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Why mediation is the link between all forms of dispute resolution FB

Why Mediation Is The Link Between All Forms Of Dispute Resolution

by Alexandra Piscionere

In recent years, Singapore is demonstrating to the world its global prowess in becoming a hub for arbitration.  With the mass expansion of Maxwell Chambers and other projects to create new dispute resolution centers, Singapore is preparing itself for an even larger increase of international dispute resolution cases than it has already seen.  According to Singapore's Second Minister for Law, Indranee Rajah S.C., "One of Singapore's key strengths as an international dispute resolution centre is our legal system which is neutral, stable, has high quality jurisprudence and is trusted by businesses.”  The choice for the June Summit between leaders Donald Trump and Kim Jong-Un to be held in Singapore has more than likely been the extra exposure that the global dispute resolution arena needed to see Singapore as an ideal forum.  Although the Singapore government has primarily emphasized arbitration as the country’s specialty, it is now in an ideal position to allocate its resources and efforts into all aspects of dispute resolution, particularly mediation.  In fact, mediation may be an essential key to a successful arbitration or even to preventing unnecessary arbitration.

The four most common forms of dispute resolution are negotiation, mediation, arbitration, and litigation. Each of the types varies in cost, structure, and end result, among other aspects.  There are therefore advantages and disadvantages to choosing one form of dispute resolution over the other.  Although arbitration rules differ among jurisdictions and forums, the process typically mirrors courtroom procedure in the respect that the determination is ultimately made by an arbitrator.  One key advantage that arbitration has over litigation is that arbitration awards can be enforced in any countries that are signatories to the NY Convention, while court judgments are generally only enforceable in the country in which the judgment was rendered.  However, the advantages of arbitration often have more to do with the perspectives of the parties than with the forum itself.  For example, a perceived advantage of arbitration is that it is speedier and less expensive than filing a lawsuit.  However, depending on the complexity of the matter and, more importantly, the parties’ willingness to either settle the matter efficiently or to mutually agree not to intentionally delay the process, the advantages of arbitration could be minimal.  This is where mediation comes into play.

In a mediation proceeding, a mediator acts as a facilitator in a mutually agreed-upon settlement, which is binding to the extent that the parties decide.  In the U.S., for example, many courts use court mediators as a first and primary course of action before proceeding to trial in an effort for the parties to have the opportunity to craft a solution of their own choosing.  It is also a way for the court to “take the temperature” of the parties to understand the complexities of the matter and the willingness of the parties to cooperate.  On many occasions, these matters are settled before this initial pre-trial mediation.  In other instances, mediation occurs concurrently with the court case, saving time and money for the parties, as a settlement will often be reached before the trial is finished.

Furthermore, mediation can serve as a tool to maximize the benefit of other alternative dispute resolution mechanisms, such as arbitration.  Mediation is generally lower in cost than arbitration and is tailored specifically to the needs of the parties.  Through the mediation process, the parties can gauge whether mediation is likely to be successful, whether arbitration is their best option, or even whether another avenue is better suited.  Ultimately, the one aspect linking all of these avenues is mediation.  It is the essential problem-solving tool that provides the clarity necessary to all parties involved which occurs uniquely when they can sustain a dialogue towards crafting solutions tailored to their needs.  Laying out all cards on the table, so to speak, not only allows the parties to understand each other but also allows the parties to understand themselves and gain a better sense of what they would like to get out of the process.  Even if the parties ultimately decide to proceed with arbitration or litigation, they are still in a better place after mediation because of the clarity they gain just by going through the process.  Sometimes just the agreed-upon decision to go through mediation alone could be the first step towards conciliation.

In promoting Singapore as a global frontrunner for arbitration, it would be a disservice to count out mediation as an essential tool to facilitating both successful settlements and successful arbitrations.  Forums such as the Singapore Mediation Centre and the Singapore International Mediation Centre are a welcome beginning to turning the country into a hub for successful alternative dispute resolution.  However, it is only when we associate mediation with successful dispute resolution in all its forms that Singapore will begin to reach its full potential in becoming a global hub for dispute resolution.

 


Alexandra Piscionere is a New York attorney who served as Director and Investigative Counsel of the Westchester County Human Rights Commission and clerked for a New York Supreme Court Judge.  She honed her mediating skills in these roles and specialized in sensitive topics such as divorce and discrimination.  She is also the co-chair of the International Human Rights Committee of the New York State Bar Association.  She is currently based in Singapore.

Peacemakers offers the services of internationally accredited mediators with extensive experience in resolving local and international conflicts. If you are involved in a dispute, let us know your requirements via email at mediate@peacemakers.sg, and we will recommend you the mediators that best meet your needs!

and a little child shall lead them - FB

And a Little Child Shall Lead Them – Peacemakers 2018

On 12 July 2018, our Training and Development Advisor, Professor Joel Lee, published a blog post on the Kluwer Mediation Blog entitled “And A Little Child Shall Lead Them – Peacemakers Conference 2018”. His blog post is reproduced in full below.


I have in previous entries (July 2012 and July 2013) written about a peer mediation initiative called the Peacemakers Conference. The purpose of the Peacemakers Conference is to teach 13-16 year olds how to resolve conflicts amicably in a workshop cum competition format. This year’s Peacemakers Conference was held from 20 to 22 June 2018.

As in previous years, we asked students from different schools to work together to create a visual metaphor for mediation. This started in 2015 and has become a regular feature in the Peacemakers Conference. Metaphors from previous years be found in the entries for November 2015August 2016 and July 2017.

This year, the students came up with 8 (plus 1) visual metaphors which I would like to share with readers in this entry. For each of these, an image of the students presenting the metaphor is shared along with a description of the metaphor.

I would like to acknowledge the efforts of Ms. Charmaine Yap, Ms. Samantha Lek, Mr. Sean Lim and the Peacemakers Facilitation team for capturing the description and images of each of the metaphors that appear below.

MEDIATION METAPHORS

GROUP 1: Mediation is Magic

Mediation is Magic

Mediation is magic, and the Patronus deer that is summoned when Harry Potter casts the Expecto Patronum spell was chosen to represent the idea of magic. The spell is a charm that drives away life-sucking beasts, but is famously difficult to cast. This is like mediation – the difficult nature of practising mediation, mediating conflict, and solving conflicts and problems. When Harry Potter casts this spell, he has to recall a happy memory. However, he had to try this a lot of times, and only succeeded when he tried very hard. Similarly, if mediators do not mediate properly, the mediation will not work well, and might even make the situation worse.

Magic is also universal among everyone. From the old to the young, everyone appreciates magic. This is similar to peacemaking and mediation – everyone there is there to appreciate and understand it.

Mediation is also magical because by merely asking questions, people can be guided together. Just as there are endless types of spells, there are endless types of solutions in mediation. It is up to the mediator to ask parties questions to guide them along.

The Patronus is a beautiful animal. Harry Potter’s Patronus is a stag. Similar to mediation, it is the unpredictable and beautiful result of parties working on a framework to resolve the problem together.

GROUP 2: Mediation is the Lighthouse that guides relationSHIPS

Mediation is a Lighthouse

The lighthouse is a guide in the dark. The lighthouse symbolises the mediator, and the ships symbolise the parties. The lighthouse guides ships to land without piloting them. Similarly, the mediator guides parties to a solution without giving it to them. The darkness of the night sky symbolises how parties are unable to see each other’s perspectives, but the light from the lighthouse helps them to see each other and their common destination.

GROUP 3: Mediation is like a Camera Tripod

Mediation is like a Camera Tripod

The tripod’s three stands represent the mediator and two parties. All three support one another for the foundation of the picture, and have to support one another in order for the camera to work. They also maintain level ground for the camera. If any one of these elements are missing, the picture will not be beautiful.

The camera has to be on a level plane in order to work. This represents the mediator’s neutrality. The camera cannot stand without the mediator or one of the parties missing, and will fall. This shows how crucial each party is to the mediation.

The height of the tripod can be adjusted. This represents the flexibility of altering perspectives throughout the mediation session.

Just like how pictures in the camera can be deleted, conflict can be deleted at mediation. All the pictures taken are stored on the memory card, and are gone from the camera when the memory card is removed. This represents confidentiality at mediation.

Everyone can exercise their autonomy to participate by being in the picture. Similarly, anyone can participate in mediation and benefit from the process.

The camera’s zoom out feature allows the mediator to move away from the narrow tunnel vision and look at the big picture, while the focus feature allows parties to focus on what others are saying and listen attentively to one another.

GROUP 4: Mediation is a Missing Puzzle Piece

Skit:
– “I have a puzzle but the two pieces won’t fit.”
– “Should I cut it up?”
– “But the puzzle won’t look nice?”
– “I found another piece.”
– “Oh wow it fits perfectly!”

Mediation is a Missing Puzzle Piece

Mediation is like a missing puzzle piece that connects two parties together that are imperfect. Having to cut a puzzle piece in order for them to fit is like parties sacrificing part of their interests in order to come to a compromise. Like a missing puzzle piece, mediation allows parties to reach a mutually acceptable solution that doesn’t require either to give up what is important to them. A beautiful picture is formed by the pieces fitting together, the way a solution is reached when parties and the mediator come together.

GROUP 5: Mediation is a Pair of Swans

Mediation is a Pair of Swans

Mediation is a pair of swans, because swans are gentle and peaceful. When both swans are put together, the shape their necks make is a diamond. Just like how a diamond is hard to obtain, mediation is hard to master. Both also play important roles in society. A diamond can be used as a tool to shape or carve other things, while mediation is a tool we use to sort out problems.

The spectacles on the swans show that viewing things through different lenses can help make things clearer, and help you see things from different perspectives. The bridge in the background is to commemorate the previous year’s winning metaphor.

GROUP 6: Mediation is a Compass

Mediation is a Compass

A maze has multiple entry points, each leading to the centre via a unique route. Similarly, parties enter mediation with a unique perspective. What they see, experience, and the obstacles they face can be very different from one another. When they reach the end point, there is conflict. Parties think they know each other’s stories since they are in the same space. They assume that they had experienced the same thing since they are in the same maze, but what they had gone through may be different. This is a form of tunnel vision – assuming what they experienced is the same. When that is not the case, it leads to conflict.

A compass needs a needle, cardinal directions, and its casing to work. Likewise, mediation cannot proceed if either party or the mediator is absent.

Confidentiality: The fact that the compass is enclosed in an opaque maze represents confidentiality since no one outside the maze can get an idea of what is happening in the maze.

Neutrality: Only when the compass is on a flat surface will it work well. Similarly, neutrality must be maintained by the mediator for the most effective outcome.

Autonomy: Parties choose whether they want to hold the compass or to be guided by it. The compass helps parties see different sides and perspectives to the issues by allowing them to learn about the stories of different parties. This avoids tunnel vision.

This is where mediation comes in. Mediation helps parties see different perspectives to the complicated issue by learning about the other parties’ stories. Because parties have different orientations, turning in the same direction might not necessarily set the other party on the same route. However, a compass will set parties on the same route (by guiding them North, South, East, or West), towards a solution that they can all agree on together.

Mediation is a compass because it can help parties see the complete picture, set common ground, and guide them through conflict.

GROUP 7: Mediation is a Tightrope

Mediation is a Tight Rope

A tightrope is very thin, and you have to be very focused to not lose balance. Maintaining balance is like maintaining neutrality. If you don’t maintain neutrality, you will fall. Similarly, the mediation process will not proceed well if the mediator is not neutral.

Although the tightrope is very thin, it still connects two points together. Similarly, mediation brings two parties (represented by the mountains) together. We (the students) have written everyone’s names on the tightrope in order to convey that everyone has undertaken the challenge of mediating between two parties.

GROUP 8: Mediation is a Needle

Mediation is like a Needle

There are different kinds of needles.

Threading Needle

A threading needle patches up holes in fabric, and binds different pieces of fabric together to make something beautiful. Likewise, the mediator enables parties to reach resolution. Just like how the needle guides the thread, the mediator guides parties. However, the needle can also cause hurt – it can pierce you and cause you to harm yourself. Similarly, mediation can also cause harm if it is used wrongly.

Syringe Needle

Mediation can help people recover from emotional wounds. A syringe draws out blood, like how mediation draws out conflict. A syringe needle must also be precise – specific mediation techniques need to be applied depending on the context.

Acupuncture Needle

Acupuncture needles are pin needles – they need to be inserted precisely and accurately, otherwise the patient will be in a lot of discomfort. Similarly, if the mediator says something that makes parties uncomfortable, then parties will be in a situation of discomfort. However, if the acupuncture is done well, blood will flow well into the areas that are stressed, relieving the patient of pain. This is similar to the relief mediation provides if it is done well.

SPECIAL MENTION: Mediation is a Toilet

Mediation is like a Toilet

The three principles of mediation are: (i) autonomy, (ii) neutrality, and (iii) confidentiality.

  • Autonomy: Just like mediation, you can choose when, where, or how you use the toilet. You can use it in the day or night, and decide how long you want to use it for. You can even use what type of toilet you want to use – the squatting type, sitting type, or even a potty.
  • Neutrality: Long or short, big or small, the toilet will not judge.
  • Confidentiality: Whatever is made in the toilet, stays in the toilet. After the work is done and you use the flush, all evidence is destroyed.

The cubicle is like a mediation centre. You can go whenever you like, and leave only when you are satisfied.

The 4 stages of the mediation process is similar to going to the toilet.

  • Opening: You are apprehensive because you don’t know what you will find in a toilet. But when you are really urgent, you go in anyway.
  • Information Gathering: This is when you release the poop. Sometimes there is so much that you don’t know where to begin. But once you get comfortable, everything starts pouring out. Some get constipation, while others get diarrhoea. Everyone goes through pain, and it takes time and effort, but things will come through sooner or later. After that, you can step out and take a breath of fresh air.
  • Problem Solving: The flushing comes after you have been satisfied. It is only when you get everything out, that you are ready to start afresh.
  • Closing: Now you can step out of the smelly cubicle and start afresh, since you have gotten everything out of the way.

“Pissmakers – Helping you get your shit together”

That brings us to the end of another installment of visual metaphors for mediation! I hope readers found some of these as inspiring as we did!


For more pictures and videos of the Peacemakers Conference 2018, please visit the Peacemakers Facebook Page.

As Singapore’s leading peer mediation experts, Peacemakers has an extensive track record of managing and delivering conflict resolution training for youth at both local and international levels. If you would like to train your youth to better manage conflict, let us know how we can help via email at mediate@peacemakers.sg.

3 Ways Crisis Negotiation Skills Can Help Mediators Deal With Parties (Part 1) - FB

3 Ways Crisis Negotiation Skills Can Help Mediators Deal With Parties (Part 1)

by Therese Tiffany Ang

A meeting over the direction of a startup is going badly. A team member refuses to buy into the vision that the management has crafted, and it seems that the dispute will not be resolved. Just then, the CEO steps in. In a shift that seems almost magical, the member comes around and fully supports the new vision. I ask the CEO what he did, and he replies, “It’s something I read about in a book by an FBI hostage negotiator.” 1

Many of us have struggled to deal with difficult or emotional parties when trying to resolve disputes. When I read the above excerpt for the first time, it struck me that there was something that could be learnt from how crisis negotiators deal with their parties in high-stress situations. Crisis negotiations typically involve situations where parties are driven by heightened negative emotions (like anger and fear) at the detriment of rational thinking. Rather than aiming to separate people from their emotions, crisis negotiators place an emphasis on using skills that not only elicit the verbalisation of interests, but that manage and mould parties’ emotions in order to guide them towards collaborative problem-solving behaviour. Using this approach, many peaceful resolutions have been reached with hostage-takers, barricaded subjects and with those involved in suicide attempts.

This series of blog posts aims to see how crisis negotiation skills can be applied in the practice of mediation, and more specifically, how such skills can be applied to help mediators better deal with emotional or difficult parties in mediation.

As in the traditional interest-based approach, crisis negotiators typically begin by identifying a party’s interests by building rapport and trust. This first entry focuses on one commonly used technique – active listening.

 

What is Active Listening?

Active listening is listening and responding to a person’s feelings in a manner that shows genuine concern and empathy. In mediation, this skill is helpful in two ways:

(1) Informative: The mediator can collect vital information about the party’s interests and strategies.

(2) Affective: The mediator’s demonstration of empathy helps to defuse any negative emotions the party might have. It also builds rapport and trust so that the mediator can subsequently influence a collaborative behavioural change in that party.

 

Micro-skills Used in Active Listening

In order to optimally benefit from the informative and affective effects of active listening, negotiators use a large variety of micro-skills. We will explore five of them in this entry.

 

(1) Open-ended questions/statements

Open-ended questions and statements can be used to clarify information and to help mediators demonstrate to the parties that attention is being paid to them and their feelings.

A good open-ended statement is non-judgmental and shows interest in the party’s story. Questions like, “Sounds like you had a rough time. Can you tell me your side of the story?” are more likely to build rapport between the mediator and the party so that the former can gain more information about the latter’s interests and concerns, which are crucial for facilitating collaborative problem-solving. In contrast, factual questions like, “Did you really supply a defective good?”, typically diminish rapport significantly and tend to only result in unhelpful “yes/no” answers.

 

(2) Effective pauses

Silence can be extremely helpful if used strategically. For instance, if used after an open-ended question, an effective pause allows the party to collect his thoughts and encourage sharing. As crisis negotiators have found, this is particularly important when parties are overwhelmed with emotions. This is because people in such circumstances tend to have more to say, but need a longer time to process their thoughts.

Effective pauses can also be used after an emotional outburst to defuse heightened feelings of anger, hurt and frustration. When utilised strategically, such pauses can sometimes be more helpful than direct intervention because they give parties the space to ventilate their emotions. Eventually, like a swamp being cleared out, even the most emotional people can be calmed down.

 

(3) Minimal encouragers

Brief, well-timed encouragers like “and” and “yes” indicate that the mediator is paying full attention to the party and wants to know more. They help create room for explanation without forcing parties to close-up to defend their position.

 

(4) Mirroring

Mirroring is a sign that people are in sync and developing the kind of rapport that leads to trust. Crisis negotiators focus on mirroring the last few words said by party. This has proven to be effective in facilitating bonding and in getting parties to keep sharing information, because it triggers their instinct to sustain the process of connecting by elaborating on what they just said.

 

(5) Paraphrasing

While mirroring is effective, using it too often may give a party the impression that the mediator is merely parroting his concerns. To prevent this, another technique that mediators can use is paraphrasing, whereby the mediator uses his own words to repeat what the party said.

Paraphrasing goes one step further from showing that one is listening – it demonstrates that an active effort is being made to understand and connect.

 

This brings us to the end of Part 1 of the series. I trust that it has given you some food for thought. In Part 2, I will further look at two other essential micro-skills of active listening – emotional labelling and summarising.

To make sure you don’t miss out on regular updates from the Peacemakers Blog, please like us on Facebook and follow us on Instagram.

 


Therese is a graduate student from the National University of Singapore’s Faculty of Law. During her time as an undergraduate, she studied both Mediation and Negotiation as elective modules and trained youth in peer mediation at the Peacemakers Conference.

Peacemakers offers the services of internationally accredited mediators with extensive experience in resolving local and international conflicts. If you are involved in a dispute, let us know your requirements via email at mediate@peacemakers.sg, and we will recommend you the mediators that best meet your needs.

 


 

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