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9 Tips for Mediators

  1. Opening Statement

The opening statement is YOUR moment, uninterrupted and undivided. It sets the temperature, proclaims your control over the process, establishes neutrality, develop rapport and gain confidence and trust of the parties. That’s a titanic task for you to be done, effectively! Be creative in your ways of making an opening statement. Analogies work brilliantly. For instance, trying to make the pie larger – “Imagine a jar of milk in front of you as the problem. Let’s add some sugar and make it sweet for the both of you to take back home.”

  1. Nonverbal Communications

Your conduct is being scrutinized by the judges because a mediator can also communicate through body language. For instance, leaning gently towards the party reflects attentive listening. By turning your chair and body towards a party, you reinforce the commitment to give the party your undivided attention. [As a practical tip for your preparations, record your mock sessions. You may find a ton of things to work on].

  1. It’s not about You

Don’t lose your calm and don’t sweat ‘imagining’ things going bad. Keep in mind that ‘mediation isn’t about making it all better nor do you have the burden of bringing the parties to a settlement’.

Parties who are capable of raising a dispute are equally capable of resolving it. Your job is to drive the process effectively. Be “the guy who does his job”!

  1. The Process

Mediation isn’t just one letter away from ‘meditation’ but also, ‘medication’! The process is a continuous exchange between: Mediating (the problem) ó Meditating (on the options) ó Medicating (the problem). Take charge of the process and be flexible in moving back and forth. Most importantly, establish clarity in the process.

  1. Accumulating Information

Educate yourself with the conflict. You must conduct your fact-finding effort with a purpose of: (a) understanding how parties see their situation (b) understanding what concerns, substantive and emotional, must be addressed in order for parties to feel confident that their dispute is moving towards resolution (c) And lastly, getting them to describe those details repeatedly and precisely so that each one knows what they have to work with.

  1. Active Listening

There are techniques you could use to demonstrate that you’re a patient listener and that you’re understanding. For instance,

  1. Summarising
  2. Reflecting: It is simply a restatement of feelings and emotions in terms of the party’s experience
  3. Re-framing: This is IMPORTANT to help parties move from positions to interest and thereafter, to problem solving and possible solutions. You task would be to nullify charged and offensive words used by the party
  4. Encourage: “what you said makes things clear”/ “that’s useful information” (e) Acknowledging: “I see your point”/ “I understand what you are saying”.
  1. Hit the ‘Rewind’

Get this: A Negotiated Contract -> Leads the parties to a Dispute -> Again, bringing the parties back to Negotiations! So parties try to negotiate on a dispute that happens to emerge out of a negotiated contract! What I’m basically trying to say is that the past may have a lot of answers. You may remind the parties about their negotiated contract and encourage them to time travel into the time when things were great making each one understand the other’s perspective in the passage of time.

  1. Generating Movement

When you find parties anchored to their positions, it may be because they haven’t made the effort of thinking out of the box. The answer is a simple truth- ‘the problems that exist today cannot be solved by the same thinking that created them’. Shake ‘em up!

  • Appropriate use of Caucuses

Both the timing of a caucus session and the choice of whom to meet with first are important decisions! This decision would depend upon the purpose of calling it which is captured by the acronym E. S. C. A. P. E – [E] Explore settlement options, [S] Signal warning signs, [C] Confirm movement, [A] Attack a recalcitrant party, for e.g., by showing the big picture: the costs of not settling, [P] Pause and [E] Evaluate.

  1. The Mediation Process

This is ‘the’ mediator’s modus operandi – B. A. D. G. E. R. – [B] Begin the discussion, [A] Accumulate information, [D] Develop the agenda and discussion strategies, [G] Generate movement, [E] Escape to separate sessions, and [R] Resolve the dispute. This is your roadmap!

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The "European Mediation Academy" (emeac) was approved as an IMI Qualifying Assessment Program by the International Mediators Institute (IMI)  in January 2019. 
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Victor Schachter, a well-known business mediator and distinguished ex-lawyer from the United States, a great partner Law Firm Fenwick & West LLP, Silicon Valley, California and President of the "Foundation for Sustainable Rule of Law Initiatives"  was spüeaking in Zagreb about the chance for attornes to see mediation as an opportunity. He made it interesting, attractive, straightforward and clear for Croatian lawyers how mediation can simultaneously increase the profitability and satisfaction of attorneys in everyday work.
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