SCOM 332 EXAM #1

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types of mediation: - evaluative/directive -facilitative/conciliatory -transformative -narrative
evaluative/directive mediation model: -conflict must be resolved -parties cannot resolve it on their own -underlying issues are not important -generally used by courts/law -"SETTLEMENT"
facilitative/conciliatory mediation model: -conflict is something to be overcome -active listening -focus on feelings -may/may not address underlying issues -mediator attempts to allow parties to reach a settlement ON THEIR OWN
transformative mediation model: -conflict is something to be learned from -parties must be introspective -focus on empowerment & recognition --does NOT suggest solutions/direct the parties -both people need to be WILLING TO CHANGE
neutrality: -NOT as important for a mediator to have as: --the ability to reach out --the ability to use subjectivity --the ability to deepen empathy & honesty between adversaries
mediators: -NEUTRALS -seek to promote the different interests of both in a victory that is without defeat -are open to change
mediators must understand that...: -there can be no fixed answers to emotional/artistic questions -no truth can ever prevail over its opposite
purpose of mediation: -ameliorate danger -pacify hurt feelings -create safe spaces within which dialogue can replace debate
conflict: -situation GOALS/VALUES/NEEDS are incompatible -ongoing DISAGREEMENT between 2 parties' incompatible views that requires RESOLUTION
underlying ethical values of mediators: -disputant autonomy -procedural fairness -substantive fairness
disputant autonomy: -right to make decisions based on personal beliefs/values --self rule --requires recognizing internal/external threats
examples of internal threat: -inhere in the frailty of a disputant's mental/physical condition --narcissism/insecurity/grief/other personal insecurities
examples of external threat: -arise from the dire circumstances in which disputants find themselves --accident victim takes a small amount of $$ to pay for doctor's bills or else they'll lose their name
procedural fairness: -fairness of the process used to reach a mediated result --examines the fairness of METHODS --parties want to be treated w/ respect
substantive fairness: -"good enough" outcome - acceptability of mediated result --in each case yr decision is based on yr belief system --law vs. justice
Utilitarians: -right action is that which brings about the greatest good, taking into account everyone affected
Kantian deontologists: -morality is a matter of responding to "perfect duties" that apply in every instance & admit of no exception
W.D. Ross: -PRIMA FACIE DUTIES exist - duties that were presumptively binding but sometimes must yield to other considerations
The Moral Standards of Conduct for Mediators GOALS: 1) to guide the conduct of mediators 2) to inform the mediating parties 3) to promote public confidence in mediation as a process for resolving disputes
problems regarding the Moral Standards of Conduct for Mediators: -they don't answer the question "what is the ethical course of action in this case?" -most ethical dilemmas are not resolved by finding the one right answer -it rarely makes sense to hold one value to be the one dominant principle that subordinates all others in every possible case
narrative mediation: -language shapes reality -there is no such thing as an objectively fixed reality -individual identity is shaped by culture & stories --individuals are trapped in conflict stories that emanate from/embody cultural myths & unexamined verities
Moral Standards of Conduct for Mediators: 1) Self Determination 2) Impartiality - know how you work 3) Competence - must have training 4) Confidentiality 5) Quality of the Process 6) Advertising & Solicitation - be truthful about experience/services/fees/no promise of outcomes 7) Fees & Charges - IN WRITING payment cannot affect impartiality 8) Advancement of Mediation Practice - reduced rate/pro-bono outreach, training/mentoring, new mediators
types of conflicts: -value conflicts -relationship conflicts -data conflicts -interest conflicts -structural conflicts
value conflicts: -people in conflict have different life ideologies
relationship conflicts: -people who have an interconnection --strong emotions/bad behavior/miscommunication
data conflicts: -factual -miscommunication about evidence
interest conflicts: -perceived/actual competition of an interest --substantive interest - time/$$ --procedural interest - each person getting enough time to talk --psychological interest - if people feel like they're being treated w/ respect
structural conflicts: -conflict where people are in different places
types of mediators: -social network mediators -benevolent mediators -administrative/managerial mediators -vested interest mediators -independent mediators
social network mediators: -both parties view person as fair, but they are not necessarily impartial
benevolent mediators: -generally impartial even though they might have a relationship w/ parties --lawyer mediating btwn 2 people in a divorce
administrative/managerial mediators: -relationship w/ both parties, establish parameters in which they are seeking a solution --boss mediating btwn 2 employees
vested interest mediators: -mediator has anticipated future interaction between parties - have a place in the outcome --U.N. mediating a conflict btwn countries
independent mediators: -most impartial - let parties come up w/ their own agreement --mediator doesn't have power to enforce agreement on their own ---divorce mediation/peer mediation group/counselor
levels of mediation: -effects -mediator goals -specific practices/processes
effects: -changes the mediation process process fosters in the participant
mediator goals: -objectives the mediator hopes to accomplish at each stage of the mediation process
specific practices/processes: -steps the mediator can take to aid in the achievement of both effects and mediator goals during the mediation
levels of empowerment: 1) effects -stronger -decisive -self-determined 2) mediator goals -support decision making & deliberation 3) specific practices/processes -identify an opportunity -invite elaboration/reflection -enact a supportive response
levels of recognition: 1) effects -attentiveness toward each other -increased reception & responsiveness 2) mediator goals -encourage perspective thinking -assist parties in perspective thinking 3) specific practices/processes -identify an opportunity -invite elaboration/reflection -enact a supportive response
steps of specific practices/processes: 1) identify opportunities - listen & respond to RED FLAGS/ other comments that indicate differing perceptions/unspoken feelings 2) avoid the direct impulse - avoid the SETTLEMENT ORIENTATION 3) enact an "empowerment & recognition" response
conflict suppression: -pretending a conflict doesn't exist -allowing dominant parties to control the situation
conflict settlement: -peace at any cost -ignores the underlying causes of conflict & focuses on ending the surface conflict
conflict resolution: -conflict can lead to POSITIVE outcomes
resolution: -the translation into practice of truth & reconciliation --peace is NOT the only imp. value - FAIRNESS, HONESTY, EQUITY & GETTING TO THE ROOT OF THE PROBLEM are equally imp.
conciliation: -calming/placating an emotional/irrational individual --focused on concession --used w/ bullying
compromise: -mutual give & take (quid pro quo) -creates a TEMPORARY peace & superficially postpones the issue -NONTRANSFORMATIVE
collaboration: -a social bond is forged that did not exist before & could result in an improved relationship -results in a respectful acknowledgment of partnership -TRANSFORMATIVE
posing: -a dishonest representation of the self --causes a person to assume (and alter) an identity
posing identities: -victim vs. aggressor -expert vs. idiot -golden child vs. troublemaker
primary purpose of poses: 1) to gain attention, sympathy & support -external 2) to disguise the opposite of the pose, which is what the actor really feels -internal 3) to lead a caring listener to search for their authentic self
types of conflict: -parents -siblings/peers -inner
parent conflict: -informs how we respond to superiors/authority
siblings/peers conflict: -informs how we respond to competing interests/differences
inner conflict: -informs how we manage our inner lives
ethical obligations for mediators: 1) abstain from "knowingly misrepresenting any material fact/circumstance in the course of a mediation" 2) promote honesty & candor between & among all participants
mediators need to take action when there has been...: -fraudulent misstatements of material fact -nondisclosure of material fact
hindering: -protects people in conflict from the idea that they might be able to resolve their disputes themselves --"official giving"
hindering is accomplished as an...: -imposition - all fundamental decisions are made by the "helper" from outside -manipulation - all decisions made by the "helper" are assumed to be those of the helped, as though their interests were identical
partnership: -a collaboration between equal, independent people, one of whom is engaged in giving while the other is receiving
goal of partnership: -to build the capacity of those receiving assistance to help themselves
professionalism: -neutral -suggesting distance from the parties & suppression of subjectivity -when mediators do this they are not being authentic/honest
stages of professionalism: 1) discovery of useful techniques, creative development, systematization of skills 2) professional self consciousness, search for legitimacy, the beginning of territoriality & propriety behaviors 3) codification of rules/ethics, escalation of fees, formalization by attorneys/legislators/judges, formal certification 4) dismissal of the of the poor, grandfathering of the unqualified, marginalization of the orthodox, promotion of the mediocre
Victim Offender Mediation: -needs to be VOLUNTARY -dialogue driven -safe & controlled
restorative justice: -burden falls on offender -crime is a violation of people & relationships & victims are human beings, not witnesses or evidence
Victim Offender Mediator problems: -lack of preparation on the part of the mediator -poor quality of the mediator -attitude of the offender -lack of follow-up on the part of the mediator
Victim Offender Mediator responsibilities: -facilitate the dialogue btwn the victim & the offender -make the parties feel comfortable/safe -assist the parties in negotiating a resolution plan
apology: -admitting fault & not offering a defense/justification --sincerity --empathy --express regret w/ no excuse
mediation & litigation similarities: -both present a settlement agreement to court -both have a discovery process -both use experts -both require full disclosure
mediation & litigation differences: -litigation - attorneys negotiate the settlement on behalf of their client --competitive (win-lose) -mediation - parties negotiate their settlement --cooperative (win-win)
when should couples mediate: -when they have children -when they want to maintain some kind of relationship w/ each other
when should couples go to litigation: -when there is domestic violence -when there is evidence that the children are being abused/neglected
divorce mediation: -1 mediator (lawyer/community mediator) -2 mediators (lawyers/community mediators/counselors) -triad of professionals (lawyer/counselor/accountant) -parties may mediate on their own or may bring their own attorney

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