to the other party, addressing their concerns and deal developed, often at differing speeds, ready for inclusion.
interests. Mediators must exercise their judgement when en- Late adjustments are more likely to be tolerated if the mediator
couraging the parties to exchange information. The mediator ensures that the deal is built gradually and seen as provisional
should be alert to parties who wish to withhold information, until finalised. The mediator must be prepared for the unex-

FOUR
at least for a while, and to control the timing of disclosures or pected to arise, even when recording the agreement. It may be
offers in order to protect their negotiating position. Through- necessary to return to bargaining or even exploration before
out, the mediator must preserve the parties’ confidences, finally concluding.

FIVE
and remain impartial as to the level of settlement and other
outcomes, and in both cases must be seen to do so. When settlement has been reached and the agreement is being
drafted, the mediator needs to exercise particular caution,

SIX
It is important for the mediator to be perceived always as acting especially if skilled at legal drafting. It is important at all stages
in the interests of all parties equally when helping them nego- of the mediation to distinguish coaching, reviewing options
102
 CONTENT
and providing guidance about the process, from giving specific The mediator’s style and approach

ONE
advice on the merits or what might be a suitable outcome.

Facilitative or evaluative - or both?

TWO
After the mediation
Over the last two decades there has been much debate about
If the parties do not settle, the mediator has an important role two main approaches to mediation: facilitative and evaluative.

THREE
in helping parties to leave the door ajar for further negotia- These terms were used to describe two styles, one perceived
tions. Offering process suggestions and a structure for taking to be less interventionist than the other. In current practice,
things forward can leave the parties with some hope and such a distinction is simplistic and ignores the breadth of
a sense of possibility. Sometimes this even triggers further the mediator’s role, and the range of techniques available to

FOUR
settlement discussions on the day. On some occasions it will mediators, even within the same mediation. Facilitative and
be enough to tell the parties that the mediator will telephone evaluative styles are best regarded as describing the two ends
tomorrow or in a few days; at other times it will be appropriate of a spectrum of intervention styles, rather than as defining

ONE
to undertake some more formal planning. separate models.

TWO
Skills and qualities of a good coach Mediator impartiality

As in other coaching contexts, the mediator as coach needs to: Neutrality, impartiality – or, as sometimes characterised,

THREE
multi-partiality - is a key component of a mediator’s role. All
• establish rapport and gain trust
mediators know that they need to avoid:
• recognise effective behaviours
• being judgemental

FOUR
• ask useful questions
• taking sides
• give constructive feedback
• jumping in too quickly
• motivate behavioural change
• giving advice.

FIVE
• use care and courage – balancing support
and challenge for the person Where a mediator is perceived to be judgemental about
• apply theory to practice personal, technical, legal, or commercial agendas, it is easy to

SIX
• operate as a colleague with all participants, recognise the potential threat to mediator neutrality, and to the
rather than as a performer or competitor. mediator’s relationship with the parties.
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 CONTENT
The mediator’s expertise in the field or the area of law is often a For a range of reasons, the mediator may be tempted to offer

ONE
topic for debate. It is essential that the mediator has the respect an opinion on an issue or on the case overall, especially when:
of the parties. Certainly, the mediator needs to understand
the dispute; and it may be easier to probe the weaknesses of a • the parties seem difficult or intransigent

TWO
party’s position if the mediator has knowledge of the technical • the progress towards settlement seems very slow or stuck
aspects. However, there are dangers in using expertise of this • the mediator has run out of ideas
kind without a full commitment to the mediator role. Good
• the mediator has lost neutrality

THREE
mediators have to be versatile and adept at picking up complex
technical issues quickly; and it is excellent mediator skills • the mediator takes an active dislike to a party
and competence with the process that are the key to mediator • one or more of the parties asks the mediator for a view.
effectiveness.

FOUR
It is at these moments that you, the mediator, must hold
The role is neutral in that the mediator, with no stake in the your nerve and not take the easy way out. Avoid allowing
outcome, supports progress towards a resolution created and your frustration to lead to you to be adjudicative – instead:

ONE
owned by all parties. However, the mediator is not a detached
observer. • explore more
• summarise, review or reframe

TWO
The parties have appointed a mediator because they have
recognised that they need help to resolve their differences, and • find out the parties’ evaluations
they often have high expectations of the chosen neutral. • test their evaluations robustly, in private

THREE
Mediation is hard work for everyone. The mediator needs to • ask the parties what they want to do.
take time to absorb the emotion, the facts and the arguments,
and to think through strategies. The mediator must also work

FOUR
to keep the relationships productive and the process safe, for
example by maintaining confidentiality, and bringing energy to
the process, appearing as fresh late in the day as at the start of

FIVE
the mediation.

SIX
104
 CONTENT
The process is flexible The mediator has an active and proactive role

ONE
Mediation is a flexible process and can be adapted to suit Progress is made in most mediations through the parties’
different circumstances and parties. Individual mediators reassessing their risks, and the mediator often has an active

TWO
will, with experience, develop their own style and use of the role in helping them to do so. Facilitating a re-evaluation of
process. the issues that seem to be blocking agreement is a strenuous
process. A mediator must use advanced interpersonal and

THREE
communication skills, as well as those of process management
The parties decide the outcome and problem solving, and a willingness to enable rather than to
dictate. The mediator has to be both patient and robust.
It is central to the philosophy of mediation that, unlike arbi-

FOUR
tration and litigation, a neutral third party does not impose a A robust approach will undoubtedly be needed when:
decision upon the parties. This can cause experienced experts
and managers some difficulties as mediators, as they are used • handling multiple issues

ONE
to giving their views and opinions and may assume that this is • overcoming emotional deadlock
what parties require from them. • re-examining options for co-operative solutions
• offering reality testing

TWO
The mediator should ensure that parties come to mediation
fully aware of the parameters of the mediator’s role, and of the • reviewing the alternatives to reaching an agreement.
responsibilities of the parties. In mediation, the parties must

THREE
look to their own advisers for legal and other expert advice, Timing is very important; such interventions are demanding
rather than to the neutral third party. of the parties and their advisers and they may be met with
resistance, especially if reality testing is introduced too early in
the process.

FOUR
FIVE
SIX
105
 CONTENT
Handling multiple issues Re-examining options for co-operative solutions

ONE
Often the parties to a dispute have become swamped in the The mediator needs to be alert to cues, clues and hints from
intricacies of their claim. It is often helpful to the parties to the parties, both verbal and non-verbal, so that all possibilities

TWO
undertake the exercise of highlighting the key aspects of the for settlement can be considered. It may be important to press
dispute in a short case summary. In addition, a third party the parties to take a further look at ideas or proposals, in order
coming fresh to the dispute is in a good position to assist the to maximise opportunities for finding a resolution. Sometimes

THREE
parties to clarify the issues between them. Where there are a it is appropriate for the mediator to join in the search for a
number of issues, the mediator can help the parties to develop workable solution by adding his or her own ideas to those of
an agenda in the early stages of the mediation. Later, the the parties.
mediator can work alongside parties, or the parties and their

FOUR
advisers can work privately, to cluster claims, prioritise and The skilled mediator is one who helps the parties reach a
give different weighting to different aspects, based on strength settlement that they firmly recognise as their creation, avoiding
of argument and other criteria. This work might enable the over-persuasion, coercion or, more often, by taking too much

ONE
mediator to identify some common ground. ownership of the problem and its resolution.

TWO
Overcoming emotional deadlock Offering reality testing

Either party may be so incensed by the dispute that they A mediator will frequently need to work with the parties and

THREE
become irrational, and may not see the reality of their situation their advisers on risk assessment and re- assessment; checking
or hear the reasonable predictions of their advisers. A mediator and re-evaluating with them their positions, presumptions and
who has built good rapport and trust with each party may calculations.
be able to challenge them privately on their views, by careful

FOUR
questioning and other reality-testing techniques. Care should One or more of the parties may have pursued an inflated posi-
be taken to talk through each issue, including their adviser’s tion for so long that it becomes the party’s actual expectation
opinions and the other party’s position. A change of surround- or belief. In these circumstances, testing assumptions, good use

FIVE
ings can sometimes help in these difficult situations, perhaps of questioning, persistently exploring unexplained inconsisten-
working in a different room or going outside for some fresh air. cies, and coaching parties to be realistic are all an essential part
of the mediator’s repertoire.

SIX
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 CONTENT
Reviewing the alternatives to reaching agreement Mediators who over-evaluate or who engage in ENE

ONE
or ED as part of a mediation risk the following:
Parties will frequently tell the mediator that they intend to pro-
ceed or continue litigation or arbitration. It can be very power- • Loss of neutrality: the evaluator might be
perceived as having a bias towards one party,

TWO
ful to hold up a metaphorical mirror for the parties to see the
effect of walking away from the negotiations and giving up on and the other party’s co-operation and trust may
trying to find an acceptable settlement. The mediator can work be diminished in any on-going mediation.

THREE
with the parties to ensure they have done a full appraisal of the • Loss of party ownership and responsibility: the essence
implications of time, cost, management input, and all the other of mediation is that the mediator controls the process and
factors that will flow from continuing with the dispute. the parties control the outcome. Making recommendations

FOUR
and giving views on the merits are likely to diminish
the parties’ sense of control over the outcome.
Other processes can sometimes
work well alongside mediation • Resumption of adversarial relationship: the

ONE
recommendation, ENE or ED will, or will appear to,
Occasionally, both parties genuinely believe they are in the favour one party and be seen as a vindication of their
right to the extent that this proves a total barrier to progress. In position, which may lead that party to become entrenched

TWO
such circumstances, another process might be needed where a and approach the mediation in an adversarial way.
view expressed by an independent third party might assist. • Confusion about use of information imparted
confidentially: if the change in mediator’s role comes

THREE
Other processes that can work alongside mediation include: after confidential information has been conveyed, the
parties might feel at risk or exposed, and it might even
• non-binding recommendations
seem like a breach of the trust hitherto established.

FOUR
• early neutral evaluation (ENE)
• Loss of face: the recommendation, ENE or ED might
• non-binding expert determination (ED).
be hard to accept, and involve significant loss of
Once parties have received an indication as to the way a judge, personal or professional face from one or other party.

FIVE
arbitrator or expert would see their point of view, they can
adjust their approach and, with the assistance of the mediator,
they can then negotiate and work towards crafting a solution

SIX
from their new starting point.

107
 CONTENT
Requests for an evaluation or recommendation

ONE
Occasionally, a mediator will be asked by one or more party
formally to make a recommendation or to express an opinion

TWO
about settlement. Also, especially as time-limited mediation
becomes more common in some sectors, the mediator may be
called upon more frequently to be a deal maker or quasi-adju-

THREE
dicator.

This handbook provides a basic framework for mediation

and a safe starting point for new mediators, and offers only

FOUR
the following guidance on how to respond to such a request:

• ensure that the parties understand the

ONE
mediation process, their role, and the normal
role of the mediator within it, then,
• if any issue requires evaluation, suggest that the parties

TWO
agree to obtain the evaluation from another neutral
before, during or after the mediation, as appropriate.

THREE
A mediator recommendation can be an effective tool for settle-
ment; but only with the full agreement of the parties, with clear
ground rules set and agreed, and with the recommendation
delivered privately to each party in a structured, planned and

FOUR
managed way. This is not something to be undertaken lightly,
and it is not a technique recommended by CEDR for use by
new mediators.

FIVE
SIX
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 CONTENT
PART TWO: SECTION FOUR:

ONE
THE CONCEPT COMMUNICATION SKILLS

TWO
OF MEDIATION FOR EFFECTIVE MEDIATION

THREE
FOUR
ONE
Reflecting, paraphrasing, reframing and summarising...........................................................................................111

TWO
Use of questions................................................................................................................................................................................. 114
Challenging............................................................................................................................................................................................ 117

THREE
Other mediator skills and techniques............................................................................................................................... 119

FOUR
FIVE
SIX
109
 CONTENT
The importance of communication skills in mediation 54
The effective mediator must create an unthreatening and con-

ONE
structive environment that enables trust and understanding to
The term ‘communication’ covers a multitude of skills and be built - party with party, and party with mediator. Being sen-
processes. What follows is a broad survey of some of the sitive to the significance of words and actions makes it possible

TWO
important tools, with a focus on the fundamental skill of active to open or reopen blocked or broken lines of communication
listening. and help parties to talk. Many of the communication skills will
be innate or already learned, and there may be other skills to

THREE
The effective mediator enters the process with an open mind: learn or to use more fully. The skill descriptions that follow are
intended to enable you to increase your awareness and your
• about the case – with no rigid views on the ability to use the skills well as a mediator.
merits, the weaknesses and strengths

FOUR
• about the people - avoiding stereotyping people
on the basis of gender, social or professional Rapport Building
background, age, culture, race or otherwise

ONE
Central to the effectiveness of the mediator is the ability to
• about the parties’ priorities – without assumptions establish relationships of confidence and trust with others.
about what motivates and matters to the parties Developing rapport is an important skill.

TWO
• about the outcome – with no fixed idea
of what the solution should be. The depth of rapport that you achieve has impact on:

THREE
Developing the ability to work with others impartially is a • the extent to which the parties trust you
skill in itself. All human beings try to make sense of the world and are willing to talk to you
by relying on limited information, past experience, precon- • parties’ perception that you have been
ceptions and assumptions. As a mediator, it may be useful

FOUR
listening and understand them
preparation, after reading the papers and speaking to the
parties, to ask yourself what assumptions you have made and • the quality of information that the parties give you and
what views you have formed. By acknowledging some of the the level of understanding of the parties that you achieve

FIVE
preconceptions and conclusions you have reached, you may be • the degree of progress that parties believe
better able to set them aside and keep an open mind during the is possible with you as mediator
mediation.

SIX
• how accurately you can identify parties’ priorities.
54 Communication skills are discussed also in Part 1, Section 2, page 23.

110
 CONTENT
Use of silence and minimal verbal prompts Reflecting, paraphrasing,

ONE
Silences or pauses may occur because a party is confused,
reframing and summarising
anxious or upset. In these circumstances, it is even more

TWO
important to keep quiet and to give the party time and silence. Reflecting
Used with suitable non-verbal behaviours, silence shows that
feelings are recognised, understood and accepted. Reflecting is a term used to describe the technique of playing

THREE
back to a person what that person has just conveyed to you. It
Especially in the early stages of a mediation, the mediator can be likened to holding up a mirror. In many contexts, there
should ideally speak little, giving the parties a chance to speak is often considerable emphasis on the intellect and a relative
much more. One tool to encourage this balance is the use of denial of the importance of a person’s emotions and feelings,

FOUR
minimal verbal prompts; these invite the party to go on with although in some cultures more than others. By noting and
what they are saying, by showing attention and involvement appropriately reflecting the emotions and feelings, you can
without halting the flow. convey to a party that you understand and appreciate the situa-

ONE
tion as they perceive it and recognise how they feel.
Minimal verbal prompts, such as Yes ... ; Go on ... ; Mmm ... ;
Uh-huh ... ; And then? ... ; I see ... ; Tell me more ... , obviate the So, reflecting is used to:

TWO
necessity for further comment or questioning from the media-
tor, allowing the party to continue uninterrupted. • acknowledge a person’s emotional response to a situation
• help that person clarify his or her feelings about a situation

THREE
• provide a means of checking your understanding of what
you have heard or sensed about feelings or impact.

FOUR
To pick up emotional cues effectively you need to observe
carefully the party’s non-verbal behaviour as well as listening
to the words used. A person’s body posture, facial expression,

FIVE
level of eye contact and vocal qualities, change with his or her
emotional experience. In order to reflect back a full picture,
you need to monitor the emotional tone while continuing to

SIX
note the verbal content. It is often more difficult to find the
words to reflect the feelings than the factual content.
111
 CONTENT
Reflecting can be achieved by simple phrases such as: A paraphrase should be non-judgemental, and should not

ONE
introduce interpretations or your own thoughts, nor should it
You are saying that you are angry ... repeat parrot-fashion what the person has said.
It seems that you are worried ...

TWO
You are feeling ... about ... Paraphrasing can be used to:

or sometimes by a question: • demonstrate that you are listening attentively

THREE
• check that you have accurately understood what has
So are you frightened that ... ?
been said - this helps to prevent miscommunication
Have I got this right, you’re feeling ... ? and false assumptions, which can then be corrected

FOUR
Sometimes it can be helpful to make a • show that you recognise, acknowledge and
space for reflecting, by saying: accept the thoughts of the party without making
a judgment about what you have heard

ONE
May I stop you for a moment to check • help defuse anger and cool down a crisis
that I’ve understood ... ?
• help you to remember what has been said

TWO
Reflections, in whatever form, should be brief and focus en- • break through most listening blockages and enable
tirely on what you have gleaned from the party rather than any the listener to refocus on what is being said
thoughts or beliefs of your own.

THREE
• provide an opportunity for the party to hear
their own message more clearly. This can lead to
Paraphrasing further exploration and often the development
of a fresh appreciation of the issue.

FOUR
Paraphrasing is briefly stating in your own words the essence
of what you think someone has just said. Paraphrasing should be used frequently during a mediation.
A paraphrase should be based only on what you have heard

FIVE
Examples of phrases introducing a paraphrase include: or understood; it is often effective when delivered in a slightly
tentative manner, to give the party the opportunity to correct
So what you’re saying is ... you.

SIX
What happened was ...
You are telling me that ...
112
 CONTENT
Reframing There is some risk that ownership of and responsibility for the

ONE
reworded statement might shift inappropriately from the party
Reframing is changing the words used or the way in which to the mediator. The mediator should involve the party as fully
ideas are presented, so as to allow the situation to be viewed as possible in the reframing, and certainly the mediator needs

TWO
differently and more positively. to check that the rewording is acceptable to that party before
conveying it to the other party, if that is permitted.
Reframing can take several forms:

THREE
Reframing is a technique that clears the path for progress.
• taking the sting out of language, Enabling the parties to see things differently can encourage a
detoxifying or depersonalising it shift in positions and some flexibility, often leading to a break-
through to settlement – although such changes do not always

FOUR
• interpreting actions from a different perspective – for
example, focusing on what is needed for the future take place instantly.
rather than what has not worked in the past

ONE
• presenting claims or proposals in a different Summarising
way, so as to be more palatable
• rewording demands made by one party of another; A summary draws together the main threads of what a person

TWO
for example, the idea of making an apology may has said. It is useful to clarify a lengthy or elaborate explana-
be rejected in principle, whereas a party may be tion, or to check progress before moving on, or to identify an
prepared to voice an expression of regret. underlying theme which can sometimes provide new insights.

THREE
The summary should not be the mediator’s interpretation
Examples of reframing include: of what a party has said, but should draw on the party’s own
words and be recognisable to the party as an accurate account.
Party: I want £50,000. When summarising it is important to allow the party to correct

FOUR
Mediator: So money is important to you? or add to the summary.
Party: He’s a liar and a cheat.
Mediator: So you feel misled and it’s hard for you to trust him. The benefits of summarising include:

FIVE
Party: I assess that I have a 75% chance of winning. • it shows you have been listening attentively
Mediator: So you have a 25% chance of losing? and are concerned to understand what the

SIX
Party: They write very poor reports. party thinks and feels about the situation
Mediator: So you want the reports done differently in the future?
113
 CONTENT
• it allows you to check your perception of the challenging questions would not be appropriate before a party
situation and clarify what you have heard

ONE
is ready to trust you with that level of information or exposure.
• it may link and bring some order to confused
and fragmented thoughts and feelings Types of question that can be helpful include:

TWO
• it gives feedback to parties about what they have Open questions encourage wider discussion of the current
said, and can confront them with conflicting or situation and facilitate ideas for change and options for action:
contradictory thoughts, feelings and ideas

THREE
How do you react to what they say?
• it is a way of focusing on particular issues, and
can help parties to begin making decisions about What do you think are the likely consequences?
priorities, what needs to be tackled first, or what What suggestions do you have?

FOUR
concessions or proposals they are prepared to make. Why is that important?

It is particularly important to summarise at the end of each A well-formulated open question might elicit a very closed

ONE
private meeting, as a safe way of enabling you to check what response. If this happens once, try again; if it becomes a pat-
may be conveyed to the other party and what must be kept tern, then consider whether something is inhibiting effective
confidential. It can sometimes be helpful for party and media- communication and tackle that first. Perhaps you have missed

TWO
tor to make joint notes on paper or perhaps on a flipchart. an important non-verbal cue; perhaps the party has unmet
physical or other needs or perhaps silence or some form of
acknowledgement is more appropriate than a question.
Use of questions

THREE
Hypothetical questions allow parties to play with ideas and
Appropriate use of questions is essential in mediation. How- test out options without having to commit themselves:
ever, questioning is a tool that must be used sensitively, and

FOUR
What if the other party said they were unhappy about that?
different forms of questions will be appropriate at different
times. Open questions are particularly useful in the explo- Just supposing they offered that?
ration phase, while closed questions are more appropriate What would happen if ... ?

FIVE
when checking and summarising and in the later stages, and What would it look like if you could ... ?
hypothetical questions are used at any stage for trying out
ideas. Timing and context are very important and need to take

SIX
account of the listener’s level of trust; for example, probing and

114
 CONTENT
Closed questions seek very specific and precise information Personal reaction questions which encourage

ONE
or facts. expression of thoughts and feelings:

Closed questions are useful for checking and clarifying: In what way has this situation affected you?

TWO
How do you react to the possibility of
What date did you agree for the delivery? not getting what you hoped for?
How long was it before they told you about that?

THREE
Where did you meet last time? Probing questions ask a party to develop an answer further:
How much was the contract worth? Can you tell me a bit more about how that happened?
What makes you say that?

FOUR
However, if used inappropriately or too often, closed ques- What exactly do you have in mind ... ?
tions can limit progress. A series of closed questions can leave
parties feeling bombarded and that their perception of the Asking for examples encourages the person to be specific:

ONE
situation is not important. Of course, it is possible for a party
to change a closed question into an open one by saying, for I’m not clear about what you meant by that,
example, Yes, but ... and then giving a lengthy explanation. could you give me an example?

TWO
Tell me about the last time that happened?
When as a mediator you are dealing with information and
facts, it is also important to acknowledge that there can be Focusing helps to keep the discussion on the party’s priorities:

THREE
emotional consequences to the outcomes of legal and commer-
cial disputes - concern about redundancy in the workforce, loss What would you like us to consider first?
of face, disappointment in a personal crusade, or some other Which is the most important aspect of this for you?
fear of or hope for the future.

FOUR
Clarification enables you to check that you
Other useful forms of questioning, which have understood what has been said:
serve particular purposes, include:

FIVE
Do you mean that ... ?
Imperatives, which are not strictly questions but have an inter- Can I check that I have got this right?
rogative effect because they invite answers:

SIX
Tell me about the way in which that was decided?
115
 CONTENT
Prefacing the question with a paraphrase or reflection Asking the other person to rephrase the question for

ONE
allows you to acknowledge and check what has just you can be encouraging. An apparent reluctance to
been said before moving on to new ground: answer may be because your question has not been
understood, or there may be some other reason:
You said that you would not be prepared to con-

TWO
sider that option, so I wonder if ... ? Would you like to put it in your own words?
You have told me how angry you are about this, What do you think I’m really asking you?

THREE
so is it realistic to think in terms of ... ?
Types of question that are probably unhelpful, include:
Checking for meaning when the parties are
together, this type of questioning enables each Leading questions, which belong in cross-examination. They

FOUR
party to hear that they have been understood: are less appropriate for mediation because they try to lead the
party towards the mediator’s own answer.
What did it mean to you when X said that?

ONE
Can you say what you understand by what X said? At best, you might be seen not to be taking account of
the party; at worst, you will be seen to be taking sides:
Giving advance information about what you are going

TWO
to do gives the other person time to prepare: A right solution here is to do X, isn’t it?
Don’t you think it might be better to ... ?
May I ask you a question?
You wouldn’t want any further delay, would you?

THREE
It would help me to understand this if you told me ...?
Leading questions seek to impose the questioner’s view upon
Rephrasing the question, when your first the recipient.
question has not been understood:

FOUR
Multiple questions, which pose more than one question at a
Let me put it another way ... ? time and can lead to confusion about which question to answer
or, for the questioner, about which answer fits which question:

FIVE
What happened on Thursday and what did
you think when she first phoned you?

SIX
Would you be able to get a job elsewhere and
how would you feel about moving?
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These examples are multiples of two. It is not uncommon to Challenging

ONE
ask three, four or five multiples in one question. Similarly, the
questioner may ask one question and give some alternative A challenge, in the context of mediation, questions the
answers - all of which come from the questioner’s perspective validity of a statement or behaviour, asking for explanation

TWO
and take little account of the listener. Questions are often or expansion, for example. It may be an invitation to a party
multiplied for fear of the following silence or in an attempt to to reassess their behaviour or reconsider their position. In an
improve on the first formulation. As in the use of silence, part important relationship, such as that of the mediator and party,

THREE
of the skill, having asked a good question, is in knowing to wait challenging can only be effective if it is used carefully and
and be quiet, allowing time for the answer. with good rapport. It is important when challenging to keep
your role firmly in mind, and to check the appropriateness of
Some reminders and suggestions relating to questions: your motives against your role. It may be inappropriate for

FOUR
the mediator to challenge a party at a particular time or on a
• Aim for a conversation rather than an particular issue and, in any case, the right to challenge has to
interview or interrogation be earned by demonstrating respect and empathy throughout

ONE
• If open questions are being closed down by the the process.
party then something may have been missed
and something else may be needed You may find it useful to explain, perhaps in your opening, that

TWO
part of the mediator’s job is to challenge positions, assumptions
• Have some ideas for question areas, perhaps, but avoid and options, as this will help the parties to move towards a
preparing a list of questions – this can be a distraction, workable settlement. Your assurance that you will do this with

THREE
and you may miss what is being said. A good mediator all parties will allay fears that such challenges indicate that you
builds a conversation in response to what parties say are taking sides.
• It can be helpful to explain your reasons for
Challenging can enable parties to develop new understanding

FOUR
following a particular line of questioning, rather
than risk baffling or irritating the party and awareness. It can help the mediator and the parties to:

• Trust a good question, and leave an • see things more clearly

FIVE
answer-sized gap for a response • get a fuller picture
• Whatever question you ask, listen and respond to the answer. • gain alternative insights
• identify implications

SIX
• change perceptions; develop a new outlook

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• see the situation from another’s point of view - Have you thought that having done that ... may happen?

ONE
• get a more objective view • Unwillingness to modify behaviour or change:
• question their own assumptions - You said ... so you seem to want to stay with the present
• examine discrepancies and inconsistencies. situation ...

TWO
Failure to challenge may: A challenge is also an important tool for reality
testing, discussed elsewhere in the handbook. Such
• prevent progress

THREE
a challenge may be in the form of a question:
• falsely indicate agreement or acceptance
of a position or point of view • So what I am hearing is that you would rather go to
court at an estimated cost of USD than apologise to X?

FOUR
• ignore discrepancies, evasions and inconsistencies
• be patronising, by assuming that someone is not able to • So let me get this clear ... You are no longer going
hear an alternative view or countenance ideas for change to need the kind of expertise X has to offer?

ONE
• compromise your own integrity. A challenge must be justifiable and carefully
constructed. When challenging, you should:
Challenging a party or other participant in mediation is appro-

TWO
priate when there appears to be a block to progress. • be as specific as you can: at best, it is difficult to
respond to a vague challenge or a generalisation; at
A challenge may be useful when parties display: worst it can cause offence and increase the block

THREE
• use empathy: “I can see that you feel really
• Discrepancies, evasions or inconsistencies:
strongly about this; do you have any ideas
- You said ... now you seem to be saying ... about how to overcome the problem?”

FOUR
- You seem unwilling to talk about ...
• be tentative: “What thoughts do you have about why that is
• Distorted interpretations of experiences, happening?” rather than “Don’t you see it is because you are ...”
behaviour or feelings:
• offer the opportunity for a new perspective:

FIVE
- You’ve described ... as being ... ; could it be that ... ? “How do you think X would feel about ... ?”
- You seem to be assuming that ... ; could you be wrong? “What other ways are there to look at this?”

SIX
• Failure to recognise the consequences of behaviour: • avoid protecting the parties (or yourself) from
a challenge which needs to be made

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• build on strengths rather than emphasise weaknesses: Other mediator skills and techniques
focusing on failures makes it more difficult to change. A

ONE
challenge that concentrates on the positive can enable Other important mediator techniques, which are dependent on
parties to work on areas where the probability for success the core communication skills outlined above, are covered in
is relatively high. Look for personal and other resources on

TWO
other chapters of this handbook. These include helping parties
which to build, not expecting everything to change at once: to develop wider perspectives, reality testing, coaching, prob-
“Despite your disappointment, it sounds as though you see lem solving and negotiation, and all from an impartial stance.
some future in ... which worked well before; is that right?”

THREE
• deal with defensiveness: it is not surprising that people
sometimes react strongly against being challenged; it Working with emotions 55

requires effort and courage to take a fresh approach and,

FOUR
sometimes, a degree of humility. It is helpful to give the It is important for a mediator to be able to work with emotions;
person challenged some reason to reconsider and move: to recognise, accept and acknowledge emotion in others, and
“I want to give you a chance to think through the possible to manage their own feelings.

ONE
implications of that, so that you can see if there is anything
else we should be working on. What would happen if ... ?”
The parties
• be open to being challenged yourself: an open

TWO
atmosphere, in which parties feel free to challenge There is emotion in every mediation; parties feel strongly about
the mediator, will facilitate progress. You might, for their case. Whether these feelings are controlled, suppressed
example, invite parties to let you know if there is anything

THREE
or exploding to the surface, it is important that the mediator
that confuses them about what you are doing. recognises, copes with and, where necessary, manages each
party’s expression of emotion. This does not mean shutting out
their feelings - far from it, for pent-up emotion can be a serious

FOUR
obstacle to progress. Mediation can offer parties a ‘day in court’
and provide catharsis for past grievances, which is sometimes
an important element in the success of the process.

FIVE
Emotion that is expressed sincerely can put new colour,
meaning and depth to the spoken and written word, and the

SIX
55 Managing emotion is discussed in Part 1, Section 2, page 31.

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expression of strong feelings in mediation can be a positive family and work routines are structured, perhaps without our

ONE
force. Venting of emotion is often the precursor to progress. realising it, to prevent our losing face. For example, in the
However, the challenge for the mediator is that emotions workplace, budgets tend to be pitched high so that final costs
channelled or managed ineffectively can have a negative effect, come within the forecast. Forecasts of results of legal cases tend

TWO
particularly if expressed in joint meetings. The mediator may to reflect this, too, although there is always the judge or jury to
wish to pre-empt emotional outbursts, especially where the blame if the outcome is not as forecast. In the home, there is
atmosphere is tense, by acknowledging that there are strong often a need for us to find ways out of situations for partners,

THREE
feelings around the table. parents or children, without loss of face for them or ourselves.

Any outbursts may just be posturing, an attempt by one party Parties in dispute frequently reach deadlock because they have
to influence or compel the other, or even to test how well the become entrenched in a position from which they can see no

FOUR
mediator copes with the outburst. The mediator as process escape without loss of face.
manager will need to intervene if an exchange becomes
destructive in a joint meeting, and yet should do so in a way The mediator needs to be sensitive to such

ONE
that acknowledges the positive, when possible, and saves face dilemmas and to develop techniques for finding
for everyone. It is for the mediator to judge how far to allow a face-saving solution, perhaps by:
free expression and off-loading, and to decide when to exercise

TWO
control. In extreme cases, the mediator may have to talk to a • obtaining the other party’s understanding and co-operation
party – in private - if their behaviour seems likely to damage • preventing a party from crowing over victory
the mediation; this should be done initially with empathy and • the careful, natural use of wit or humour

THREE
a willingness to understand what underlies the behaviour,
• finding a ‘win’ to ease the pain
becoming firmer only if that approach does not work.
• focusing on the positive intention behind
The safest, although not always the most effective, place for an an individual’s behaviour

FOUR
emotional outburst is in private. If the mediator plans, with the • showing how new information affects the situation
agreement of the parties, an opportunity for emotions to be • restating or reframing the situation in different terms
expressed more publicly, it may be helpful for the mediator to

FIVE
coach a party in preparing what they need to say in a way that • emphasising the opportunities an agreement opens up
is likely to be productive. It may also be helpful to prepare the • rehearsing a party through what will follow the
other party to listen calmly and respond respectfully. Fear of mediation; how he or she will relay the outcome

SIX
losing face is a powerful and driving emotion shared by human to board members, family or others
beings, and not restricted to particular cultures. Many of our
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• leaving parties and their advisers alone to consider There may also be other reputations at stake. Participants in
offers and counter-offers in private, returning later

ONE
mediation may feel more vulnerable and exposed than in court
to discuss whether and how to convey the offer. proceedings. Personalities used to leading a case will inevitably
find themselves in a different role, as part of the team with c

TWO
Occasionally, mediators may need to save face for themselves ients present. There is little opportunity for great orators or
- an open acknowledgement of a mistake with an apology is cross-examiners at a mediation, so a participant’s pride or
usually a good option. The decision maker in the team usually self-esteem may be challenged by the new role required of

THREE
needs the support and approval of the rest of the team. A party them.
will probably be reluctant to settle if dissenting members of
the team are likely to comment afterwards that it was a poor Occasionally, an adviser will have become emotionally
deal. The mediator needs to be sensitive to the mood and the involved in a case, either with the client or with the cause, per-

FOUR
dynamics within a team, and to work with the decision maker haps believing a trial is needed to establish a precedent. Where
to achieve a solution through co-operation within, as well as client and adviser disagree, the mediator will need to handle
between, teams. that disagreement delicately.

ONE
The lawyers, experts and advisers The mediator

TWO
You might expect that lawyers, experts and other advisers The mediator has feelings, too. We all have values, attitudes,
come to the mediation without emotional involvement. Yet beliefs and views, conditioned by our life experience. Working

THREE
they, too, may be resistant or apprehensive for a range for impartially requires that we accept the perceptions and feelings
reasons, and under significant pressure. For example, not all of others, putting aside our own, and this can be emotionally
advisers are persuaded that mediation is a desirable method demanding. In order to interact in a way that is genuine and
of settling disputes. A lawyer may have little experience of responsive, we need to recognise our own values and how they

FOUR
negotiating with their client present. A few see mediation as may affect our reaction to other people.
challenging their own negotiation style and competence. For
others, settlement options may involve contradicting earlier Mediators often experience impatience because parties seem

FIVE
advice to their client. intransigent, or because, being outside the problem and its
contingent worries, the mediator may see a solution long be-
The person who initiated the mediation may have done so fore the parties, whether the solution is one that will eventually

SIX
despite doubts from colleagues. That person may feel nervous,
having a strong vested interest in the success of the mediation.
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work for the parties or not. It is essential to allow the parties - match your body language, pace and voice to that of the
party

ONE
to reach a settlement at their own pace, and mediators must
contain their own frustration, irritation or anxiety. Equally - show empathy, and acknowledge the situation and its dif-
important is the ability of the mediator to stand back from any ficulties, without sympathising and over-identifying with
the emotion

TWO
over-involvement in the difficulties, concerns or even tragedy
that the dispute contains for the parties. Over-identifying with - ask what has triggered the feelings
the situation makes it more difficult for the mediator to bring - use an open question to invite the party to tell you more

THREE
energy and skill to assist the parties in resolving matters.
- offer a break or refreshments, but don’t run away from
Many mediators feel some apprehension before a mediation, emotion; it is more effective to stay with it, even if it is
and all experience varying degrees of satisfaction or self-doubt uncomfortable for you.

FOUR
afterwards. It is important that you allow yourself time, what-
ever the outcome, to reflect constructively on the mediation.

ONE
Some techniques and approaches for working with emotion:

• Recognise emotions by observing behaviours and

TWO
being open to the fact that feelings will almost always
be part of the content of the mediation. Heightened
emotion may be demonstrated as much by silence

THREE
and withdrawing as by words or overt behaviours.
• Respect the emotions displayed or hinted at. The emotion
does not define the person; it merely indicates how they

FOUR
feel at present. Labelling a party as an angry person, for
example, can inhibit the mediator’s ability to build rapport.
• Respond to the emotion by, for example:

FIVE
- allowing silence; displaying patience and calm
- acknowledging the emotion by reflecting back and
naming it; developing and using an emotional vocabulary

SIX
(angry, worried, sad)

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PART TWO: SECTION FIVE:

ONE
THE CONCEPT USING NEGOTIATION

TWO
OF MEDIATION SKILLS AS A MEDIATOR

THREE
FOUR
ONE
TWO
Aspects of negotiation..................................................................................................................................................................124

THREE
FOUR
FIVE
SIX
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 CONTENT
Aspects of negotiation 56 • How the mediator’s own negotiating skills can be used to
further settlement. There are surprisingly poor to moderate

ONE
The mediator brings his or her negotiation experience and negotiating skills found amongst some parties and their
skills into the mediation, and deploys them for the benefit of advisers. Sometimes a clash of styles or a particular stance
taken has caused the negotiations to stall before the

TWO
all parties.
mediation. Sometimes there is an unwillingness to think
Skilled mediators use their understanding of three through the implications of holding to a position or making
a particular offer, or an apparent inability to be creative with

THREE
aspects of negotiation in particular to assist the
parties during the problem solving phase: ideas or to use language well. The section below highlights
what the mediator can add when parties find it difficult to
• Each party’s negotiating strategies and styles: these embrace begin or continue the bargaining process. The mediator

FOUR
differences between teams and any internal differences in might press the parties to assess or re-assess their risks,
negotiating approach within a team. The mediator, as well as and might engage in robust reality testing. By this stage of
the parties, will have a preferred style which must be adapted the day, the mediator usually knows more than the parties

ONE
to the needs of a particular dispute. Understanding that a about what will and will not work in terms of negotiating
party may be instinctively positional, or that a party may be approach, and, subject always to confidentiality, should
more of a co-operative negotiator than that party’s lawyer, offer this appraisal as a service to the parties. Will an offer
provoke a walkout? Will it bring a sense of reality to the

TWO
will enable the mediator to work with those differences,
perhaps even bringing together those with matching styles other party? Will it set the zone of possible agreement?
from each team. One or more participant may need to be • Retaining clarity about the mediator’s role during the

THREE
coaxed into a different approach for the purposes of the negotiations. The mediator should not take over the
mediation. Sometimes it is useful for the mediator explicitly problem, nor press for a particular solution. The mediator
to give permission for such a change of approach, and might help parties over the hurdle of who makes the first
this can lead to unexpectedly co-operative negotiations.

FOUR
offer, for example, perhaps by receiving each party’s first
bid before those bids are exchanged, but always as a neutral
and never with a personal agenda about settlement.

FIVE
SIX
56 Negotiation skills are discussed also in Part 1, Section 3, page 41.

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Claiming and creating value Once this is done, and the pie has been enlarged, the parties

ONE
will negotiate during the bargaining phase on how the pie
To understand the role of the mediator in assisting the parties is to be divided and therefore will revert to claiming value.
to negotiate, it is important to understand first the concepts of The mediator’s role here is to assist the parties to claim value

TWO
creating value and claiming value. effectively, by coaching them at key stages of the bargaining,
including making first offers, conveying information tactically,
One of the key elements of positional negotiation is that it and finding ways to break through apparent deadlock.

THREE
assumes that all value is on the table (for example, that parties
are negotiating over USD 100,000), or to use another expres-
sion that there is a fixed ‘pie’; accordingly, positional negoti- Negotiating tactics and strategies
ators attempt to claim as much of that value as they possibly

FOUR
can. In many commercial and civil mediations, parties come Negotiation techniques and strategies can be adopted from
into the process assuming a fixed pie and aiming only to claim both positional and principled schools of negotiation, to enable
value. This is particularly the case when legal proceedings have the mediator to assist the parties in moving through difficult

ONE
been instigated, as legal cases by definition need to be framed negotiations towards settlement.
positionally to claim as much value as they can. For example,
the claimant states there has been a breach of contract, there-

TWO
fore they are entitled to damages of USD 100,000; conversely, Focusing on interests not rights
the defendants deny breach of contract and therefore say no
amount of money is owed. This is classic positional negotia- The mediator may need to help the parties to focus on interests

THREE
tion. and what they need from the situation, rather than on their
rights and what they think they are entitled to or wish for by
The mediator’s role, through exploration, is to see if they can way of outcome. This may enable parties to move away from a
change the approach, at least for a while, and try to create confrontational approach to one of co-operation and a shared

FOUR
value and incorporate more principled negotiation techniques goal.
into the mediation process. This concept assumes that the size
of the pie is not necessarily fixed and that by exploring each It may be useful to spend some time finding out why parties

FIVE
party’s interests, other things of value may emerge for the have adopted their positions, and why they are making or re-
parties, which can be added to the negotiation mix, expanding sisting the claims. Even exploring why certain items are not at
the scope of the negotiation and therefore the possibilities for issue may be fruitful. Getting behind the presented case leads

SIX
settlement. to better understanding of each party’s pressures and emotions,
and may even reveal a hidden agenda.
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It is worth remembering that almost everyone is answerable However, before serious problem solving begins, the

ONE
to someone else - senior management, the board, colleagues, mediator must open the route to resolution by:
spouse, even friends. Most people come to a mediation with a
political need to ensure that any settlement can be justified to • re-establishing communication between the
parties; even if they are not talking to each other,

TWO
others. The mediator needs to be aware of this and explore it,
as it may otherwise create a blockage to settlement. they are talking to and through the mediator
• clarifying or defining the issues in dispute; so often, the

THREE
Managing expectations is an important part of assisting parties real issues have been clouded by emotion or detail.
through the negotiations. The mediator will be working on
this even before the parties meet, and continue to do so right Once the discussions pass from the early stages of blame and
through to the last word of the settlement agreement. demand into the solution-finding stage, the mediator’s prob-

FOUR
lem-solving skills become important. The mediator is detached
from the problem and can be a creative and active contributor
Where parties want to be, not where they are to the problem-solving process.

ONE
There may be a need to go over some history and to allow feel- Problem-solving activities fall into four categories:
ings to be vented, and if so the mediator must be patient. Even-

TWO
tually, the mediator will want to help the parties to focus on the • Problem exploration - what caused the original
future, on where the parties want to be, not on where they are problem? How could it have been avoided? What are the
or where they were. Identifying parties’ needs rather than their problems in the current situation? What are the needs?

THREE
wants gives scope for movement. Getting to settlement may • Development of ideas - how can each party’s needs be met?
not be easy, but keeping the shared goal of settlement in sight How are they similar, and how diverse? Brainstorm possible
provides a sense of direction and generates some co-operation. solutions. Include all possibilities, making the settlement

FOUR
pie as big as possible. What if no settlement is reached?

Problem-solving techniques • Action planning - how will each possible outcome work?
What is the real benefit to each party? How can future

FIVE
The parties often look to the mediator to solve the problem, problems be minimised? What are the terms for settlement?
not necessarily to give them the answer but to produce some • Implementation - timetable, responsibilities. Are there
options or possibilities that could lead to settlement. unresolved issues to be addressed? If so, when and how?

SIX
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Brainstorming and reality testing are widely used and are mally to individuals during breaks, or to put people to work

ONE
valuable problem-solving techniques for the mediator. Also, together as groups outside the joint and private meetings with
the flipchart is a useful tool. It provides a specific focus for all the mediator. All sorts of combinations of meetings can be
those present and, used at the right time, it can defuse tension. effective in moving the process forward. Sometimes, in order

TWO
The visual impact can also serve to clarify figures, to highlight to progress the negotiations, the mediator needs to continue to
the progress that has been made, or to confront parties with shuttle between the parties. Sometimes the barriers fall away
the reality of the gap between them or the level of potential and people will come and go between what had been private

THREE
ongoing costs. Listing the issues on a flipchart can help parties rooms. It is also important that the decision maker in a party
to agree on what needs to be tackled and provide a focus for team has the support of the other team members, so that he or
discussion. When working in this way, it is more effective to she can move matters forward confidently.
encourage parties to make suggestions for what goes onto the

FOUR
flipchart, rather than to list the mediator’s ideas. However, the It can be productive for the parties to negotiate directly, with
mediator may need to modify, neutralise or mutualise the lan- the mediator having a role in identifying the combination of
guage used, and may contribute some of her or his own ideas negotiators likely to work best together. Such meetings can be

ONE
in a way that is supportive of the parties. with or without the mediator present. They can be informal or
carefully choreographed with an agenda and ground rules set
in advance. Usually, provided that the parties agree, it is helpful

TWO
Relationships and group dynamics for the mediator to be present, perhaps to keep the meeting on
track and to be able to pick up themes and developments after
In complex negotiations, part of the problem, and indeed the the meeting.

THREE
start of the solution, may be that within each party team there
are several individuals with different perspectives and styles. All negotiations have underlying human agendas such as emo-
The mediator needs to assess the relationships within and tion, dislike, status or reputation. The mediator should be alert
between parties. Which individuals carry most weight, how to how these factors might inhibit movement, and can be used

FOUR
different individuals value different elements, and how individ- to create movement.
uals work together. This can be done by careful observation of
non- verbal and verbal behaviours, by directing questions to a

FIVE
silent team member, and by opening up a discussion within or Using information when appropriate
across teams.
In direct negotiations there are good moments and bad

SIX
As manager of the process, the mediator should be alert to moments to use information. The same is true in mediation.
opportunities to reconvene in a joint meeting, to speak infor- An offer by one party that is so low that it could cause the
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other party to retrench, or even to walk out, is probably best Bottom lines and magic numbers

ONE
retained by the mediator. Similarly, a concession may be stored
and used to maximum effect when the right moment occurs. As a general rule the mediator should avoid using the term
There is no obligation on a mediator to pass on information at ‘bottom line’, and help the parties and their advisers to do

TWO
all, or at a time when a party asks for this to happen, and it is likewise. The idea of setting a bottom line limits flexibility and
useful to make this clear to the parties early in the process. The reduces a party’s negotiating scope. The bottom line usually
mediator, possessing an overview of the settlement discussions, changes during the mediation. Some mediators prefer never to

THREE
can advise on the timing of communications and needs the ask for a bottom line figure, as parties are then able to move far
parties to allow him or her to use discretion about what might beyond those figures without losing face with the mediator. As
be most effective and when. Bad news, as well as good news, an alternative, it can be useful for the mediator to understand
can be the trigger for movement. There can be a temptation for the level at which parties might consider settling, at a particu-

FOUR
the mediator to over-protect the parties, keeping from them lar stage, and what they need to persuade them to move or to
the size of the gap at a time when it would be more effective to move further.
confront them with the scale of the problem they face.

ONE
Something else to bear in mind is the possible significance
of ‘magic numbers’. These are the figures that parties have set
Value differentials their hearts and minds on; a party may have a practical or

TWO
emotional need for a particular sum, perhaps having left a
Often, issues are of different importance and value to each par- meeting with the words I’m not going to settle for less than (or
ty. The giving of an apology may be regarded as costing noth- more than) USD. Breaking the barrier of such a number may

THREE
ing, whereas the receipt of the apology may be fundamental to require discussing it openly with a party in their private room,
continuing negotiations. The phasing of payments or payment looking at the consequences of breaking through that barrier,
in kind, insurance-backed guarantees or offers of future work, and of not doing so.
are all examples of elements that may have greater value to one

FOUR
party than cost to the other. The mediator should explore each
issue with each party to identify value differentials; something Global sums and numerical boundaries
of positive value to one party and little cost to another could

FIVE
lead to movement, and may even be what clinches the deal. At some stage the parties are likely to move from working on
the issues and the solution piecemeal to thinking in terms of a
global sum. The mediator can assist in this transition, subject

SIX
to the requirements of confidentiality, with observations such
as “They need to hear a six-figure number. “ Moving to nego-
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tiating a global sum allows each party to frame the settlement mediation. In the bargaining phase the role of mediator as

ONE
in whatever way they wish in order to justify it to others after- negotiation coach becomes crucial.
wards. Each party will often have a quite different justification
for the same figure. Before embarking on the role of negotiation coach, it is essen-

TWO
tial that the mediator has gained the trust of the parties and
Helping parties to frame or set offers in relation to numerical earned the right to ask the parties to change their behaviour
targets seen as significant to another party is an important area and approach. During this phase, offers are being framed and

THREE
for discussion. A five-figure number can seem appreciably less exchanged between the parties. Each offer from one party
than a six-figure number that is actually very little more, and sends a signal to the other party, about their intentions, their
the reverse is true. Helping parties to understand the power of negotiation strategy and tactics. However, it is often the case
such perceptions can stimulate progress. that the party formulating an offer has not thought through the

FOUR
impact of the message that the offer conveys, often sub-con-
sciously, to the other party.
Helping parties to avoid losing face

ONE
Through their understanding of negotiation, mediators should
A skilled negotiator will always give the other party a way out. be able to help parties work through what message they are
Backing a party into a corner will often result in deadlock, intending to send, and whether the offer suggested is likely

TWO
and even if later there is a deal it is unlikely that the party will to achieve that. In addition, having been working with both
wish to negotiate with that person again. In order to facilitate sides on their respective negotiation strategies, mediators can
negotiations, the mediator needs to help the parties identify anticipate the likely reaction of the other party and explore that

THREE
reasons to justify movement. Mediation quite often involves with the party formulating the offer, whilst carefully protecting
financial grief management. Victory by one side should not be any information given in confidence.
overtly celebrated, the pain should be seen to be shared, and
both parties should feel that they have had to work hard to A mediator is not there to be merely a messenger for the par-

FOUR
achieve settlement. ties. Rather, the parties have engaged a mediator to assist them
to resolve their dispute and help them chart a path to settle-
ment, through sometimes difficult negotiations.

FIVE
The mediator as negotiation coach

As seen in a previous chapter on the role of the mediator, the

SIX
coaching role starts before the day and runs throughout the

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Once good rapport and trust have been built The hurdle of the first offer

ONE
and maintained, the mediator can coach the
parties in negotiating, as necessary, by: When considering the making of offers, in particular the first
one, it is useful to think of the range of possible offers in terms
• working hard to understand what drives the

TWO
of their impact when received. This can be described on a
parties and the reasons for their positions continuum for both claimant and defendant, from insult zone
• focusing on where parties want to be, not where they are to credible zone to the ‘Zone of Potential Agreement’ (ZOPA)

THREE
• managing parties’ expectations and helping or the area in which both parties can be satisfied and reach
them through disappointments agreement.
• using creative problem-solving techniques
On both extremes of the negotiation range, there is the ‘insult

FOUR
to work up deals in principle
zone’. This is an offer, which is likely to be received as an insult
• understanding negotiation tactics being used by parties, by the other side; it sends the wrong signal to them that the
and using suitable strategies for creating movement side making the offer is either not engaged in the negotiation

ONE
• protecting the parties from loss of face, and assisting in good faith or is not prepared to ‘play to game’ properly. The
in overcoming other common problems that impede risk of such an offer is either walkout by the other party, or
negotiations; see below for further detail if they do respond with a counter offer it is likely to be in the

TWO
• recognising value differentials as a potential insult zone too. This would lock the parties into a positional
for settlement; what is of value to one party negotiation, which will be difficult to break out of and will
may be easy for another to provide increase the likelihood of failing to reach settlement.

THREE
• communicating offers and exchanging information tactically The next zone along the continuum is the ‘credible zone’. This is
• helping the parties past the hurdle of making the first offer an offer that is not good enough to be accepted but that sends
the right signal to the party receiving the offer. They will see it

FOUR
• avoiding parties committing too early to a bottom line
• recognising ‘magic numbers’ and the psychology of numbers as a good first step, or that the other party is at least negotiating
in good faith.
• working with global sums or numerical boundaries

FIVE
• assisting parties to work through apparent deadlock The final zone, ZOPA, is the range within which an agreement
• working on the basis that the deal is not can be reached.
done until written down and signed.

SIX
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 CONTENT
If a party wishes to convey a first offer which the • Having worked with both sides, I think there is a risk that
the others might react badly to such an offer I think they are

ONE
mediator thinks is likely to be received as an insult
by the other side, the mediator needs to: going to need to hear something more encouraging than that
• My sense is that they are going to need ...
• understand what that party is trying to

TWO
(without, of course, breaching a confidence).
achieve by making the offer
• discuss with the party the possible These are examples of the mediator being more direct in their

THREE
implications of conveying such an offer interventions and giving guidance on what is happening with
the negotiating dynamic. However, it must be stressed that it is
• help the party to frame the offer in an effective way not for the mediator to give their view on what should be of-
fered, or on the fairness or appropriateness of a proposed deal.

FOUR
• perhaps even help the party to decide not to
make the offer at that time or at all.
There is research that shows that the first negotiator to make
To do this effectively the mediator will an offer tends to have the greater influence on the level of set-

ONE
use a range of good questions: tlement – but only if the figure is in the ‘credible’ zone, rather
than in the zone of insult or fantasy.
Can you explain to me the basis of or rationale for that offer?

TWO
How do you think they will react to that offer? Ultimately when communicating first offers, the mediator
If you were them, how would you react to this offer? needs to ensure as far as possible that these offers are in the
credible zone, in order to avoid the parties starting too much at
What if they come back and say ... ?

THREE
the extremes of the negotiation range and thus increasing the
What would happen if ... ? likelihood of the parties facing an unbridgeable gap. Converse-
Do you suppose you could ... ? ly, parties should be discouraged from trying to pitch their first
offer in the ZOPA and saying they are not prepared to negoti-

FOUR
In addition, and only if the mediator has good rapport with the ate further. Experience shows that parties expect to go through
party, they may go a step further and give their impression of the negotiation dance of offers and counter offers. Therefore if
the impact that conveying such an offer might have. one side pitches in the ZOPA straight away and the other side

FIVE
counter offers and expects to engage in the dance, then the side
Comments such as the following might be appropriate: making the first offer may have nowhere to go and thus have
backed themselves into a corner.

SIX
• The risk of making that offer is that they might walk out, or
reciprocate in kind and counter with a low offer themselves

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 CONTENT
Managing subsequent offers knowing that the other side is likely to ask how such an offer

ONE
and conveying information tactically can be justified or where it comes from.

As mediator you need to anticipate the emotional slump, or It is crucial for the mediator to be more than just a messen-

TWO
eruption, that can occur when the first offers are made. Parties ger. This involves working actively with the parties, making
sometimes want to give up at once, walk out or head for court. decisions about whether information is to be conveyed and
It might be helpful to indicate from your experience that this if so, the best way to convey that information, and when; for

THREE
kind of reaction is common when first offers are made. If you example:
have prepared the parties, by normalising a stage at which
the gap between them will seem impossibly large, they will You have said you want USD 100,000 and then you would
usually stay and work on, accepting this as a part of the ritual consider a future relationship. Can I convey it in this way - that

FOUR
of negotiation. you would consider a future relationship as part of a deal that
included a substantial cash payment?
Throughout, the mediator needs to be alert to the parties’ un-

ONE
derstandable wish to protect their negotiating position. If a mediator judges that it is not the right time to convey
information, a suggestion or an offer, then the mediator could
Experience shows that in an effective negotiation there will ask to be given discretion; for example:

TWO
likely be about three offers and counter-offers. If there is no
settlement by that stage, parties tend to lose faith or lose inter- I know you want me to take this offer, but now might not quite
est, fearing that the negotiations are turning into an unproduc- be the right time, so would you leave it to me to decide when

THREE
tive game. Alternatively, if one party is unwilling to respond, to convey it?
and makes fewer than three offers, the other party may feel that
there has not been a serious attempt to settle.

FOUR
Breaking apparent deadlock
Throughout this stage of offers and counter-offers, the me-
diator will often help a party to reframe a proposal. Using Often, despite the mediator’s effective engagement in explo-
different words, expressing an offer or an idea as a positive ration, active coaching of parties during the bargaining and

FIVE
rather than a negative, or restructuring the offer in a way that helping to frame offers, there will come a stage when the
will be more likely to be taken seriously by the recipient, are all parties appear to be in deadlock and it is difficult to see how
useful techniques and a valid use of the mediator’s negotiation the negotiation can progress.

SIX
and problem-solving skills. Before an offer is put to the other
party, the mediator will usually find out the basis for the offer,
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 CONTENT
The most common reasons for deadlock are: • The need to save face: the significance of this is sometimes
underestimated. Mediators must be alert to an individual’s

ONE
• Parties become entrenched in positions, asserting need to preserve credibility and dignity, and should try
that this is the furthest they will go. Advisers may to find sensitive process solutions to save face and so to
encourage clients to adopt this approach, protecting avoid the negotiations getting stuck. This may require

TWO
them against making concessions in the hope that giving parties space and time in private, without the
taking a firm position will give them a better result. mediator, especially after challenging or reality testing,
to let them adjust to a necessary change of position.

THREE
• One party exposes their bottom line too early, leaving
them nowhere to go. In many cultures, parties expect some • One party has reached the limit of their authority.
give and take, and if responses dry up early from one side,
When faced with apparent deadlock, the mediator needs to

FOUR
even if they make a reasonable ‘first and last’ offer, the
other side may regard this approach as unacceptable. bring independence, energy, patience and imagination to help-
ing the parties make progress.
• Emotional blockage: all disputes have some emotional

ONE
underlay, though usually nearer the surface and more One or more of the following strategies may help:
obvious in injury and employment claims than in
commercial contract disputes. Parties and advisers all • bringing the parties together to acknowledge

TWO
have pressures: a reputation to make or retain, internal the situation and talk it through openly
competition, financial incentives, ambition, feelings of
• summarising and reiterating progress made, rather than
inadequacy, fear of perceived failure, or dislike or jealousy
allowing parties to focus on the problem and the gap

THREE
of their opponents or even their own team members.
• shifting the parties from positional to principled negotiation,
• Team dynamics can inhibit progress: for some
so as to work co-operatively on a solution to a joint problem
it is easier to play the hawk than the dove, and

FOUR
the temptation to act tough is powerful. • allowing emotion to emerge, and acknowledging
its significance, where strong feelings seem to be
• Tactical deadlock: using delay to create pressure.
blocking full participation in the process

FIVE
• reviewing common ground and
highlighting any areas of agreement
• finding an easy concession that is cheap

SIX
to make but valuable to receive

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 CONTENT
• taking a break, so as to allow tempers to • changing the balance of risk; one party finding a way to take
cool and give time for reassessment a calculated risk, for example, by providing a warranty

ONE
• using a touch of humour can ease tension • a shared lack of certainty about the outcome if the matter
and relax the atmosphere goes before a court can create a sense of partnership.

TWO
• breaking the problem down, dealing with smaller Helping each party to develop new perspectives, and reality
issues one by one, can create useful momentum testing each party’s stance, are both particularly important

THREE
• parking some issues for later discussion can skills for a mediator to use when negotiations are getting
make room for progress in other areas difficult.

• introducing new information or reframing

FOUR
issues to test out a different perspective Developing new perspectives
• trying to create value, by changing focus away from
monetary aspects to see if there are non- monetary The mediator often needs to help the parties see the situation

ONE
elements available to improve the deal from a different perspective in order to begin to make progress.

• changing the negotiating teams can bring fresh ideas on Most of us are familiar with the benefits of perceiving

TWO
the day; and, if negotiations break down, perhaps on a a particular situation from different points of view;
later occasion introducing more senior decision makers we reflect it in our language when we speak of:
• altering the rhythm of the process by doing something

THREE
• seeing both sides of the argument
different; changing the surroundings, even the seating
positions, taking the parties for a walk, instigating • looking at ourselves objectively
working groups, using a flipchart to change the
• standing in another’s shoes.

FOUR
focus, holding a joint meeting to review progress
• reviewing the process and perhaps asking To achieve these changes of perspective, a party needs to use
parties what they want to do next imagination and intellect to see the situation as another sees

FIVE
• introducing a deadline for the day, or agreeing one it. The ability to do so in a constructive way can be a powerful
for after the mediation so as to give a good reason catalyst for change. The mediator can help a party to view the
to re-establish contact and re-open negotiations problem, or a possible solution, from the other’s point of view,

SIX
and thus increase their understanding of the other’s needs and
pressures, which can lead to more co-operative problem solving.
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 CONTENT
Some mediators even use the technique of physically course, the party might deliberately name a wholly unrealistic

ONE
seating party A in the chair previously occupied by figure in order to reassert their position, in which case the
party B - and then asking party A to imagine: mediator will need to do some further exploration or some
further reality testing.

TWO
You are party B; how do you see party A?
What are the issues that concern you as B? For these techniques to be effective, good communication
skills, good timing, intuition and good judgement are essential.
How do you as B interpret the events?

THREE
What will best persuade them to reassess their risk?
Reality testing
Whilst not labouring this particular technique,

FOUR
there are frequent opportunities to help a party Reality testing is a form of challenging; a technique discussed
to see something from the other’s position: in the chapter on ‘Communication skills for effective media-
tion’. Specifically, reality testing might involve the mediator in:

ONE
• What do you see as their main needs that
must be met if they are to settle today? • playing back to a party their stated position and
encouraging them to test and reappraise it
• What is driving them? What are the pressures, the politics?

TWO
• reviewing an offer with a party and questioning how it
• How will they react to that offer? is likely to be received by the other side, and whether
it will assist progress or inhibit the negotiations

THREE
One way of encouraging movement is to help
• discussing the practicalities of a proposed
a party to anticipate the other party’s bottom
settlement with each party; its implications and
line. For example, asking party A:
whether it would be workable if agreed

FOUR
As party B, what is your break point where you • asking a party to make a full assessment of
would leave the mediation without a settlement? future risks – time, money or reputation, for
Usually party A will respond realistically, instance – if the dispute is not resolved

FIVE
to which the mediator might reply: • walking a party through alternatives
If you are right, can you (party A) meet that? to a negotiated settlement.

SIX
When the mediator has worked in this way with both parties,
a potential for breakthrough may have been established. Of
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 CONTENT
This requires particular sensitivity, for it could be misinter-

ONE
preted as the mediator inappropriately expressing a view on a
party’s case.

TWO
Parties may need encouragement to identify or revise their
BATNA and WATNA (Worst Alternative to a Negotiated
Agreement), which will help them to shape their offers and

THREE
counter-offers and identify the level at which settlement makes
sense.

Reality testing should never be used as a bullying tactic to force

FOUR
settlement. However, it is an important tool for helping parties
to review their risks and become more flexible. A series of skil-
ful open questions is an effective method of reality testing.

ONE
The degree to which the mediator will need to engage in full
reality testing will vary. Often it is enough just to ask the ques-

TWO
tions and sow the seed of doubt, with no need for the mediator
to engage in detailed reality testing. In some mediations the
parties do their own reality testing and reassessment of risk

THREE
in private without the mediator, and it would be a mistake to
press those parties to spell out the weaknesses in their case and
the unattractive alternatives to settlement.

FOUR
Drawing together a settlement package and doing the deal

FIVE
With nothing being binding until in writing and signed by
the parties, the mediator must be prepared for difficulties to
bubble up, even at the end of the mediation. The mediator may

SIX
need to help the parties to return to bargaining, and even to
exploration, before finality is achieved.
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 CONTENT
PART TWO: SECTION SIX:

ONE
THE CONCEPT COMPETENCE, GOOD

TWO
OF MEDIATION PRACTICE AND ETHICS

THREE
FOUR
ONE
TWO
Some dos and don’ts for effective mediation.............................................................................................................138
Ethical and legal responsibilities for mediators........................................................................................................ 140

THREE
FOUR
FIVE
SIX
137
 CONTENT
Some dos and don’ts for This focuses parties on the key aspects and
cuts through unnecessary detail.

ONE
effective mediation • Aim for a conversation with the parties rather than
an interview, an interrogation or investigation.

TWO
The following lists of dos and don’ts provide a reminder,
highlighting and reinforcing good practice guidelines from the • Acknowledge emotions and allow feelings to be
handbook. vented, even in joint sessions; although if this becomes
destructive or abusive, move into private meetings.

THREE
• Encourage all present to contribute, perhaps
Some dos: inviting comment from quieter participants.

FOUR
• Trust in the process and respect the people, and convey • Check if there have been previous settlement offers. This
this to all those with whom you are working. sometimes, but not always, provides a starting point for
negotiations, and can avoid frustration and time wasting.
• Contact the parties before the mediation to start the

ONE
relationship and the process on a firm footing. • Have patience; let the parties own the problem and the
solution. Give them time to adjust, re-evaluate and move.
• Show that you have read the documents

TWO
and are well prepared. • Be flexible, vary the format, take time, follow up cues
and clues, and discuss apparent inconsistencies.
• Develop a mediator’s opening statement that covers
introductions, the role of the mediator, the principles • Listen a lot

THREE
of mediation that everyone has signed up to, and
• Build and keep up momentum. Try to keep meetings short
some sense of the process and how the day might be
and purposeful, leave some matters for the next meeting
used. Be brief, confident, positive, and responsive
and, if possible, task the parties to work in your absence.

FOUR
to any questions and to the needs of the parties.
• Pace yourself and pace the parties
• Show empathy, build rapport, reinforce neutrality,
and do so equally with each party. • Encourage the parties to talk to each other directly.

FIVE
You do not have to be a go-between, and you
• Encourage parties to make an effective opening statement.
want to avoid being simply a messenger.
This is a chance to enhance the other party’s understanding
and to begin to persuade them to change their perceptions. • Challenge positions and proposals. Hiding behind

SIX
the mediator may allow a party to adopt an
• Spend time clarifying the issues in dispute.

138
 CONTENT
aggressive stance or make unreasonable demands • Don’t take lots of notes; you lose eye contact
or offers. Try asking “Would you be prepared to and can miss important communication.

ONE
ask the other party that question directly?”
• Don’t make assumptions about parties,
• Recognise that many mediations have a point of causes, merits or fairness.

TWO
despair when settlement looks impossible; the
• Don’t criticise poor preparation, presentation
mediator needs to help the parties to keep working
or negotiation by parties.
and to try different ways of making progress.

THREE
• Don’t interrupt
• Maintain your energy; take breaks, have some
refreshment; look after yourself and the parties. • Don’t ask questions that indicate favour to
one party’s argument or position.
• Devote time and patience to the drafting

FOUR
stage. There are usually issues that arise during • Don’t give away your prejudices and opinions by
the drafting that need to be resolved. the way you behave or the way you ask questions.
Be direct when challenging and reality testing.

ONE
• Keep the door open if the mediation does not
settle. Plan for next steps, offer another day, • Don’t impose your solution, even if you
or agree to be in telephone contact. see it early and believe it will work.

TWO
You will probably have your own dos to add to the list. • Don’t ask for a ‘bottom line’ – and don’t be
naïve in believing a stated ‘bottom line’.

THREE
Some don’ts • Don’t push a party or allow them to back
themselves into a corner with no exit.
• Don’t be fazed, or if you are don’t let it show. A mediator
• Don’t give up. Persistence pays off, sometimes
needs to be accepting, flexible and responsive, coping with

FOUR
in the most unlikely circumstances.
whatever happens, however unusual or unexpected.
• Don’t press for settlement at any cost, particularly if the
• Don’t get swamped by details either
reason is to maintain your personal settlement record.
in preparation or on the day.

FIVE
• Don’t be too hard on yourself if the
• Don’t appear to be a judge or arbitrator, or let the
mediation does not settle.
parties treat you as such. Do not cross-examine parties

SIX
or advisers; don’t suggest, in what you say or what you You will probably have your own don’ts to add to the list.
do, that you will give an opinion or evaluation.

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 CONTENT
Ethical and legal responsibilities Honest dealing with the parties is also fundamental. Parties

ONE
need to be able to trust that information given to the mediator
for mediators in confidence will not be revealed in another room, and to
believe the mediator who says that a confidence has not been

TWO
This section draws together the ethical principles which under- breached. This will be especially important, for example, if
pin mediation. Some have been introduced elsewhere in the the mediator has raised a possible weakness in party A’s case
handbook and some are discussed here for the first time. The with A, and promises not to give it away to party B. If B later

THREE
role of a mediator is a privileged and sensitive one. spots the weakness and asks the mediator to raise it with A, A
must believe the mediator’s assurance that the point was not
A judge or arbitrator cannot speak privately to either party disclosed to B by the mediator.
during their adjudicative process because of the rules of natural

FOUR
justice. A mediator usually spends time with each party sep- The need to preserve confidential information will often be
arately and confidentially, on the telephone in advance and at challenged directly, although perhaps unwittingly, by a party
the mediation in private rooms. Indeed this is often what makes asking the mediator if the other party has raised a particular

ONE
it possible for the mediator to help the parties make progress. topic or would accept less than is currently being demanded.
This requires parties to place a high level of trust in the media- In response, the mediator must find a way of preserving the
tor, who must at all times be scrupulous to respect confidenti- confidentiality of the discussions without lying to the asking

TWO
ality and to exercise impartial judgement and discretion in the party. The mediator should never lie to or knowingly mislead a
way the process is run. Mediators who display anything but the party. If a party is aware that the mediator has misled another
very highest ethical responses are unlikely to find favour. party, they are unlikely to be confident that the mediator will

THREE
not mislead them, too. A mediator who is found to have lied or
deceived a party is seriously undermined and may not be able
Integrity and honesty to continue the mediation.

FOUR
Integrity is an essential quality for a mediator. While diffi- Mediators need to develop responses to such awkward
cult to define in concrete terms, the parties will be very clear situations. General responses, such as, ‘please do not press
whether or not they think that a mediator is acting with integ- me, because I cannot tell you’, or ‘just as I will respect your

FIVE
rity. Mediators must demonstrate integrity in all their dealings, confidence, you would expect me to respect the other party’s
rather than just assume that trust comes automatically with the confidences’, or ‘as soon as I can tell you anything further I will
role. Integrity is not something that is switched on consciously, do so’, are useful.

SIX
but the mediator needs to be aware that parties’ trust in the
mediator can be damaged or lost.
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 CONTENT
Another challenge for the mediator is the risk of appearing to might jeopardise the mediation is unwelcome and embarrass-

ONE
collude with one party, perhaps through careless use of lan- ing. Knowing a party personally or professionally should be
guage, such as seeming to side or sympathise with one party, disclosed. In fact, parties rarely raise an objection after such a
even through overuse of the word ‘we’ in an attempt to build disclosure; however, the mediator should be prepared to with-

TWO
rapport. draw if objection is made.

Finally, if a mediator conveys a material misrepresentation, There are more subtle potential personal conflicts to be aware

THREE
even innocently, which induces the settlement deal, the usual of: the possibility of prejudice about personality, race or gen-
rules of contract apply; the deal is at risk of being challenged der. This reflects a wider requirement for mediators to possess
if the misrepresentation emerges. In addition, the mediator’s a high degree of self-awareness, anticipating conflicts of this
credibility will have been compromised in the eyes of at least nature and adjusting to avoid any demonstration or impact of

FOUR
one party, and possibly both. This means that the mediator prejudice or bias.
must be cautious about conveying what could be critical factual
assertions leading a party to agree to terms. If in doubt, invite At the mediation itself, the mediator needs to be seen to be

ONE
the party to make the representation direct, rather than risk a entirely independent regarding the issues in dispute, and to
possible misrepresentation being clothed in respectability by treat the parties even-handedly. In terms of the process, the
the mediator’s neutrality. Any such important assertion of fact mediator must run the mediation in a way that allows equal

TWO
might also be included as a recital in the settlement agreement, opportunity to all parties to contribute and participate in the
so as to evidence the factual basis on which the settlement is negotiations. In terms of outcomes, the mediator must have
founded to the parties and the court in case of controversy. no interest in what is agreed – financial, personal or other-

THREE
The need for such measures is rare, and settlements reached at wise. The mediator should never offer professional services
mediation are very seldom challenged and are usually imple- to either party following the mediation: the only appropriate
mented as agreed. involvement should be as mediator, offering mutually available
assistance in progressing further negotiations or, if requested,

FOUR
in helping to implement the settlement terms.
Impartiality, neutrality and avoiding conflict of interest
Impartiality and neutrality also require that mediators separate

FIVE
These related requirements are essential for a mediator, who their own interests, professional pride or wish for recognition
must at all times remain impartial in relation to parties, from whether or not there is a settlement. It is inappropriate
process, content and outcomes. At the nomination stage, the for a mediator to exert pressure on parties to settle because it

SIX
mediator must immediately declare any possible conflict of in- might otherwise reflect badly on the mediator. In fact such an
terest that either party might perceive. A late disclosure which approach is quite likely to be counter-productive. The mediator
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 CONTENT
needs to be energetic in encouraging parties to consider settle- If a party attends the mediation without an adviser and the

ONE
ment, even exerting some pressure where they seem reluctant other party is represented, the mediator must remain alert
or stuck. However, this must always be from a neutral and to the risks to neutrality and conduct the mediation with
respectful stance, which leaves the parties free to make their great care. Where one party is unrepresented and is also not

TWO
own choices, including a decision not to settle. a sophisticated player in disputes, the absence of available
advice could lead to an ‘unfair’ result. Furthermore, pressure
Neutrality may be endangered by over-enthusiastic reality test- may grow on the mediator to be drawn into an advice-giving

THREE
ing, if a party perceives itself as being singled out and wrongly role with the unrepresented party. This has to be resisted and
or harshly challenged. In order to minimise future discomfort pre-empted, if possible, by discussions with both parties prior
or misunderstanding, some mediators tell all parties together to the mediation.
at the opening meeting that mediator reality testing with each

FOUR
party in private is a usual part of the process.
Criminal activity and threats to safety
To the extent that the mediator probes and challenges one par-

ONE
ty’s position on any issue, this must be undertaken impartially On very rare occasions, a mediator may encounter proposals
and for the benefit of that party in assessing or reassessing their or activities giving rise to a suspicion of illegality and miscon-
risks. It is unethical for a mediator to play one party off against duct or which might even amount to a breach of the law. Such

TWO
another, for instance, by attempting separately to convince an occurrence may affect a mediator’s obligations to the parties
both parties that they have no realistic prospect of winning the on confidentiality.
litigation.

THREE
Initially, the mediator might challenge proposed potential-
ly unlawful conduct by reality testing the wisdom of taking
Dealing with power imbalance such steps, and seeking alternatives with the party or parties
suggesting it. As a last resort, the mediator might decide to

FOUR
A party will sometimes feel at a disadvantage, even when withdraw from the mediation.
represented; for example, where an individual is suing an
organization or an insured defendant (and thus, effectively, The mediator should always seek advice if such a situation

FIVE
the insurer). The mediator needs to be alert to any party’s arises. Fortunately such occasions are very rare.
perception of power imbalance and work to encourage equal
participation, remembering that the process itself, at which a

SIX
large defendant takes on the guise of two or three people with
authority to settle, will assist.
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 CONTENT
Compellability of mediators as witnesses Mediators should always have current and adequate profes-

ONE
sional indemnity insurance.
Such protection afforded to a mediator from being compelled
to give evidence derives from the mediation agreement itself,

TWO
in which the parties normally agree not to call the mediator in Withdrawing from a mediation
any subsequent proceedings. Judges are normally unwilling to
contemplate allowing a mediator to be called as a witness, as Although it is rare for a mediator to consider withdrawing, if

THREE
this may risk perceptions of neutrality of both mediator and the you find yourself in that position, remember the following:
process. They are, however, compelled to be witnesses in some
• explore alternatives that might defuse
jurisdictions; in others, they enjoy statutory immunity from
or answer the ethical issue
being called.

FOUR
• keep the mediation going until you are
sure that there is no alternative
Mediator negligence and breach of contract
• consult the organisation under whose auspices

ONE
the mediation is being conducted, or a specialist
There is nothing inherent in the mediator’s role that confers
adviser, especially regarding money-laundering
immunity from being sued. Although mediation agreements

TWO
attempt to limit liability to matters where mediators act • explain to the parties your reasons for withdrawing,
fraudulently or are guilty of wilful misconduct, there must without breaking confidentiality.
be doubts as to whether such an exemption would be effec-

THREE
tive. Fortunately, the scope for such claims is far less than in
professions where advice is given to a client. A mediator who
acts negligently or breaks a term of the mediation agreement
can, in theory, be sued, even though the claimant would have

FOUR
to demonstrate a quantifiable loss; in fact, in the UK to date,
no mediator has been sued. Mediators who give advice, or take
responsibility for the wording or content of a settlement agree-

FIVE
ment (both as to what it contains or what it omits) may expose
themselves to the possibility of a claim, and it is the parties’
advisers who should take responsibility for such activities.

SIX
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years