A trump at the sleeve or what mediation is and how to use its tools properly

Natalia Lavrenova, associated partner at Legal Alliance Company, advocate, mediator.

Nataliia Abramovych, associate at Legal Alliance Company, mediator.

Saying “I am a mediator” we often hear “Who is it?”, “Does it mean you meditate?”, “Is it a tool to help play the guitar?” and only legal community will understand that it is about alternative dispute resolution outside the court. Should lawyers refine mediation skills given that the Ukrainian society is not familiarized with this type of dispute settlement, and those familiarized do not trust it? Everybody will answer this question at own discretion, however, we believe that yes, they should.

What is mediation and how is it used?

Before determining mediation skills which will be useful for any lawyer, we should understand what mediation is and what principles it is based on.

Mediation is an effective type of alternative dispute settlement with the help of a mediator who is not a representative of state authority, does not act as a judge and does not make final decision.

Mediation is so widely used in international practice that it can include even settlement of disputes which arose due to misdemeanors, for example, small thefts, causing harm to property, etc.

The world practice demonstrates that mediation is more fruitful that appealing to court. Court is considered the last instance sides of the dispute apply to in case mediation did not help to settle it.

In Ukraine, unfortunately, mediation is not so spread due to lack of legal regulation of mediation, as well as lack of knowledge, and consequently, lack of trust of citizens.

For complete understanding of mediation process it is necessary to get acquainted with three whales which hold the mediation universe.

I. Neutrality. Advantage of mediation is that mediator, intermediary, is a neutral person and absolutely independent and impartially helps participants of mediation find a solution of the case. Usually, mediator does not know participants of the process before it and therefore guarantees his impartiality. Thus, lawyers cannot be mediators in conflicts where their clients participate. In this case principle of independence will be violated. However, they are not deprived of right to be mediators in other disputes.

Effective mediator will help to understand reasons for the conflict and determine its strong and weak sides for the parties so that at the end of the process both parties would be satisfied with the result. Effective mediator will also help the parties to realize risks and expenses on dispute settlement in court which in no case will satisfy expectations of one of the parties.

The mentioned mediation conditions contribute to high level of trust to mediator. It lets the parties open and fully determine their positions both in common communication (presence of mediator and all parties) and face-to-face communication with mediator (so called caucus). There fundamental and the most important condition for mediation is principle “All said during mediation remains exclusively between mediation participants”. Analogously, everything said during face-to-face communication remains between mediator and the corresponding party.

Thus, all process of mediation is based on confidentiality, and mediator is absolutely neutral, neither inclines to nor supports position of either party, unlike court which is independent, however, making a decision, automatically accepts position of one party by virtue of litigation essence.

II. Independence. Parties to the dispute determine the following aspects on their own:

• necessity to participate in mediation to settle a dispute or apply to court:
• selection of a mediator. In courtiers which practice mediation for many years, there is a register/list of mediators, including based on their specialization (for example, mediators psychologists, lawyers, family dispute mediators, etc.) Consequently, participants of mediation may independently select a mediator based on the dispute subject:
• determination of venue, time and duration of mediation, conditions (for example, mediation can be conducted exclusively as face-to-face communication of mediator with each party or vice versa, without resorting to caucus). Regarding conditions of mediation, it should be noted that mediation does not mean that the parties will appeal to each other with the rules of law or evidence. It is only communication between the parties during which they express their discontent, expectations, disappointment, interests, needs, etc., and jointly find solution to the specified problem. If the parties start to prove their rightness through norms or provisions of law, professional mediator always reminds the parties that it can be used in court but not during mediation.

The most important demonstration of independence is that the parties settle the dispute on their own and find solution acceptable to all. This circumstance is combination of independence and effectiveness.

ІІІ. Effectiveness. Effectiveness is crucial advantage of mediation.

Результативність, в першу чергу, стосується тривалості медіації. У більшості випадків, вирішення конфлікту через медіацію відбувається в одну зустріч. Звичайно, не є виключенням коли для вирішення спору необхідно більше часу. Але сукупна тривалість медіації, у порівнянні з судовим процесом, є в рази меншою.

Effectiveness, in the first place, concerns duration of mediation. In most cases solution of a dispute through mediation takes place in one meeting. Of course, sometimes dispute settlement takes more time. However, total duration of mediation compared to litigation is much shorter.

Hence, mediation creates conditions of fast dispute settlement, where each party wins. It is another element of effectiveness.

Mediation is aimed at satisfying interests of all participants and finding appropriate solution where there will be no winners and losers. It allows participants of mediation save relations for the future rather than deepen in the dispute even more. Quite often after mediation participants continue collaboration and communication. It is especially important for family disputes.

It should be stressed that while searching a solution, mediator guides the participants in the right direction, but does not offer or adopt a decision for them. Therefore, he is a curator or guide who with the help of special skills (about which we will speak below) guides the parties to generate a correct common decision. Creativity and intelligence of both mediator, who has to analyze the conflict and apply right techniques, and the participants who find solution independently, are an integral part of this process.

The main task of mediator is to use all tools and techniques in order to make sure that participants of mediation understand each other. It is due to the fact that participants of the conflict always misunderstand and do not accept position of the other party. Mediator, a neutral intermediary, may help adjust connection and detect initial reasons for the conflict and why each party considers its position and its decision right. It does not oblige and does not guarantee that the parties will agree with each other, but helps understand why they do not agree with each other.

The result of dispute settlement through mediation is usually new agreement of the parties which is binding.

Mediation techniques which will help you

Techniques and tools used by mediators to settle conflict between parties are useful not only for mediators, but also for lawyers and any person at all. They will help find common language and hear and understand people correctly, which is a guarantee to avoid conflicts in future.

Such skills are extremely important for lawyers as they will help improve understanding both with clients and opponents. Further, some of them will come into use at negotiations and meeting and can immediately influence development of our business.

Successful dispute settlement, negotiations and any communication with people depends on what your interlocutor feels and if his problem or position is heard. For this international mediation practice developed a number of active listener techniques.

1. Paraphrase content. Use of this method has a positive result for all conversation participants: your interlocutor will make sure that all information said by him was heard; and you – that you understood the situation and interpreted the interlocutor’s words correctly. How to do it? It is enough to briefly repeat main ideas and facts which were voiced.
2. Reflect emotion. Use of this technique is necessary to demonstrate understanding of interlocutor’s feeling and reflection of what you see, not what you hear. Also, it will help re-estimate feelings hearing them from another person. To use reflect emotion method it is necessary to listen to interlocutor’s intonation and watch non-verbal signals which indicate psychological condition of a person. Slight demonstration of your attitude to feelings and position of interlocutor will be necessary too.
3. Open questioning. Every person usually uses this method subconsciously even without guessing that it is one of techniques of successful communication. Open questions will help obtain more information and avoid assumptions. Furthermore, such questions encourage having a conversation. We should remember the main technique of open questioning technique is try to avoid questions which start with the word “Why”, since the answer will often be subjective and will not demonstrate real facts which would help to settle the dispute.
4. Recognition of interlocutor’s position. Use of this technique is necessary to establish trust between the parties. In particular, recognition of the position will help persuade a person that you appreciate and understand his position and attitude to the situation. However, you should remember that recognition of a position does not mean acceptance of the position, but rather expression of one’s understanding. To use this technique we need to focus attention on importance of the problem to the interlocutor and demonstrate respect to his effort and actions.
5. Summarize. The most effective method to analyze progress and assess the situation is regular summing up of the obtained information or provisional results. Such actions will provide for unified understanding of the situation by all participants of the conversation which will help at generation of common ideas and create basis for further discussion.
6. Framing – expression of own position/attitude to the situation in non condemnable and open form which will create hope for positive and effective solution for all participants of the dispute. It should be noted that focusing attention on common points rather than on counter points is crucial. Framing can help us to convey a message so that the listener would be more open for communication. Usually it improves the possibility of reaching the speaker’s goal.
7. Reframe. The main goal of reframe is to help a person see own interests in new light, broaden importance of the problem to outline specific needs and interests, blur negative attitude of interlocutor and focus his attention at problem resolution. Main methods of reframe are determination and fixation of specific needs and interests of a person; change in vision of situation from negative to positive or neutral, from past to future, from problem to opportunity, from strict position to interest.

Regardless of the technique you will opt for, non verbal behavior is super significant for others to think of you positively. During the conversation you should watch your gestures and mimics (in particular, control own reaction to interlocutor’s words), be calm and balanced, keep eye contact and in open pose (for example, not to cross arms).

Choice of a communication technique depends on a situation, purpose and results you wish to achieve. Therefore, you can use one technique or combine several of them at the same time.

Each of the mentioned means in most cases contributes to the fact that interlocutor changes his vision of the situation from critical to one which can allow settling conflict faster and easier and avoiding serious conflict between participants.