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I support this process by allowing and supporting the parties in mediation to determine the direction of their own process. In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.

Let talk about conflict…..often conflicts can arise over simple misunderstandings that may be related to culture, gender, religion, values, race or personality clashes Mediation is a relatively non intrusive process of resolving conflict between two or more parties through an impartial/neutral third party.

Mediation is a voluntary, alternative process for conflict resolution that promotes understanding and mutual respect and provides a safe place for participants to speak to each other.

Mediation is an informal, but structured discussion to help conflicting parties express their concerns and feelings, and to reach a resolution without surrendering control to someone else.

Mediation is an opportunity to check and clarify facts, exchange ideas, share feelings, which encourages participants to accept responsibility and challenges them to generate possible solutions that can result in a mutually satisfactory agreement wherein all parties benefit.

Mediation is a cost effective and minimally disruptive win/win process intended to preserve the stability of the workplace.

Mediation Process:

• Step 1: Introducing and explaining the process of mediation to all participants
• Step 2: Having each participant talk to the Mediator in the presence of the other party, without interruption, to communicate their perspective on the conflict
• Step 3: Providing participants an opportunity to talk to each other
• Step 4: Helping participants work together to explore a variety of options for resolution, often not previously considered
• Step 5: Allowing all parties to achieve the best possible solutions which are honour bound.

Indicators of mediation:

• Restoring the relationship is important to all parties;
• The conflict may be a misunderstanding; no great disparity in power exists;
• All parties need the opportunity to let off steam;
• A resolution is sought quickly;
• Parties do not want a punitive settlement;
• Confidentiality is important;
• The parties want to resolve the conflict themselves; and
• Neither side wants a formal process.

Why should you choose mediation?

• What possible solutions or compromises do you think are available?
• What do you want from the other person?
• What are you willing to give up in return?
• Are you ready to consider a settlement?
• Are there no legal implications?
• Are you willing to compromise?
• Is there a communication breakdown?
• Is this a conflict over different values?

Benefits:

• Convenient;
• Comfortable;
• Understandable;
• One of Many Options;
• Flexible;
• Educational;
• Healthy; and
• Effective.

The Mediator:

• May be a volunteer;
• Is a process facilitator;
• Remains neutral and unobtrusive;
• Helps open communication channels;
• Helps clarify the conflict;
• Is an agent of reality;
• Is trained to assist all parties to resolve their conflict;
• Is a confidant;
• Defines and controls the interacting process;
• Is an organizer;
• Listens to all sides and facilitates opening paths to conflict resolution;
• Is a guide through the process; and
• Allows all parties to effect a resolution themselves.

Mediation is not:

• Confrontational;
• Adversarial;
• Position bargaining;
• Coercive;
• Negotiation;
• Counseling;
• Arbitration;
• A grievance process; or
• A legal hearing that determines
• Guilt or innocence.

How is a Mediator chosen?

Consideration is given to:

• Ensuring that the Mediator has no direct involvement and is not closely identified with any parties;
• Verifying that the all participants have confidence in the Mediator;
• Verifying that the Mediator has the skills and characteristics necessary to manage the process;
• Ensuring that the Mediator can commit sufficient time to work with all participants; and
• Determining if co-Mediators should be used.

In earlier newsletters we wrote about two workplace realities that can only be dealt with if they are addressed head on. In December 1996 we tackled the topic of harassment and its prevention suggesting that organizations should have a harassment prevention policy, should train all employees on that policy and should act swiftly when there is an allegation of harassment. In the previous edition we dealt with managing new employment relationships after downsizing and reorganization. We at the Aviary Group have the expertise and experience to assist you and your organization with both of these situations should they occur in your workplace.

The potential for interpersonal conflicts is at an all time high. We all know that incidents of harassment do occur — in the board room, on the shop floor, in organizations and the government. As well, the feelings and resulting behaviours (increased absenteeism, lower productivity and complaints of harassment, etc.) of the employees who remain after downsizing, are well documented. Add to the equation the new group of contract workers who may be getting paid higher wages than the full time staff and do not have the same commitment to the organization as the others do.

As a manager you probably do not have the time to deal with some of these situations while trying to manage the day-to-day of your workplace. Mediation may be the most practical and expedient process for resolving conflicts using the skills of an impartial party. As such, mediation is more like counseling than the more formal process of investigations or grievances, because the parties are encouraged to understand the others point of view and achieve their own solution.

Mediation does not determine guilt or innocence. The incident involved is one that both parties agree has taken place.

Acknowledging that a particular incident may have occurred does not compromise either party, but enables both parties to deal with the real problems involved. Mediation promotes mutual understanding and is voluntary. Either party may opt out at any time and other resolution options are still available if mediation is not the answer.

Mediation helps maintain the integrity of the relationship of the parties involved by promoting understanding and compromise. Getting back to working together is often complicated by more formal dispute settlement mechanisms that focus on fact finding.

Mediation helps parties get to the root of a problem. Numerous conflicts arise out of miscommunication or misunderstanding. Only by clarifying respective positions regarding conflict issues and achieving a better understanding can the conflict be resolved. Even if no final resolution is achieved, the mediation process enables both parties to achieve a greater understanding and respect for the other person’s point of view.

Mediation is not undertaken where illegal or unethical behaviour is involved, or where a significant power imbalance exists.

There is a significant cost saving which occurs because of the minimal requirements involved in the mediation process and a speedier resolution of conflicts compared to other processes. Mediation tends to enjoy a very high success rate; settlements are reached in more than 85 percent of cases involving professional mediators.

As we approach the millennium, Canadians are increasingly becoming disillusioned with the fundamental failure of our traditional mediation institutions to meet the basic needs that spawned them in the first place. We find ourselves searching for a newer, more innovative and better way to resolve our interpersonal disputes, conflicts and misunderstandings. Fortunately, indications are that a major paradigm shift is underway. This new perspective is gradually shifting the focus of dispute resolution from winning at all costs towards creative means for achieving win/win solutions to ever increasingly challenging and complex problems. Alternative dispute resolution (ADR) mediation, workplace restoration and conflict management are emerging as credible alternatives to litigation.

Benefits of Mediation

By the time a lawsuit is filed, the parties have often reached the point where they no longer want to deal “upclose and personal.” Unfortunately, dealing with the relationship is needed more than anything else. Alternative means of resolving these types of disputes can save time and money, while concurrently and perhaps most importantly preserve valuable personal, family, community and business relationships.

Mediation has effectively demonstrated over time that it can be a practical and expeditious process for resolving disputes, however there is much confusion about the ADR process. True mediation does not determine right or wrong. When correctly applied, it is a voluntary choice that promotes mutual understanding and other dispute resolution options, such as litigation, are not precluded. Mediation in its true sense then is more reflective of problem solving and counseling than the more formal legalistic grievance resolution mechanisms often associated with how disputes are resolved.

Perhaps most importantly, mediation helps maintain the integrity of the relationship and the parties involved by promoting a deeper understanding of the underlying issues and facilitating creative solutions.

It is difficult to advance a credible argument that the ‘status quo’ continues to be the most efficient and effective means to resolve our disagreements, however old paradigm habits, attitudes and beliefs resist change.

Styles of Mediation

Mediation is often perceived as a “soft stage” before the “real hard bargaining” begins. Much of what passes for mediation continues to be compromised by the ‘old position centered bargaining paradigm’ in which there is a perceived ‘winner and loser.’ Increasingly, many rights and privileges have become formal entitlements through legislation and the parties are choosing to have a neutral third party provide an educated estimate of the probable settlement that could be expected if mediation is not successful. However, the emerging entitlement approach deals with a limited range of problems and issues and litigation outcomes are not always predictable.

Centering the Mediation on Principles

The Principle Centered Mediation approach advances that centering the resolution process on principles will significantly contribute towards a satisfactory resolution of the rights, interests, obligations and entitlements of the involved parties. This we believe is the fundamental strength of the dispute resolution paradigm shift from negotiating from an adversarial position to a facilitated problem solving principle centered approach.

The Four Principles

Four principles resonate most strongly with the new alternative dispute resolution paradigm.

The 4 “P’s” of Principle Centered Mediation

1. Respect for the participants involved in the dispute.
2. Respect for the underlying cultural values and beliefs of the involved parties.
3. Respect for the complexity of the problem under dispute.
4. Respect for the facilitation and mediation process.

In our increasingly diverse society, acknowledging and respecting differences is essential for engendering a balanced perspective of the issues, which in turn facilitates a clearer identification of the problems to be resolved. Fragmented rather than holistic decisions result unless all of the problems related to the dispute are clearly identified. Principle centered mediation advances that the mediation is successful as a direct result of the dispute being reframed into a co-operative search for a “framework solution” that has the propensity to meet the current and future needs of all parties involved in or directly effected by the dispute.

A growing number of ADR practitioners and theorists are attempting to define the dispute resolution and facilitation process. As a contribution to this growing field the authors offer a process for facilitating a successful mediation that we have developed and apply in our Community of Practice.

Facilitating the Mediation:

The 2 “Fs”, the “A” & the “M” of Principle Centered Mediation

• Focus the Mediation on Principles, Interests and Entitlements
• Facilitate the resolution of People, Content and Process related barriers to reaching a solution.
• Assist in developing Objective Measures to evaluate realistic options and desired outcomes.
• Mediate a Problem Solution Framework.

The 3 “W’s” and “H”of Principle Centered Mediation

• Ask What and What Else to identify interests, rights, privileges and entitlements.
• Ask Who and Who Else to identify people’s issues from content and process issues.
• Ask Why and Why Else to identify measures for success.
• Ask How and How Else to identify creative options for solutions.

The Chefs

There are, at present, two main parties that have the largest stake in the future of mediation. The first is lawyers who have transferred their abilities from the legal profession to mediation. The second is individuals who have received mediation training outside the legal profession. These parties will be referred to as legal and non-legal mediators respectively. The situation that has developed is one where legal and non-legal mediators are engaged in conflict over who is most capable of practicing effective mediation. It seems ironic that those who profess their capabilities of resolving disputes in the personal and public world cannot resolve conflict among themselves. Let’s explore the reason for this view.

The Ingredients

Firstly, one of the cornerstones of mediation is that each disputant is given the ability to solve their conflict with the assistance of a mediator. Lawyers pursue the best interests of their client, not necessarily involving the clients. For this reason, legal mediators may find it difficult to ensure the best interests of all disputants in a conflict.

Secondly, while lawyers focus on the interests of their clients through a rights-based prism, mediation focuses through an interest-based prism. Lawyers are dedicated to upholding the laws that govern the conduct of individuals in their respective countries.

Mediation focuses on the interests of each disputant; what each disputant wants out of a settlement. Again, lawyers may face a greater challenge in ensuring the well being of each disputant.

Third, mediation is about empowering people to become their own problem-solvers. Lawyers in the traditional sense are not attempting to empower their clients, only to represent them in court. Representation does not assist disputants to resolve conflict among themselves.

Finally, mediation by nature is a non-binding process; it has no precedence on formal litigation. A party involved in a dispute may perceive the presence of a lawyer to signify a binding or official nature of mediation, thus disempowering the disputants from resolving the conflict for themselves.

Baked Goods

Having briefly illustrated the argument against legal mediators from pursuing mediation, there are ever-growing numbers of individuals graduating from law schools who are dedicated to mediation. The skill and expertise of these individuals should not be discounted.

Legal and non-legal mediators can coexist in a positive way to ensure the continual growth and prosperity of the mediation field. What are needed are open-minded individuals of both sides to listen to each other and create a resolution that is unique to the current situation. As a mediator, it is my hope that a resolution can be found.

Submitted by Cory Harris
Associate

History has always been a great teacher

The following story illustrates the present debate between legal and non-legal mediators.

A long time ago in an ancient land, two women came before a King to tell him of their problem. These two women lived together in the same house and both had young infants. One of the women, argued that while she was asleep with her infant, the other woman’s child had died and that she had switched the children. Upon waking the first woman thought her baby had died but after close examination of the dead infant realized that this was not her baby.

The second mother denied this and argued that the first mother’s child had been the one that had died. And so they fought over who was the rightful owner of the living child of the King.

Unable to decide who was telling the truth, the King ordered that the baby should be split in two. One of the women pleaded with the King not to split the child but give the child to the other mother, while the other mother insisted on splitting the child.

The response from the King was to not split the child and give the child to the woman who had pleaded for its life because she must be the child’s mother.

Mediation can be seen as the child while the mothers are the legal and non-legal mediators arguing other the child. Thus far, neither party has pleaded for the life of the child and the decision must be made soon whether to split the child or not. Much time has passed since the time of the King’s decision. Maybe there is a way that both mothers could share the child named “Mediation.”

1. First you need to clarify that there is in fact a problem that affects both parties. Sometimes, for example, you may discover that something that you both dislike or disagree with are not your concern. At other times you may discover that what is worrying you is your own responsibility and not of any concern to the other person. In either of these cases, joint problem solving is not appropriate.
2. You need to make sure that you are not confusing the people with the problem. Your responsibility is to deal with work-related problems, not to criticize or try to improve the personalities of the people you are dealing with. Look through the side issues of personalities, emotions, blame or attacks to discover the real issues that are causing the problem.
3. Define the exact nature of the problem. Recognize the difference between the arguments that each side is making and the actual problem that needs to be resolved. This means asking questions, clarifying. It may also mean allowing the other person to let off steam first!
4. Look for the other side’s human needs as well as the actual facts of the matter. This means discovering whether their real concern is:
   • Feeling insecure or threatened
   • Worrying about financial security
   • Not considered part of the organization network
   • Feeling that you have not sufficiently recognized their achievements or that you do not value what they are doing
5. Look for common ground. Use the “Why/Why not” technique: “Why” — do they do or want things their way? “Why not” — do or want things my way? This will usually help to distinguish differences from similarities and help to focus on the exact problem.

STEP 2: CLARIFY CONSEQUENCES OF PROBLEM

The problem is not a problem in itself. The problem is only a problem when it has negative consequences. So the next step is to explain or ascertain what those consequences are.

Explaining the problem means:

• Being specific Not just: “and that’s not good enough” But: “so that meant that our response time is down 20%”
• Showing how these consequences affect both sides
• Speaking positively about the problem as one which:
  Can be solved
  Is worth solving
  Will lead to better future business.

If the other person is explaining the problem this will mean:

• ask questions
• probe and clarify until you have a clear picture of the consequences of the problem.

STEP 3: ESTABLISH YOUR CRITERIA FOR A SATISFACTORY SOLUTION

Once you have clarified the problem and its consequences you will be able to develop a clear idea of what you are looking for to provide a satisfactory solution. Spell these out very clearly: “So what we need is a new way of doing this so that it will…”

You will then have a clearer focus as you explore possible solutions.

STEP 4: EXPLORE SOLUTIONS

We all accept changes and suggestions more readily if we have been consulted and had some contribution to the decision making.

Therefore it is important to involve many people in the process, so that it really is a joint decision making process.

So:

• Ask for their suggestions.
• Show that you are looking for a range of suggestions so that you can find the best answer.
• Show that your suggestions are not firm and inflexible.
• Accept all suggestions as worth considering. The more different ideas emerge, the more you will be able to mix and match to find the best solution.
• Look for ways of giving each side as much a possible of what they want, rather than fearing that by giving something you will be losing something in return.

STEP 5: DEVELOP THE BEST SOLUTION

Many ideas may have been generated. Sometimes the solutions will gradually emerge and it will be obvious what is the answer. But often no single solution will solve all aspects of the problem.

This is where you need to use your creativity, mixing and matching the various suggestions until you arrive at he best solution.

1. Choose the best ideas that have emerged.
2. Discuss what you like and dislike about each idea.
3. Evaluate each idea against your criteria. In particular, note the good points of the idea, the way in which it will help to solve the problem.
4. Look at each idea from a different point of view. How will it affect:
   • Customers
   • Your organization
   • Staff
   • Other departments
   • Other suppliers….
5. Decide on the best solution. Be prepared to adapt, to be flexible, provided that it will meet your basic criteria for solving the problem.
6. Summarize what you have both agreed on and check out that you both have the same understanding. In particular, make sure that your agreement is described in precise, specific and concrete terms, so that there can be no misunderstandings later.

If it is complex put it in writing as soon as possible and get agreement that it correctly reflects what you each agreed to.

STEP 6: DECIDE ON ACTION

A solution is not a solution until it is acted upon.

If appropriate, help them to put it into action. Discuss the steps to be taken and explain what you can do to help.

Encourage them to feel positive about what now has to be done. You may possibly wish to arrange a follow-up session to evaluate progress and give any further help as necessary.

What your score means:
If you scored under 12, you’re modeling excellence.
If you scored between 12 and 25, you’re getting there but not fast enough.
If you scored over 25, consider the price of continuing in your old ways.
Score: ________

Most of us know when things are not working in our organizations. Symptoms such as: declining staff morale; staff apathy; staff turnover; severe financial pressures; radical shifts or declines in the demand for programs and services; criticism of the organization from the community, may be signals that change is due.

They say that the only ones who welcome change are babies when their diapers are wet! Change in our lives is inevitable. Some of us undergo radical changes every few years or so–changing jobs, moving to new locations, changing partners, changing hairstyles, changing vehicles, changing our eating patterns when we diet, changing our lives when we exercise, so why is it we resist change when it occurs in our workplace?

To make transitions from your current condition, whatever the change may be to a new system it is necessary to identify those factors, which might either facilitate or inhibit any change effort. These obstacles and supports may come from within the organization or from an external environment. In either case the one area that is overlooked in the change process are the people. Change and the rate of change is occurring so rapidly in today’s economy that we seldom have the time to stop to recognize the impacts it has on one of our most valuable resources – our employees. Every day on the news or in the newspaper we hear of another corporate merger or restructure, seldom do we hear about the people who this has effected. If we are to continue to expect the most from our employees we need to take time to understand what change does to them and assist them in minimizing their distress and disruptions which the change may have caused.

If you are interested in discussing ways to assist your employees gain the skills to cope and be effective during times of change, please call Monika B. Jensen at (905)-683-9953 for a consultation or to arrange a workshop.

Managers do the same thing all over the world…
The way they do it is different
Peter Drucker

TO CHANGE OR NOT TO CHANGE?

To grow is to change… I am always taken aback by the sight of a small perfect feather lying on the ground. Yellow, red, blue, soft white and brilliant green. Nearly every day my parrots surprise me with a delightful gift. The moulted feathers cover the floor of my home as if a confetti parade has passed through. Coloured feathers of various shapes and hues litter the ground and dance with the slightest breeze.

What must it be like to have beauty in such excess and at such readiness that one can spread that beauty at the feet of admirers?

Moulting is a time of rejuvenation & growth for healthy parrots. Would that my own growth was as steady and yielded such consistent results. Sometimes a moulted feather reveals an imperfection, a jagged edge, or a bent shaft. I envy the birds that shed their baggage easily. A fresh new shaft filled with the plasma of life, colour, insulation and flight replaces each old feather. If old attitudes, bad habits and outdated discriminations could only be shed so regularly in the human race. Imagine each old prejudice or remembered injustice being replace by new, fresh, promising energy.

Excess beauty that floats to the ground, a multitude of textures that tickle, brighten and protect. My parrots prove every day that growth involves discarding the old, replacing it with the new.

Employees often show concern about the quality and quantity of communication at work. Some claim that management gives only lip service to open communication, doing little to really communicate with them.

Others contend their organizations believe that posting notices on bulletin boards and sending out memos provide adequate communication. Still others say they receive vague instructions that are difficult to follow.

Ineffective communication often results in poor cooperation and coordination, lower productivity, undercurrents of tension, gossip and rumours, as well as increased turnover and absenteeism. Experience shows there are many ways managers can improve internal communication. Here are some things they should do:

• Understand that communication is a two-way street. It involves giving information and getting feedback from employees. It is not finished when information is given.
• Put more emphasis on face-to-face communication with employees. Do not rely mainly on bulletin boards, memos and other written communication.
• Ask themselves, each time they give an instruction, if the message is clear. Most vagueness is caused by failing to be specific. Example: Do not just tell an employee to “show more interest” in his or her work. If an employee spends too much time chatting with others, be specific about it.
• View information as “service to” employees and not “power over” them.
• Listen to employees; show respect for them when they speak. They will feel part of the team and will tend to be more dedicated and productive. One way: Ask questions to show interest and clarify points.
• Do not just talk open door policy. Practice it by walking around and talking to employees. Allow people to disagree and to come up with new ideas.
• Conduct one-on-one meetings. Ask each employee to tell the manager how the manager can help the employee to do a better job. Then share those things employees can do to help the manager do a better job.
• Prepare publications frequently. Emphasize current issues that employees care about; do not substitute quarterly “prettier” publications for substantive, up-to-date ones.
• Concentrate on building credibility with employees. Managers who lack credibility and fail to create a climate of trust and openness are not believed-no matter how hard they try to communicate.

REACTING TO DIFFICULT TYPES

When dealing with people, be ready to react to the actions of different personalities. Some examples:

• Dealing with the aggressor, who is intimidating, hostile and loves to threaten.What to do: Listen to everything the person has to say. Avoid arguments and be formal, calling the person by name. Be concise and clear with your reactions.

   

• Dealing with the underminer, who takes pride in criticism and is sarcastic and devious.What to do: Focus on the issues and don’t acknowledge sarcasm. Do not overreact.

   

• Dealing with the unresponsive person, who is difficult to talk to and never reveals his or her ideas.What to do: Ask open-ended questions and learn to be silent-waiting for the person to say something. Be patient and friendly.

   

• Dealing with the egotist, who knows it all and feels and acts superior.What to do: Make sure you know the facts. Agree when possible and ask questions and listen. Disagree only when you know you’re right.

Source:
Business Marketing Reference Manual,
by Tom Lapham,
160 Farmington Ave.,
Bristol,
CT 06010.

Mediation is just one of the many new skills that managers of a multicultural teams need to have at their disposal.

Canada boasts one of the most culturally diverse populations in the world and many who are permitted to continue the rituals and customs of their particular culture. However, this can also create, conflict between these cultures. Considering the cultural and ethnic diversity of Canada, how does this affect the procedure and outcome of mediation?

The reason why disputants are seeking the assistance of a mediator may be more involved than just a simple disagreement; it may be the ethnicity and cultural background of those involved that is the root cause of the dispute. An effective mediator would recognize these ethnic differences between the disputants and probe each disputant to ascertain whether these differences do play a role in the dispute.

Mediation is defined as a model for solving disputes between two or more parties who agree to use the mediation process with a neutral third party facilitator. The mediator’s role is to provide the climate and the setting for disputing parties to express their concerns and feelings and to work together in resolving the conflict. This process challenges employees to accept responsibilities and to explore possible solutions that can result in a mutually satisfactory agreement. As managers become familiar with this process they will find many appropriate ways to ease conflict situations in the work place.

As one begins the mediation process with the parties an important question needs to be addressed – What if the parties involved in a dispute come from different cultural backgrounds? It is essential to apply sound intercultural communication principles and skills at each stage of the mediation process.

Remember that both mediator and the disputing parties come to the mediation with their own cultural assumptions. If the mediator assumes that everyone shares the same values, beliefs and communication styles, then the mediator’s assumptions may get in the way of resolving the dispute.

Each ethnic group has unique way of communicating both verbally and non-verbally with members of their group. And while the members of one group may understand the significance of a gesture or phrase, there may be other individuals who will interpret these gestures as something completely different. Consider if you will various hand gestures that are used around the world to illustrate one’s anger with another individual. In a multi-cultural country such as ours, the potential for misunderstanding between individuals of differing ethnic backgrounds is considerable.

Diversity can affect not only the disputants but also the mediator as well. The mediator, while attempting to remain objective, cannot suspend their own cultural norms during the mediation process. The mediator must also be aware of their own cultural norms and ensure that they do not interfere in the mediation process.

Mediators in Canada have an advantageous position in that we can learn much about various cultures from around the world, making us more effective in resolving disputes between individuals from differing cultures.

In co-operation with Cory Harris Associate

Barriers to Cross Cultural Communication

Language Factors:

• Accent and dialect
• Pitch, stress, volume and tone factors
• Politeness/abruptness
• Pausing patens

Cultural elements

• Use of gestures and facial expressions
• Formality/informality
• Frankness
• Time consciousness
• Spatial consciousness/physical intimacy
• Stereotyping

Job related

• Degree of competitiveness
• Priorities

Body language

• Distance
• Avoidance
• Eye contact
• Touch or lack of touch