The Kapila & Nirmal

Hingorani Foundation

MEDIATION SKILLS TRAINING

Course Material

Prepared by :
Dr. Aman Hingorani, Advocate-on-Record &
Mediator, Supreme Court of India, from various
sources for private circulation
 Definitions

NEGOTIATION : Negotiation is a voluntary

process between the disputants directly to
reach at a settlement by which one
disputant strives to satisfy his or her needs
or interests which are under the control of
the other disputant. The result of a
negotiation process is a settlement, and not
a decision.
 Definitions
MEDIATION: Mediation is a voluntary,
disputant-centred, non binding, confidential and
structured process controlled by a neutral and
credible third party who uses special
communication, negotiation, facilitative and
social skills to assist in a binding negotiated
settlement by the disputants themselves. Simply
put, mediation is assisted negotiation. The result
of the mediation agreement is again a settlement
agreement, and not a decision.
 Definitions

CONCILIATION : Conciliation is viewed

as a pro-active form of mediation, where
the neutral third party takes a more active
role in exploring and making suggestions
to the disputants as to how to resolve their
disputes (Salem Advocates Bar
Association v Union of India, AIR 2005
SC 3353).
Transforming Conflict

Negotiation and Mediation are all

about transforming conflicts
 Base and Grounding of
Conflict
• The source of every conflict is some defect
in the understanding, some error in
reasoning or some sudden force of passion.

• While the negotiation and the mediation

process aim to transform conflict, it is
crucial for the negotiator/mediator and
each disputant to understand the source of
conflict for them to correct that defect,
error or force.
 Process of development
of conflict
• Dissatisfaction : about not being able
to achieve a target or a goal.

• Analysis : the party does an analysis

for such failure.
 Process of development
Analysis in order to :
of conflict
•• Understand the nature of the
Understand the nature of the
problem;
• Decide how he or she wants it
resolved;
• Formulate various means and
strategies he or she could use for
getting the desired resolution.
 Process of development
• Behavioural
ofPattern
conflict
• The party modifies his or her
behaviour pattern to be in tune
with his/her analysis.
• An erroneous analysis leads to
wrongful behaviour and non
resolution of the problem.
 Process of development
of conflict
•
Conflict cycle : The party remains
dissatisfied by non resolution of the
problem thereby starting the cycle of
conflict

• leading to deeper dissatisfaction,

• even more erroneous analysis, and
• further wrongful behaviour.
Understanding the Conflict

In order to evaluate self-analysis of a party, the

Negotiator / Mediator to gather information
about :
• the parties
• their situations
• their priorities
• the interests underlying their positions
• how they would want to see their interests
satisfied
 Communication
• Process whereby information in form of
messages, symbols, thoughts, signs, emotion is
packaged and is imparted by a sender to the
receiver via a channel.
• Process of sharing our ideas, thoughts and
feelings with other persons and having those
ideas, thoughts and feelings understood by those
persons. When we communicate, we speak,
listen and observe to monitor the effectiveness of
message.
 Communication

SENDER/SPEAKER/SOURCE ___________ RECIEVER/LISTENER

Formulate message Message received
as per conditioning/experience Understood as per
(Frame of reference – experience, conditioning/experience
knowledge, goals, beliefs, feelings,
values, attitude, time, social environment
physical setting)
Encode message Decode Message
Transmit ………….FEEDBACK/REACTION…………. Interpret message
Verbal/non verbal
(Facial expressions, questions
comments etc)
 Communication
Three levels of communications contained in a
message
• Content level – explicit subject and content of
message
• Relationship level – the way the speaker views
the status relationship of other participant
(dominant, equal or subservient)
• Affective level - emotions – how speaker feels
about the message, the participants, the situation
 Communication Tools

Listening
• People can listen to almost four times the
number of words they speak in a minute
• Easier to gather and understand information
while listening than while talking
• Gives the speaker the platform to vent the
uppermost issues in his or her mind as also the
underlying needs
 Passive listening

• Requires the ability of the listener to be

silent and let the party speak without
interruption.
• The listener, at best, could respond by
attentive indicators like eye contact or
head nods, and by non-judgemental
phrases like “yes”, “sure”, “I see”.
 Active listening
• Requires the listener to hear what is being said and then
communicating it back in different words in such a
manner that it reassures the party that the listener has
understood what the party has said.
• The communication to be neutral and non evaluative, in
appropriate language, and in friendly, conversational tone

Effective in
• building rapport and gathering information
• encouraging party
• enabling clarification by the party
 Active listening
Content Reflection
• Single short non judgemental statement by
the listener on the content of a narration
of facts by the party
• Don’t presuppose or anticipate
information beyond what the party has
said
• Use technique of “piggy backing”
 Active listening
Feelings Reflection
• Single, short, non judgemental statement by the listener
on the undercurrents of strong emotions contained in
statement of the party
• builds trust, rapport and credibility very effectively and
thereby encourages the party to share information more
readily
• the party gets the “good feel” factor, would raise his/her
self esteem
• release of emotion by the party could inculcate a feeling
of discharge and relief, and facilitate his or her moving
onto other issues
 Questioning
Leading questions
• contains an assumption or the answer implicit in
it
• such questions usually start with “Did”, “Were”,
“Do”
• useful only when eliciting known information
that is not forthcoming from a party due to, for
instance, ego or case threat
• generally closes the inquiry as the party is
expected to agree with the suggestion
• does not normally add to rapport building
 Questioning
Non leading questions
• neutral form of a question giving no hint of the answer
• such questions usually start with “Who”, “What”,
“Where”, “When”, “How”, “Could you”
• permits the party to select responses from their frames of
reference and relevance
• allows free flow of information and are better at rapport
building
• too open a non leading question would result in the
details being developed poorly or may induce rambling
by a party
 Questioning
Focused non leading question
• specific information is sought about a specified
topic
• allows navigation past threatening areas
• however, early use of focused questions could
inhibit information, leave the party feeling not
heard nor allowed to speak or express
• the party would also loose the opportunity to let
off steam while the negotiator/mediator could
loose the opportunity to show empathy
Non verbal communication

• Observing oneself and others is nonverbal

communication
• the way people express themselves, not by
what they say, but by what they do
• feelings are communicated quite well non
verbally, thoughts do not lend themselves
to non verbal channels
Inter-relation of Verbal and
non-verbal communications

• Non verbal behaviors can repeat what is said verbally

• Non verbal messages may also substitute for verbal ones
• Verbal and nonverbal messages can complement each
other
• Non verbal behaviors can highlight verbal messages
• Non verbal behavior serves to regulate verbal behavior
• Non verbal behavior can often contradict the spoken
word
 Types of Non Verbal
communication

• Distance
• Orientation
• Posture
• Facial expressions
• Gestures
• Eye contact
• Appearance
Communication Inhibitors

• Barrier could be at any stage –

transmission of message, feedback

• Problem could be sender, channel or

receiver
 Communication Inhibitors
Common Barriers
• the perception that full disclosure would lower their self
esteem (ego threat)
• the perception that full disclosure would harm their case
(case threat)
• the perception that full disclosure would violate notions
of propriety (cultural or gender perception)
• an unpleasant or traumatic association with a bad
experience (painful history)
• the need of the party to talk about something more
important than what the negotiator/mediator wants to
discuss (great need)
 Communication Inhibitors
• the perception that a particular fact is irrelevant and
hence need not be communicated (perceived
irrelevancy)
• poor understanding, distractions
• status issues
• gender barrier
• poor attitude towards sender or information
• lack of interest in message
• unsolicited communication
• selective perception - abstracting or slanting
NEGOTIATION
 Negotiation styles

Competing

Competing is handling conflict head on. It is standing firm and

rejecting the views and beliefs of the other party or standing
between the warring factions and demanding that the war cease.
It’s disadvantage is that it undermines the self respect of others. It
should be used where

- a quick decision is vital

- unpopular ideas on important issues must be implemented
 Negotiation styles

Collaborating

Collaborating is less than the art of total compromise. To

collaborate, ideas that come from both the parties to the conflict
should be considered to try to find a way of developing them all,
without detracting from the overall goal. This strategy should be
used where
- both sets of concerns are too important to be compromised
- the objective is to learn
- the aim is to merge insights from different people
- there is need for commitment
- it is important to dispel feelings that have interfered with a
relationship
 Negotiation styles
Compromising
Compromise is the art of win-win negotiation. Both
parties to the conflict should feel that they have won. It
often translates into “lets split the difference”. It should
be used where
- goals are important but not worth the disruption of
more assertive behaviour
- opponents with equal power are committed to mutually
exclusive goals
- there is need to achieve temporary settlements to
complex issues
- time pressure is great
 Negotiation styles

Avoiding

Avoiding means deciding not to get involved in the conflict and

asking that it be solved elsewhere. Its disadvantage is that negative
feelings might linger. It should be used where
- the issue is trivial
- more important issues are pressing
- there is no chance of satisfying genuine concerns
- the potential disruption outweighs the benefit of resolution
- people need to cool down
- gathering information might help
- others can resolve the conflict more effectively
- issues seem intangible
 Negotiation styles
Accommodation
Accommodation is the art of accepting the situation and
agreeing to back down in conflict. It should be used
where
- the party knows he is wrong
- issues are more important to others than one party
- there is need to build social credits for future issues
- the party needs to minimize loss; as he is outmatched
and is losing
- harmony and stability are specially important
 How to negotiate

Preparation and information collection phase

• prepare case thoroughly, after making a
“shopping list” what your party can live with or
without
• assess the objectives of the other side as well
• consider the consequences of a failed
negotiation, and should your party have to resort
to litigation, the factors such as expenses, delay
and the risk of losing
• do reality check
 Reality check
Compare the pending offer by the other side with

- the best result your party can get in litigation

(BATNA or best alternative to a negotiated
agreement)
- the worst result your party can get in litigation
(WATNA or worst alternative to a negotiated
agreement)
- the most likely result your party can get in
litigation (MLATNA or most likely alternative to
a negotiated agreement)
 Reality check
• The better the BATNA is of a party, the
greater is the power of the party to
negotiate and to reject unfavourable terms
• WATNA helps the negotiator to be more
flexible in evaluating the pending offer by
the other side
• MLATNA enables the negotiator to
examine whether the pending offer is close
to the likely outcome of litigation
 How to negotiate
Preparation and information collection phase
• choose the right time to negotiate
• negotiate when his or her client has the least
need for a settlement and when the other side’s
need is greater.
• avoid spontaneous negotiations
• choose the right place for negotiation
• beware of “neutral territory” which turns out to
be the other side’s home ground
• research about the other side
 How to negotiate
• Both sides present their initial positions to one
another
• start by going over common ground
• listen (passively or actively) to the other side
during negotiations
• confirm that he or she has understood what they
have said
• give credit and praise to others and avoid
upsetting anyone
• don’t try to guess the other side’s statement or
try to finish off their statement
 How to negotiate
• proposals should be made conditional so that
there is always an exit door
• piggy-back a conditional proposal on an earlier
one, he or she does not risk the first proposal if
other side does not accept the conditional one
• summarise the progress accurately
• be persistent by resurrecting unresolved issues
for settlement
• use concessions to add to the agreement and
keep his/her ear open for concessions or weak
ground
 How to negotiate

• Have a consensual approach towards

negotiation since it adds to building
relationships
• Note the appearance and body language of
the other side at negotiations
• Avoid obvious tricks to overpower the
other side.
 How to negotiate

• Bargaining - aims to narrow down the gap

between the two initial positions

• The kind of bargaining technique that a

negotiator will adopt will depend on the
nature of a given negotiation
 Kinds of bargaining
techniques
• Rights Based Bargaining : In such bargaining,
parties refer to their legal rights as basis for
resolving their disputes. It entails blame oriented
analysis of facts and law.
• Positional Bargaining : This kind of bargaining is
characterized by the focus of the parties on their
positions and stands, rather than on the needs or
concerns underlying that position or stand.
• Distributive Bargaining : In distributive
bargaining, the focus is on the allocation of fixed
limited resources between parties.
 Kinds of bargaining
techniques
• lntegrative Bargaining : It is a bargaining technique in
which the parties 'expand the pie’ by exploring additional
options and possible terms of settlement. It involves
creative problem solving techniques.
• Interest-based Bargaining : This kind of bargaining
focuses on the underlying interests of the parties to reach
a mutually beneficial agreement. Parties consider various
interests such as timing, finality, control over the
outcome of negotiation, relationships, costs, privacy etc.
for mutual gains.
 Negotiation strategies
• Salami : This technique is used to achieve the desired
result slice by slice or bit by bit rather than all at once.
• Fait accompli : Do what one wants to do and present the
other party with the act done, often with it with no option
but to reconcile with the act.
• Standard Practice : By this technique, a party is
persuaded to act or not to act because of a supposed
“standard practice”.
• Deadlines : Setting of deadlines adds as pressure tactic for
a party having time constraints to negotiate atleast some
settlement.
• Feigning : This strategy is used to create an erroneous
impression to the other side that one thing is desired
whereas the main objective is to get something else.
 Negotiation strategies
• Apparent Withdrawal : This strategy is used to create an
impression that the party has withdrawn from
negotiation so as to induce the other party to give a
concession or change its position to maintain negotiation
talks.
• Good Guy/Bad Guy : This strategy is commonly used by
a negotiating team where one of the member takes a
hard line approach and the other member is friendly and
amenable; the offer then given by the latter is more easily
accepted by the other party.
• Limited Authority : This technique is used to compel the
other party to accept whatever offer than can be given by
the party having limited control or authority.
 Closing Negotiation
• Should there be an agreement, it is important to put it in writing and
taking care of the small print. This would facilitate speedy
implementation of the agreement.

• A negotiation is usually successful if the disputants are

- willing to co-operate and communicate to redress their concerns
- can identify the cause of conflict
- are able to reach an agreement which is not inconsistent with
their basic interests.

• Negotiation is doomed if there is a communication failure,

inadequate information, differing legal perspectives or simply
inappropriate representation.
MEDIATION
Facilitative Skills of Mediators
• the ability to reassure the parties about the neutrality of
the mediator, the credibility and confidentiality of the
process
• the ability to control the process
• the ability to recognise communication inhibitors and
combat them
• the ability to take the sting out of the hostility and
volatility between the parties and to present the
negativity of one party as his positive need of the other
party
• the ability to generate momentum towards agreement
and establish a conducive environment for negotiations
• the ability to recognise impasse and prevent it
Importance of Social Skills
• Create a positive environment for
mediation
• A party will be more willing to extend a
curtsey to the other party when he or she
receives one from that party
• Giving a concession will facilitate the
receiving of a concession.
• Use of general practice or terms for
settling the particular kind of dispute
Ground Rules of Mediation
Neutrality
Mediator should
• be a neutral third party having no interest with
the dispute or either party
• allocate time equally between the parties
• show the same level of deference to each of the
parties
• encourage each of the parties to participate in
the same manner
Ground Rules of Mediation
Self determination
• Mediation is based on the principle of the
parties’ self-determination, which means each
party makes free and informed choices.
• Mediator has no power to impose settlement on
the parties but only facilitates the resolution of a
dispute by the parties themselves.
• Mediator is, therefore, responsible for the
conduct of the process while the parties control
the outcome.
 Ground Rules of Mediation
Confidentiality
• it is of the essence of successful mediation that
parties should be able to reveal all relevant
matters without an apprehension that the
disclosure may subsequently be used against
them as well
• Were the position otherwise, unscrupulous
parties could use and abuse the mediation
process by treating it as a gigantic, penalty free
discovery process
 Confidentiality
Mediator must state to the parties
• that he/she and the parties shall keep confidential all matters
relating to the mediation proceedings, and that confidentiality shall
extend also to the settlement agreement, except where its disclosure
is necessary for the purposes of its implementation and
enforcement.
• that unless otherwise agreed by the parties, it would be legally
impermissible for him/her to act as an arbitrator or a witness in any
arbitral or judicial proceeding in respect of the dispute that is the
subject of mediation proceedings and that the parties are not
allowed to introduce such evidence – neither on facts (like the
willingness of one party to accept certain proposals) nor on views,
suggestions, admissions or proposals made during the mediation.
• that the only behavior that might be reported is the information
about whether parties appeared at a scheduled mediation and
whether or not they reached a solution.
 Confidentiality
Mediator must
• maintain the confidentiality of all information
obtained in mediation, unless otherwise agreed
to by the parties or required by applicable law
• ask the party if he/she has any objection to the
disclosure of any specific information to the
other party
• take consent of a party to disclose the substance
of factual information to the other party in order
to give the latter the opportunity to present any
explanation which he/she considers appropriate
 Ground Rules of Mediation
Fair process
Mediator should be guided by
• principles of objectivity, fairness and justice
• consideration of, among other things, the rights
and obligations of the parties
• the usages of the trade concerned and
• the circumstances surrounding the dispute,
including any previous business practices
between the parties
 Assure a fair process
Mediator should
• ensure parties show respect for each party involved in
the process
• allow show of anger or hurt feelings, but no one should
step over the line to abusive words or shouting
• keep an objective eye on the real problem and detach
feelings about the person presenting it

Mediator should not

• act with aggression - it is the problem which is to be
attacked, not the person.
• blame any party as blaming only polarizes people
Ground Rules of Mediation
Voluntary Process

• Mediation is initiated and continued only

with consent of parties
• Parties get bound only if the settlement is
arrived at during mediation, which must
be signed and authenticated by Mediator
 How to Mediate

Most effective in a collaborative environment

with the active participation of the parties as
• parties ultimately derive more satisfaction from
a settlement outcome in which they, rather than
their Counsel, have actively participated
• it allows the Mediator to build a working
relationship and rapport with the parties, based
on mutual trust, understanding and respect
 How to Mediate

• Focus in mediation is on the future with

the emphasis of building relationships,
rather than fixing the blame for what has
happened in the past.
• The parties involved have an opportunity
to step back, introspect and think about
how they could put the situation right.
 How to mediate

Pre-mediation Preparation
• Ask for pre-mediation summary
• Call for mediation all parties that could
facilitate or block a settlement
• Analyse the dispute
 Models to Analyse
Dispute
Commonly used models are :

• The Ranking Model

• The List Model

 Ranking Model

Mediator requires each disputant to

consider and 'rank' in importance the
interests that are of most concern to
that disputant.
 Ranking Model
These interests could include :
•The target or goal that disputant had
wanted to achieve.
•a fair deal or the best deal.
•the need to be vindicated or to 'get even‘.
•personal grievance or need for apology.
•the need to dispose of this dispute and
move on ('get a life').
 Ranking Model
• the time that the dispute is likely to
take if not settled.
• the risks (prospects of success or
failure at trial, consequences).
• the money or costs incurred.
• salvaging a working relationship.
• other projects that may suffer.
 Ranking Model

Each disputant is to then

•repeat the exercise, but this time use

his/her best 'guestimate' to answer as
if he/she were the other disputant.
 Ranking Model
Each disputant is to provide his/her
respective rankings to the Mediator who
is to keep the same confidential.

The Mediator to then

•Consider how the disputants have

ranked the interests that are important to
them;
 The Ranking Model

• Are there any points of agreement

between the lists;

• Where are the points of principal

disagreement;
 The Ranking Model
• Consider over which points a disputant
might be prepared to accept
compromise in return for movement on
interests that are more important.

The Mediator may use the rankings of

both disputants as a framework for the
negotiation and/or to overcome
impasse.
 List Model
Each disputant is guided through BATNA/
WATNA analysis, and is required to

•write a list of the issues that are most

important to his/her case.

•write a list of the strongest points to

his/her case.

•write a list of his/her weakest points.

 List Model

• write a list of the evidence he/she has to

support each issue. The likely evidence of
witnesses to be included.

• identify and write down any issues that are

not supported by evidence.

• write a list of his/her legal arguments to

the best of his/her understanding and
ability.
 List Model

Each disputant is to then

•repeat the exercise, but this time use

his/her best 'guestimate' to answer as
if he/she were the other disputant.
 List Model

• The Mediator must not disclose the

lists of one disputant with the other.

• The Mediator can use the lists as a

framework for the negotiation
and/or to overcome impasse.
 Legal Framework

Civil Procedure Mediation Rules

formulated by Supreme Court in
Salem Advocate Bar Association v
Union of India : (2005) 6 SCC 344.

Rule 11 : Procedure of Mediation

 Rule 11
(iv) each party shall, ten days before a
session, provide to the mediator a brief
memorandum setting forth the issues,
which according to it, need to be resolved,
and its position in respect to those issues
and all information reasonably required
for the mediator to understand the issue;
such memoranda shall also be mutually
exchanged between the parties.
 Rule 11
(v) each party shall furnish to the mediator,
copies of the pleadings or documents or
such other information as may be required
by him in connection with the issues to be
resolved…

(vi) each party shall furnish to the mediator

such information as may be required by him
in connection with the issues to be resolved.
 Arbitration and
Conciliation Act 1996

Section 65 : Submission of statements

to conciliator.
 Section 65
(1) The conciliator, upon his appointment,
may request each party to submit to him
a brief written statement of his position
and the facts and grounds in support
thereof, supplement by any documents
and other evidence that such party
deems appropriate. The party shall send
a copy of such statement, documents and
other evidence to the other party.
 Section 65
(2) The Conciliator may request each
party to submit to him a further written
statement of his position and the facts
and grounds in support thereof,
supplemented by any documents and
other evidence that such party deems
appropriate. The party shall send a
copy of such statement, documents and
other evidence to the other party.
 Section 65

(3) At any stage of the conciliation

proceedings, the conciliator may
request a party to submit to him
such additional information as he
deems appropriate.
 Mediation - Reception and
Seating

• Receive the participants with a smiling

face
• Desirable to stand up to welcome
• Shake hands/Namaste depending upon
the participants – urban, rural, senior
citizens or women
 Mediation - Reception and
Seating
Mediation room should be airy and ventilated, seats
comfortable

Give importance to seating arrangement

• round/ oval /rectangular tables – to ensure closeness,
eye contact and audibility
• chairs for Mediator and parties to be of the same kind
and positioned at the same level
• ask the respective parties to sit closer to you
• parties at dispute are avoided from sitting together
• each party is asked to sit at one side along with its
counsel
 Importance of Seating
Arrangement

Proper Seating

• conveys Mediator is in control

• conveys impartiality
• ensures respective parties and counsel are
grouped together
• ensures comfort
 
 How to mediate
Demeanor of the Mediator

• Have neutral body language

• Use neutral, plain and simple words
• Use words of mutuality that apply to all parties
• Have appropriate eye contact
• Use calm, moderate, business like and
deliberative tone
• Have attentive posture
 Moving from Positions to
Interests
Mediator should shift from positions to interests by
• talking to the parties to uncover their long term interests,
and in the process, discover interests common to the
parties
• using open questions to elicit more facts
• using BATNA, WATNA and MLATNA to show the parties
the alternatives (or rather, the lack of alternatives) they
have should the mediation be terminated
• inviting options again from the parties for settlement
• putting all settlements, no matter how ostensibly
insignificant, on the table
• examining each options one by one as any given option
might just appeal to a party on deeper analysis
 Stages of mediation
Introduction/Opening Statement
• Keep it simple
• Structured process but be flexible in its
application
• Use your own style
• Vary language/ style depending upon the
background of parties
 Opening Statement
The Mediator

• introduces himself/herself, his/her standing, training and successful

experience as a mediator
• expresses his/her hope to bring about a settlement in the present
case
• asks the parties to introduce themselves
• ask parties which language they would prefer to be addressed in and
how they would they like to be addressed
• welcomes their lawyer
• enquires about previous experience of parties and counsel in any
mediation process
• declare impartiality, neutrality and describe the role of the mediator
• addresses confidentiality and neutrality by using appropriate eye
contact, words and body language
 Opening Statement
The Mediator
• emphasizes on the non adversarial process - no
recording of evidence, no judgment or award or
order
• emphasizes the voluntary nature of process
• informs that Court fee is refunded on settlement
• informs that he/she can go beyond the pleadings
and may cover other pending or non pending
disputes
• states the ground rules
 Opening Statement
The Mediator informs the parties about advantages of mediation

• empowers the parties who control the outcome of their case

• provides an opportunity to the parties to talk about their case in
their own words and to directly participate in negotiation of their
claims in a confidential, non-threatening atmosphere without
prejudice to rights
• helps parties understand how the strengths and weaknesses of their
own case and also how the others see and feel about the problem
• enables identification and exploration of all issues, including those
which may not be revealed in arbitration or litigation because of the
application of the rules of evidence
• is a forum for parties to develop creative, non-traditional remedies
that promote their underlying business and personal interests
 Opening Statement
• is arranged at a convenience of parties, at any place at
any time and is not limited to ordinary working days or
hours
• enables business and personal relationships to be
maintained and even enhanced by encouraging
cooperative problem solving
• helps the parties to look at their long term interests
• is as confidential as the law allows allowing the parties to
avoid adverse publicity or the disclosure of commercially
(or otherwise) sensitive information
• is less time and energy consuming than litigation and
cheaper
• brings about finality to the settlement of the dispute
 Opening Statement
The Mediator explains the mediation process (i.e.
give a road map) in simple and plain language
• the Mediator controls process
• there can be joint/private sessions
• there is confidentiality in private caucus
• decorum to be maintained
• no party to contact with Mediator outside
mediation centre
• procedure where there is settlement or no
settlement
 Opening Statement
The Mediator
• manages any outbursts
• handles administrative matters such as breaks or order
of presentation
• determines whether the parties are clear about what to
do
• gets confirmation that the parties want mediation
• invites both parties to state their perspective
- either side can speak first
- assurance of equal opportunity to other
party
 Importance of Opening
Statement
Good Opening Statement
• sets the tone
• helps to create confidence in you
• develops trust
• helps you to take control of the process

Faulty Opening Statement

• results in confusion in the mind of parties
• causes frequent interruption
• people will lose trust and faith
• you loose control over the situation
 Stages of Mediation

Introduction is followed by
• Problem understanding stage
• Needs and interests understanding stage
• Problem defining stage
• Issues identification stage
• Options identification stage
• Options evaluation stage

Stages could be in
– Joint session
– Private session or caucus
 Joint Session

• Parties and respective counsels are present

• Parties advised not to say anything that will
upset the other parties and that any such
information can be stated in private session
• Parties/counsels are allowed to speak without
interruption
• Normally the party is asked to speak first, with
the counsel supplementing with legal issues
• Any friend or relative of the parties are heard too
 Joint Session
• Mediator summarizes after hearing each
party/counsel as to what he has understood
• Parties/counsels may add on any information
• Mediator should accede to the request of parties
who would like to talk
• Mediator may seek clarifications
• After hearing one side, the Mediator listens to
the other side
• No interruptions are allowed
• Decorum and dignity to be maintained
 Shifting from Joint to Private
sessions

• If a party requests for a private caucus, the

Mediator should conclude the joint session
before meeting in private
• Private session with one party should be
followed with private session with other
party
• Explain beforehand that a private session
may take more time with one party
 WHEN TO USE PRIVATE
SESSION
Use private session
• to share private matters and information that cannot be discussed in
joint sessions
• to regain control when a party is getting out of hand
• when the parties are near a deadlock or impasse
• to allow the parties to vent their emotions in a productive manner
• to expose unrealistic expectations
• to shift from discussion to problem solving
• to evoke options for settlement
• to communicate offers and counter-offers

Avoid private session

• when a party can be directly persuaded
• a party can communicate a compelling position.
 Private Session involves
Instilling Confidence
• Mediator reaffirms principles of confidentiality
• assures parties that he/she cannot testify
concerning the mediation
• discussions or any documents/ records given in
confidence are inadmissible as evidence
• information / documents will be kept secret from
the other side
• Mediator helps parties to speak freely, fearlessly
regarding dispute
 Private Session involves
Gathering information
• to understand and identity apprehensions and
concerns of parties to dispute
• to understand any incidental issues
• to elicit true issues of controversy on dispute
• to segregate various conflicts and issues or
interests
• to facilitate proposals for possible negotiation
with the opposite party
 Private Session involves
Reality testing

• A party’s perspective may be incorrect because

- he/she is lying
- has misunderstood his case
- the dispute has shifted positions
- circumstances have changed
- relationships
- economic position
- health or other social conditions
 Reality Testing
• Mediator needs to
- shift parties from unrealistic expectations
- get parties to formulate the strengths and
weaknesses in their case
- get parties to assess the strengths and
weaknesses
- encourage parties to self introspection
- assist parties to realistic situation
- move parties from stated positions
 Private Session involves
Creating options for settlement

The Mediator
• explores sensitive and embarrassing issues
• distinguishes between positions taken by parties and interests they
seek to protect
• examines why these positions are being taken
• identifies areas of dispute and what parties have previously agreed
upon
• identifies common interest
• identifies each party’s differential priorities on different aspects of
the dispute
• formulates issues for resolution at mediation
• ascertains possibility of trade-offs
• elicits various options from the parties themselves
 Private Session involves

Evaluating Options
• Once the options are available, the Mediator
starts to evaluate each options one by one
• The Mediator identifies options addressing
interests and concerns of both parties
• Such private sessions lead into joint sessions to
finally bridge the gap, if required, and to
formulate settlement terms
 Common mediation tools and
techniques
• Summarizing : the Mediator restates the essence of the statement of
the party briefly, accurately and completely
• Acknowledgement : the Mediator reflects back the statement of a
party in a manner that recognises that party’s perspective
• Re-directing : the Mediator shifts the focus of a party from one
subject to another in order to focus on details or respond to a highly
volatile statement by a party
• Deferring : the Mediator postpones a response to a question by a
party in order to follow an agenda or gather additional information
or defuse a hostile situation
• Setting an agenda : the Mediator establishes the order in which the
issues, positions or claims are to be addressed
 Common mediation tools and
techniques
• Handling reactive devaluation : the Mediator
takes ownership of an information or statement
of a party in order to pre-empt the other party
from reacting negatively to such information or
statement solely based on the source of the
information
• Neutral reframing : the Mediator restates an
offensive or inflammatory statement of a party in
an inoffensive manner so as to take the sting out
of the statement and focus on a particular aspect
of the statement
 Impact of Emotions

Mediator to be familiar with his/her own

reaction when faced with emotions, and be

prepared to handle them

 Handling Emotions in
Mediation
Mediator to :

•utilise active listening to verify the sincerity of the emotion

•identify the source or reason for the emotion and address

the cause, not the behaviour
•observe curtsies like offering a glass of water or tissue to
the party who is emoting
Handling Emotions in Joint
Session
Mediator could

• invite parties to disclose the emotional impact of the situation or

express their feelings to one another

• insist that order be maintained

• move to an easier issue on the agenda

• get the parties to deal with one issue at a time

• simply suggest a recess

 Handling Emotions in
Private Session
Mediator could
• encourage the party to vent so that the release of emotion
would inculcate a feeling of discharge and relief, and
facilitate his or her moving onto other issues
• ease into discussing the emotional impact of the conflict
on the well being of that party and the urgency for
closure to the trauma
• get the party to suggest what it would take him/her to
move on
• get the party to evaluate his/her options
 Role of Silence in Mediation
Silence can be helpful to the party because it

• gives the party the platform to vent the uppermost issues

in his or her mind as also the underlying needs
• allows the party to dictate the pace of the conversation
• gives time for thinking before speaking or for giving
clarifications
• enables the party to choose whether or not to go on
 Role of Silence in
Mediation
Silence can be useful to the mediator because it

•demonstrates interest, respect and patience

•is effective in building trust, rapport and credibility

•gives an opportunity to the mediator to observe the

party to pick up non-verbal clues
 Role of Apology in Mediation
• Apology is to acknowledge and express regret for
a fault without defense

• The emphasis is on that the act done cannot be

undone but it should not go unnoticed

• Mediator to formulate expression of regret in a

mutually acceptable manner
 Face-saving Approach
• Mediator to bear in mind that fear of losing face
is also a powerful emotion to make parties stick
to their positions or continue with litigation

• Mediator to explore settlement options that give

honourable “exit”
 Restorative Justicing in
Mediation
 
•Restorative Justicing recognizes that
harm/hurt is caused to people, not just to the
system or the State.
 
•Focus of justice should be on repairing the
harm, rather than mere affixing of civil liability
or deterrence/retribution by way of punishment
 Approach
 
Formal Legal system
•What happened ? Who is to blame ? What is
his/her liability ? What punishment is required ?

Restorative Justicing
•What happened ? What harm has resulted ?
What needs to happen to make things right ?
 Distinctiveness
S. No. Formal Legal System Restorative Justicing
1. Act/Offence is viewed in Act/Offence is viewed in terms of
terms rights and liabilities harm that is done to a person or a
or of violation of the law community
as a crime against the
State
2. Focus is on establishing Focus is on the harmful
the blame or the guilt by consequences of the defaulting
the defaulting party/offender’s behavior in
party/offender’s past order to repair the harm or
behavior resolve the problem
3. Accountability means the Accountability means the
defaulting party suffering defaulting party/offender
liability/offender suffering demonstrating genuine regret,
punishment empathy and helping to repair
harm
 Distinctiveness
S. Formal Legal System Restorative Justicing
No.
4. Strict and rational Allows and encourages free
application of the law expression of emotions
divorced from emotions
5. Lack of healing as also Healing, empowerment and
disempowerment of those involvement of those who have
who have been affected, been affected to bring about a
who are instead closure
represented by
professionals

6. Stigma of act/crime is Stigma of act/crime can be

permanent removed through appropriate
  actions by the defaulting
party/offender
 Distinctiveness
S. Formal Legal System Restorative Justicing
No.
4. Strict and rational Allows and encourages free
application of the law expression of emotions
divorced from emotions
5. Lack of healing as also Healing, empowerment and
disempowerment of those involvement of those who have
who have been affected, been affected to bring about a
who are instead closure
represented by
professionals

6. Stigma of act/crime is Stigma of act/crime can be

permanent removed through appropriate
  actions by the defaulting
party/offender
 Distinctiveness
S. No. Formal Legal Restorative Justicing
System
7. Defaulting party/ Defaulting party/Offender is
Offender is encouraged to take responsibility for
passive, given little the incident and to repent or seek
encouragement for forgiveness
repentance
 
8. Rights and needs Rights and needs of the victim of an
of the victim of an offence is recognised in order to ensure
offence are the well being of the victim
secondary in order
to ensure fair trial
to the accused
Purpose of Joint Session in
Restorative Justicing

• The Joint Session is a platform for the defaulting

party/offender, the aggrieved party/victim and
their respective family members to translate
negative emotions to positive emotions.

• The Joint Session aims to formulate a plan to

repair the harm caused by the act/offence.
 Stage for having the
Joint Session
The Session should be held after the mediator has
• heard each party sharing their respective
perspective about the conflict
• understood the needs and interests of each party
• reformulated the issues outstanding between the
parties
 Pre-Session preparation
Mediator to

•first enquire from the defaulting

party/offender about the possibility/feasability
of having the Session, and then ask the
aggrieved party/victim
•explain the purpose of the Joint Session and
its benefits
•emphasise the voluntary nature of the process
•give a road map of the process
•secure attendance of all affected parties
 Pre-Session preparation
Mediator to be prepared to handle the
compass of shame of the defaulting
party/offender

•withdrawal
•avoidance
•attacking self
•attacking others
 The Joint Session
Should the parties agree to having the
Joint Session, it is to be held

•in a neutral venue with a large room

and appropriate seating
•with sufficient time in hand
•with proper infrastructure to allow
breaks and refreshment
 The Joint Session
The seating plan should ensure

•All present sit in a circle or oval arrangement

•There should not be any obstruction in terms
of tables or furniture
•The aggrieved party/victim/supporters sit on
one side of the Mediator and the defaulting
party/offender/ supporters sit on the other
side
 The Session Script
Mediator to
•Introduce those present indicating their relationship
to aggrieved party/victim and defaulting
party/offender
•Address those present by their names throughout the
process, not with reference to aggrieved party/victim
or defaulting party/offender
•Thank all present for attending
•Emphasise that “We are not here to decide if (name
of the offender) is a good or bad person”. Rather, “We
are here to find out how people have been affected by
the incident and how to repair the harm that it
caused”
 The Session Script
Mediator to ask the defaulting party/offender

• What happened ?
• What were you thinking at that time ?
• What have you thought since then ?
• Who has been affected by what you have
done ?
• How has that person been affected ?
• What do you think you need to do to make
things right ?
 The Session Script
Mediator to ask the aggrieved party/victim
 
•What was your reaction ?
•What did you think when you realised
what had happened ?
•What impact has this incident had on you
and others?
•What has been the hardest thing for you ?
•What do you think needs to happen to
make things right ?
 The Session Script
Mediator to ask first the aggrieved
party/victim’s supporters, and then the
defaulting party/offender’s supporters

•What did you think when you heard what

had happened ?
•How do you feel about what happened?
•What has been the hardest thing for you ?
•What do you think are the main issues ? 
 The Session Script
Mediator to then ask each present :
•What suggestions do you have that will stop
further hurt/harm ?
•What will help all of us to work together
again, without further conflict ?
•What would you like to see come out from
today’s meeting ?
•What will each of you do now to help
improve your relationship with one another ?
•What have you found useful from today’s
meeting ?
 The Session Script
Mediator should, in case of an agreement,

•summarise the terms before putting the same

in writing
•ask, post agreement, if anyone needs to say
anything
•emphasise that the Session will be followed
by an informal social gathering of all present,
which is aimed to amicable parting of ways
and to bring closure
 Role of Mediator in
Restorative Justicing
• To control the process in a neutral, deliberative,
non-evaluative and non-judgemental manner
• To use the facilitative skills to build rapport,
trust and empathy
• To use open ended questions to encourage those
present to respond how they were affected
• To encourage those present to exchange ideas,
develop a plan to address conflict and repair
harm
 Handling Impasse

Mediator could

• shift gears between private and joint sessions get the parties to do a
reality check on how “foolproof” their case actually is
• have a private session with the counsel if he/she has given legally
untenable advise to his/her client who is falsely assured that he/she
is bound to win in litigation
• warn the participants/ bring the parties together to acknowledge the
situation
• solicit any last ditch efforts
• change atmosphere/use humour to relax atmosphere
• revisit issues, or areas of agreement
• proceed with preferably an easier issue
 Handling Impasse
Mediator could

• ask parties about cause of an impasse

• ask parties to suggest options to overcome the deadlock
• praise work and accomplishments of parties
• try role-reversal
• propose hypothetical solutions
• suggest (or threaten) ending the mediation
• suggest third party/ expert intervention
• allow emotions to emerge
• take a break
 Settlement Agreement

• The settlement agreement to be reduced in writing

• The settlement agreement to

- comprise the statement about parties’ future relationship
- describe responsibility of each party in implementing the
settlement
- be clear, concise, complete, concrete realistic and workable
- be balanced and should reflect each party gaining something
- be positive, without any blame assessment
- contain non-judgmental language

• The settlement agreement can be drafted by the parties but it is

preferable if it is drafted by the Mediator
 Drafting and Signing
Settlement Agreement
• The Mediator to orally recite the terms of the settlement, clarify the
terms and confirm the terms before putting it down.
• While drafting an agreement, the Mediator to
- be specific and must avoid ambiguous words such as
"reasonable", "soon", "frequent", "Co-operative", "practicable"
- state clearly “who” will do “what”, “when”. “where”, “how”,
“how much” and “how long”
- avoid legal jargon and use plain language, preferably the
language of the parties
• The parties to the agreement to sign each page, while the counsel to
sign on the last page.
• Once the settlement agreement is signed by the parties, the
Mediator to authenticate it and furnish a copy of the same to each
party
 Ending Mediation

• Mediator to pay special attention on a proper ending to

the mediation process, which is the outcome of the
efforts of the parties.
• If parties don’t come to terms, Mediator to congratulate
them for the progress made, with hope for settlement in
future.
• There is no such thing as failed mediation.
• If parties come to terms, Mediator to congratulate
parties.
• Mediation ends on the date of the settlement agreement.
 Mediation is NOT giving
advice, opinion or
given to a client
counselling
• Advice : Your particular instructions and detailed suggestions for action

• Opinion : Your views of the merits of the case including an evaluation of the
strengths and weaknesses of the case

• Legal Counselling : Process by which the counselor addresses the client's

problems broadly by presenting before the client a full range of options,
both legal and non legal, that suit the client’s identified need and personal
characteristics so that client is sufficiently informed to take the initiative.
Results in an intense relationship of counselor with individual clients

• Mediation : Neutral relationship is to be preserved with parties. The private

session is only to facilitate negotiation for a specific dispute and for
application of problem solving techniques used
 Ethical standards of a
Mediator
• He/she should uphold the integrity and fairness of the
mediation process
• He/she should ensure that the parties involved in the
mediation and fairly informed and have an adequate
understanding of the procedural aspects of the process
• He/she should satisfy himself that he is qualified to
undertake and complete the mediation in a professional
manner
• He/she should disclose any interest or relationship likely
to affect impartiality or which might seek an appearance
of partiality or bias
• He/she should avoid, while communicating with the
parties, any impropriety or appearance of impropriety
 Ethical standards of a
Mediator
• He/she should be faithful to the relationship of trust and
confidentiality imposed in the office of mediator
• He/she should conduct all proceedings related to the
resolutions of a dispute, in accordance with the
applicable law
• He/she should recognize that the mediation is based on
principles of self-determination by the parties and that
the mediation/conciliation process relies upon the ability
of parties to reach a voluntary agreement
• He/she should maintain the reasonable expectations of
the parties as to confidentiality, refrain from promises or
guarantees of results
 Mediation Skills Training
Role-Play
 
Why Role Play

• Role-playing offers the learner the opportunity to try out mediation

skills in an environment that is comfortable, safe and forgiving of
errors.
• The Mediator learns by doing
• The counsel learn by their interactions with the Mediator and
opposing counsel
• The litigant learns by watching the interactions between the counsel
and the Mediator as well as their own communications with their
counsel and with the Mediator;
• All participants experience which mediation techniques and
behaviors are helpful and which hinder mediation.
 Mediation Skills Training
Role-Play Instructions
Tasks During the Role-Play

• While watching the role-play, ask yourself - What would

I do next? What is going well? What are the issues? How
are the parties communicating and negotiating ?

• A group debriefing will also take place when you return

to the full group session. Please highlight any significant
insights you gained during the role-play. 
 Mediation Skills Training
Role-Play Instructions
Mediators

• Identify yourself to the faculty as the Mediator

• Study the appropriate role-play script so that you can get
the most of the role-play experience
• If you have questions, ask your faculty
• Take the mediator role seriously and stay in role until
directed otherwise
• The objective of the role-play is to learn the process and
practice more facilitative settlement techniques
• The goal is not necessarily to get the case settled within
the role-play time period
 Mediation Skills Training
Role-Play Instructions
Counsel and Litigants

• Read your background information and role carefully. It you have

any questions, ask your faculty.
• Counsel and their clients should meet for approximately 5 minutes
before the role-play begins.
• Stay in role until directed otherwise by your faculty.
• Give the Mediator a robust, but reasonable, level of difficulty to deal
with.
• Make it interesting, but not impossible.
• Don’t make up information or motivations that are not in the script.
You may need to invent a little in order to remain in role and
respond to the dynamics of the role-play. That is acceptable so long
as it is truly consistent with your role and the case facts.
 Power of Words
 
• Proposals instead of Offers /Demands

• Resolve instead of Compromise

• Invite brief presentations /

descriptions/perspectives instead of stating version/story

• Talk about interests instead of positions

• Speak about commonalities instead of differences

• Seek to learn instead of to tell

• Use we instead of I

• Emphasize movement instead of impasse

 Power of Words
• Be positive instead of negative

• Use names instead of plaintiff, defendant, claimant

• Speak of situation/concerns instead of problems / dispute

• Talk about solution instead of dismissing theirs

• Explore instead of debate

• Offers are firm instead of non-negotiable

• Focus on rewards instead of concessions

• Offer choices instead of ultimatums

• Discuss details instead of making assumptions

 Helpful Questions and
Phrases for Mediators

INTRODUCTION

• Welcome and thanks for participating in

mediation.
• Are comfortable enough to proceed?
• What is your understanding of what is to
take place during this session?
 Helpful Questions and
Phrases for Mediators

INTERRUPTIONS
• We agreed in the ground rules not to
interrupt and to focus on issues.
• One at a time please.
• We agreed to conduct this in an orderly
fashion. I suggest we get back to …..
 Helpful Questions and
Phrases for Mediators

GATHERING INFORMATION

• Can you tell us about the situation?

• Can you tell us what happened?
• How are you feeling about that?
• How are you feeling about…..?
 Helpful Questions and
Phrases for Mediators
FOCUSING ON FUTURE

• We can’t change what has happened in the past; let’s

focus on the future.

FEAR & DISTRESS BETWEEN PARTIES

• What is it that you’re afraid is going to happen in

mediation?
• What action could (person’s name) take to make you feel
better?
 Helpful Questions and
Phrases for Mediators
PROBLEM IDENTIFICATION & CLARIFICATION

• Can you tell us more about that?

• Would you tell us more about ….?
• What do you mean by……?
• Can you explain more about…?
• Can you give some examples of …..?
• What happened when…..?
• What is different?
• What was it like before?
• Has this problem happened before?
• Can we clarify again what happened?
• What would you like to see changed?
 Helpful Questions and
Phrases for Mediators
PROBLEM IDENTIFICATION & CLARIFICATION
• Is there anything you would particularly like to say to (the other person) ?
• What else do you think is important to know to fully appreciate this
situation?
• Is there anything else you care to add?
• Is there anything we still need to address?”
• What facts or feelings do you think they are misinterpreting, that if they
understood, would allow them to look at the situation differently?
• What facts or feelings do you think they believe you are misinterpreting?
• Are there issues you would still like to discuss?
• As I understand your situation….
• Please correct me if I’m wrong, but….
• Could I ask a few questions to clarify things in my mind?
• Let me see if I understand.
 Helpful Questions and
Phrases for Mediators
GENERATING OPTIONS
• How can we address interests of A, while at the same time addressing
interests of B, thereby satisfying your common interest in …….?
• So, in other words, when (name) says….. you feel …..is that right?
• Is there anything else you’d like to tell us?
• Is there anything else you think might help us today?
• How could you have handled it differently?
• Can you suggest a solution that will resolve the problem of …..?
• So you would agree to …..?
• (name) wants…. Is there any way you could support that?
• Is that really possible?
• Do you see any way of doing that?
• Do you think you can live with that?
 Helpful Questions and
Phrases for Mediators

GENERATING OPTIONS

• Can you be more specific about what you need?

• How would you like to see this situation resolved?
• What are you willing to do to resolve this suit?
• What options do you see to take care of these problems?
• Those are possible solutions, what else can you suggest…?
• I have seen “X” work for some people in this situation; can you see
some variation of “X” working for you?”
• What do you think is appropriate in this case?
• In the future, how can you can you keep the problem from
happening again?
 Helpful Questions and
Phrases for Mediators

PASSIVE PARTY

• What do you want to accomplish today?

• We haven’t heard from you. Is there
something you’d like to say?
 Helpful Questions and
Phrases for Mediators
SELECTING OPTIONS

• What is best for you?

• What needs or interests do you have that are important here?
• What are the priority problems for you?
• What do you suggest Mr. or Ms. “X” should focus their efforts on primarily?
• Can you see any see any problems developing?
• Where should this take place?
• When should this happen ?
• What would you consider to be a reasonable alternative to…..(their
proposal)?
• What would you think if they proposed….?
• What would be helpful at this point?
  
 Helpful Questions and
Phrases for Mediators
IMPASSE

• What would it take for you to continue this session?

• What is your relationship going to be in the future?
• Let’s identify some common interests.
• What do you think will happen if we don’t settle this
today?
• We appear to be momentarily stuck, what can we do to
get back on track?