Let's Talk it Out

BILL DE BLASIO, Mayor

CARMELYN P. MALALIS, Commissioner/Chair

MEDIATION STUDENT GUIDE

2016 REVISED EDITION

Let’s Talk it Out

ACKNOWLEDGEMENTS

• Korean-American League for Civic Action, Inc.

• Grace Lyu-Volkhausen, Former NYC Human Rights Commissioner

• Dr. Maria Volpe, Professor and Director of the CUNY Dispute Resolution Consortium,

John Jay College of Criminal Justice.

• Professor Carol Liebman and Professor Alex Carter, Columbia Law School Mediation Clinic

• Creative Response to Conﬂict, Inc. The Newark Goals 2000 Conﬂict Resolution-Peer Mediation

Project, Professional Development Guide. Nyack, NY: Creative Response to Conﬂict, Inc., 2000.

• Cohn, Richard. Students Resolving Conﬂict. Peer Mediation in Schools. Parsippany, NJ:

Good Year Books, 1995.

• Deadrick, Ivan and James Kornbluh. Basic Mediation Certiﬁcation Training Manual, Center for

Court Innovation, Harlem Justice Center, 2002

• Johnson, Judith M. and Priscilla Prutzman, CCRC’s Friendly Classroom Mediation Manual: School

Mediation From Planning to Practice. Nyack, NY: Creative Response to Conﬂict, Inc., 1998.

• Perlstein, Ruth and Gloria Thrall. Ready-to-Use Conﬂict Resolution Activities for Secondary

Students. Englewood Cliffs, NJ: The Center for Applied Research in Education, 1996.

• Red Hook Community Justice Center, Red Hook Youth Court

• Regan, Bridget Esq., Mediation: A Basic Training Manual. 2001.

• Sadalla, Gail, Meg Holmberg and Jim Halligan, Conﬂict Resolution: An Elementary School

Curriculum. San Francisco, CA: The Community Board Program, Inc., 1990.

• Sam Blank Associates.

• Williams, James and Pat Hunter, Conﬂict Resolution Training for Workshop Facilitators.

Nyack, NY: Creative Response to Conﬂict, Inc. nd.

NYC Commission on Human Rights 2004 (rev. 2009, 2014, 2016)

For information about the Peer Mediation Training Program sponsored by the NYC Commission

on Human Rights, call 311. This program is provided at no charge to program participants

BILL DE BLASIO, Mayor CARMELYN P. MALALIS, Commissioner/Chair

MEDIATION STUDENT GUIDE

INTRODUCTION

Commissioner Carmelyn P. Malalis .........................................................5

NYC Commission on Human Rights Overview ..................................6

Protections Under the Law........................................................................8

Mediation: A Brief History ..........................................................................9

What Does Peer Mediation Offer? ........................................................10

BEING A MEDIATOR

Mediator Code of Honor ............................................................................ 11

Understanding Conflict ............................................................................. 13

Origins (which has general deﬁnition

s) ............................................. 13

Responses and Outcomes ....................................................................... 14

BIAS AND VALUES

Values and Cultural Sensitivity ............................................................... 17

Personal Space and Non Verbal Communication ........................... 18

THE MEDIATION PROCESS

STEP 1 Preparing for the Mediation ...............................................20

STEP 2 Delivering your Opening Statement................................20

STEP 3 Gathering Information .......................................................... 23

STEP 4 Identifying Issues .................................................................... 29

STEP 5 Exploring Options .................................................................. 37

STEP 6 Finalizing the Settlement........................................................40

and Writing the Agreement

REFERENCE MATERIALS

Peer Mediation Checklist .........................................................................46

Forms .............................................................................................................. 47

Agreement to Mediate ..................................................................... 47

Peer Mediation Referral ................................................................... 48

Summary of Mediation ....................................................................49

Agreement Draft ................................................................................50

Peer Mediation Agreement .............................................................51

Terms............................................................................................................... 52

Cultural Awareness Deﬁnitions .............................................................54

Further Reading .......................................................................................... 56

Notes ............................................................................................................... 57

CONTENTS

INTRODUCTION

On behalf of the NYC Commission on Human Rights,

I am happy to welcome you to our Peer Mediation

Program, also called “Peer” for short. Peer is an integral

cornerstone of the programming the Commission

provides to youth and students across the City. We are

proud to train you and other students to become peer

mediators, as you are some of the Commission’s most

important ambassadors for human rights.

The Commission was created to foster mutual understanding and respect among all people

in New York City. In furtherance of this goal, the Commission enforces the NYC Human

Rights Law (HRL) – the City’s broad anti-discrimination and anti-harassment law – and

educates City residents about its protections. Fairness, respect, and human dignity are

essential parts of the justice the Commission ﬁghts for every day on behalf of and alongside

New Yorkers. During your training sessions, you will learn about the HRL, discuss the value of

individual and cultural diversity, and explore strategies for addressing conﬂicts and treating

others with respect. When those qualities are not present in our relationships with others,

inequality, inequity, injustice, resentment, conﬂict, and violence may

follow. Mediation can help parties in a dispute better understand

each other’s position and feelings, and help them work towards

a fair outcome for each other. Commission staff use mediation

techniques to help resolve issues in employment, housing, and

other aspects of life. Who better to understand these conﬂicts

and possible resolutions in schools than you,

a trained fellow student?

As a mediator, you can help your classmates work through

their conﬂicts and encourage a more supportive, safe, and

inclusive school. You can serve as a model through your

actions and attitude; show other students how fairness

and mutual respect can lead to better solutions than

violence or intimidation. You will also likely ﬁnd that

along the way you have developed some skills

that will help you at home with your family and

friends, on the job, in your community – and

indeed, throughout your life.

Carmelyn P. Malalis, Commissioner and Chair

NYC Commission on Human Rights

INTRODUCTION

NYC COMMISSION ON HUMAN RIGHTS

AN OVERVIEW

Over the past 60 years, the New York City Commission on Human Rights has had different

names and gone through many expansions of its authority – largely inﬂuenced by our country’s

civil rights movement. However, what has never changed is the Commission’s dedication to

its purpose: to make our City a place where all people “may work and live side by side in

harmony and have mutual respect for each other, and where democracy is a living reality.”

Through its Law Enforcement and Community Relations Bureaus, the Commission works to

ensure the protections of the City’s Human Rights Law. The New York City Human Rights

Law is one of the most comprehensive civil rights laws in the nation. The HRL prohibits

discrimination in employment, housing, and public accommodations based on race, color,

religion/creed, age, national origin, alienage or citizenship status, pregnancy, gender

(including sexual harassment, gender identity and expression), sexual orientation, disability,

marital status, or partnership status. In addition, the HRL affords protection against

discrimination in employment based on caregiver status, criminal history, credit history,

unemployment status,and status as a victim of domestic violence, stalking, and sex offenses.

In housing, the HRL affords additional protections based on lawful occupation, family

status, lawful source of income, and status as a victim of domestic violence, stalking and

sex offenses. The City Human Rights Law also prohibits discriminatory harassment (i.e. the

use of force or threat of force against another individual based on their protected status),

retaliation, and bias-related proﬁling by law enforcement.

The Commission has not always had such wide-reaching and strong powers. When Mayor

Fiorello H. LaGuardia initially created the “Mayor’s Committee on Unity” in early 1944,

following devastating riots in Harlem in 1943, the Committee had no law enforcement

powers at all. The twenty to thirty members of the Committee depended upon persuasion

to resolve conﬂicts. They were successful in promoting fair employment and education

practices, reconciling the community in the wake of anti-Semitic conﬂicts in Coney Island,

resolving pickets of white merchants by Harlem consumer groups, and diffusing two riots

in NYC high schools. They even helped break the color barrier in baseball, advancing the

way for Jackie Robinson to join the Brooklyn Dodgers in 1947 and become the ﬁrst

African-American to play major league baseball.

However, by 1955, it was clear that, without the power to enforce the law, the Committee

could not properly tackle the deep and complex problems of discrimination and bias in the

City. Mayor Robert Wagner called for the Committee’s restructure into the “Commission

on Intergroup Relations.” By act of the City Council (Local Law 55) and signature of the

Mayor, the City designated the Commission as an ofﬁcial city agency to encourage “mutual

understanding and respect among all groups in the City” and “eliminate prejudice, intolerance,

bigotry, discrimination and disorder,” guaranteeing equal rights for all as provided by the US

INTRODUCTION

Constitution and New York City law. The Commission received various powers and duties,

including the power to receive and investigate complaints, initiate its own investigations,

and hold public hearings. In 1958, the Commission received the power to enforce the ﬁrst

Fair Housing law in the country to protect against discrimination in private housing (Local

Law 80, the Fair Housing Practices Law).

In 1962, the Commission on Intergroup Relations was renamed the “Commission on Human

Rights.” Shortly thereafter, in 1965, the members of the City Council joined and amended

the City’s Local Laws 55 and 80 to form the basis of what we now refer to as the New York

City Human Rights Law. Mayor Wagner signed the ‘new’ Human Rights Law in 1965. This

Law gave even broader powers of investigation and enforcement to the Commission and

extended its jurisdiction to include employment and public accommodations – places

where services are provided to the public (e.g. movie theaters, doctors ofﬁces, restaurants,

stores). At that time, the protected classes only included race, sex, age, and national origin.

The Commission now has a much larger number of protected classes and can now enforce

the Law more aggressively by imposing ﬁnes, awarding monetary damages to victims of

discrimination, and enforcing orders to stop discriminatory practices.

From the 1970s to the present, the Human Rights Law has continued to expand through

many new amendments introduced and passed by the City Council and signed into Law

by the Mayor, such as protection from bias-related harassment and discrimination based on

disability, sexual orientation, gender identity and expression, family status, marital status,

and employment protections for those with an arrest or conviction record. The Commission’s

Law Enforcement and Community Relations Bureaus have also improved their procedures

and organization to keep step with the Law. And, in November 2001, the people of New York

City voted to make the Commission a Charter agency – and it is now part of our ofﬁcial

City Charter.

To ﬁnd out more about the Commission and its work, visit our website at:

www.NYC.gov/HumanRights

THE COMMISSION WORKS TO

ENSURE THE PROTECTIONS OF

THE CITY’S HUMAN RIGHTS LAW.

INTRODUCTION

PROTECTIONS UNDER THE LAW

The Human Rights Law protects people in three distinct areas: employment, housing,

and public accommodations. Public accommodations are places that deliver services to

the public, such as restaurants, doctors’ ofﬁces, stores, and theaters.

In addition, the law provides protection against discrimination in EMPLOYMENT based on:

n Arrest or conviction

n Role as caregiver

n Credit history

n Unemployment status

n Survivor of domestic violence, sexual violence, stalking

In HOUSING, the law provides additional protections based on:

n Source of income

n Lawful occupation

n Presence of children

n Survivor of domestic violence, sexual violence, stalking

The NYC Human Rights Law also prohibits:

n Bias-related harassment

n Bias-based proﬁling by law enforcement, and

n Discrimination against interns

In all areas for all classes of protected people, the law protects you against retaliation

if you ﬁle a complaint or you are a witness to someone else’s complaint.

Age

Alienage or citizenship status

Color

Disability

Gender

Gender identity or expression

Marital status

National origin

Partnership status

Pregnancy

Race

Religion or Creed

Sexual orientation

INTRODUCTION

MEDIATION: A BRIEF HISTORY

Although conﬂict resolution is as old as human beings and is practiced worldwide, the

formal practice of peer mediation in the US began during the social and political movements

of the 1960s. Peer mediation developed as a response to the Vietnam War and the harsh

realities of the Cold War when the proliferation of nuclear weapons posed an increased

threat to the world. The ability to handle conﬂicts in a peaceful fashion became a matter

of life and death.

A community’s interest in solving their own problems also led to a growth of conﬂict

resolution and mediation. Mediation taught individuals that when they improved their

interpersonal relationships, they built stronger, more helpful communities and more

rewarding lives.

In the 1970s, President Jimmy Carter suggested forming Neighborhood Justice Centers,

also known as community mediation programs.

He imagined these Centers as places

where citizens could meet to resolve their disputes, and in the case of minor or quality of

life offenses, they provided an alternative to an overburdened court system that was not

designed to build community. Since these Justice Centers were very local and focused, they

quickly exposed group tensions or individuals whose actions threatened the peace of the

community. When punishment was administered, the community service time or ﬁnes went

right back into the area where the violation had occurred - a type of ‘restorative justice.’

The community mediation concept produced successful, effective, and lasting agreements.

Additionally, community mediators found their work to be extremely fulﬁlling. The programs

grew so quickly that by the end of the 1980s, 1,500 volunteers were active in community

dispute resolution throughout New York State alone.

The success of these community mediation programs inspired mediators to bring their

programs into schools and train students as neutral third parties to mediate their peers'

disputes. Since many educators and students were unhappy with current methods of

dealing with school violence – ranging from metal detectors to detention and expulsion –

peer mediation served as a positive addition in the schools that adopted it. Violence

could be prevented while those that participated gained self-conﬁdence, pride, and a

sense of responsibility to one another.

1 Guanci, John A. “Peer Mediation: A Winning Solution to Conﬂict Resolution,” Education Digest, 2002

2 Tyrrell, Jerry. Peer Mediation: A Process for Primary Schools. (London: Souvenir) 2002.

INTRODUCTION

WHAT DOES PEER MEDIATION OFFER?

The following are some reasons why peer mediation is such a positive activity for students

wand their schools.

HELPING STUDENTS:

n Develop relationship skills and communication skills in school and other

areas of their lives;

n Cultivate a positive place for leadership training;

n Design their own solutions to conﬂicts to give them a better chance of working;

n Learn how to express their concerns and interests in a constructive and

peaceful manner.

HELPING SCHOOLS:

n Recognize that students understand the conﬂicts of their peers better than

adult mediators;

n Offer a time and space where disputes, often long-standing, can be resolved

without using valuable class time;

n Reduce hurtful behavior and violence;

n Create more time for learning.

BEING A

MEDIATOR

MEDIATOR CODE OF HONOR

Your goal as a mediator is to understand the nature of conﬂict and

guide your schoolmates toward a solution that each can agree to and

live with. Since many issues that come up in mediation are important,

sensitive, and personal, you must be an interested, non-judgmental,

and thoughtful listener.

BEING A MEDIATOR

Below is a code of honor that a mediator should uphold.

Conﬁdentiality

What happens in the mediation room should stay in the

mediation room and not be discussed with others. As you know,

gossiping is one of the main reasons people need mediation.

Impartiality

Listen to both sides of the story to get the facts. Try to keep

your own opinions or biases out of the mediation.

Non-Judgmental

A mediator is not a judge. You do not decide who is right or

wrong. Your language or actions should not appear judgmental

regarding the nature of the conﬂict or the individuals involved.

Competence Impartiality

Only mediate when you feel you have the necessary

qualiﬁcations to fulﬁll the two schoolmates’ expectations.

Self-Determination

Mediation should never result in an imposed resolution or

agreement. It won’t stick. You may guide, but the disputants

must choose the resolution that they feel will work for them.

Conﬂicts of Interest

If you discover something that would interfere with your

mediating, you should tell the disputants and excuse yourself

from the mediation. Examples of things that could affect your

ability to mediate would be: a friendship with or dislike of one

of the disputants, or prior knowledge of the case.

To the right are some characteristics of a good mediator.

3 Regan, Bridget, Esq. Mediation: A Basic Training Manual.

4 Johnson, Judith M. and Priscilla Prutzman. CCRC’S Friendly Classroom Mediation Manual:

School Mediation From Planning to Practice. (NYACK: CRC, Inc., 1998)

A MEDIATOR IS A

good listener

good team member

non-judgmental person

fair person

helper

dependable person

leader

person you can trust

A MEDIATOR IS NOT A

disciplinarian

person who interrupts

judge

person who gives orders

person who gossips

about mediations

follower

person who gives advice

BEING A MEDIATOR

UNDERSTANDING CONFLICT

Conﬂict is a natural part of life. So why is the ﬁrst, and often only, response to conﬂict so

negative? Conﬂict is neither negative nor positive – it just is. Conﬂict reﬂects a tension between

differences. Those differences can be values, goals, or beliefs – and they can be real or perceived.

And differences can be just that - different - not right or wrong. Your reaction to conﬂict can

determine its outcome.

As a mediator, you need to understand conﬂict – what causes it and how people respond to it.

And, as you develop a better awareness and understanding of the choices available to handle

conﬂict, the more you will be able to help others resolve their conﬂicts.

ORIGINS

Conﬂict comes from many sources, and often several factors combine to set off a conﬂict.

However, you can usually trace conﬂict to some very basic causes:

Limited Resources

(scarcity – not enough to go around - thinking that everything someone else

has subtracts from what you could have and there won’t be enough);

Unmet Needs

(powerlessness– victim – what others have done to you – insecurity about talents,

capabilities, and value as a person measured by attention from others); and

Different Values

(others are not like you – difﬁculty getting outside yourself– lack of empathy for

positions or beliefs of others – self righteous ‘I’m right’ or ‘my way is best’ – threatened by difference).

Additional reasons for conﬂict between students are the ideas or values of identity, security,

control, recognition, and fairness.

Identity

is a set of characteristics expressing your personality and individuality. It can also

distinguish you as a member of a certain group. When people ﬁght over who is someone’s best

friend, they are ﬁghting over a need for identity. Each one is seeking a label to express who they

believe they are.

Security

is physical safety, freedom from fear and doubt, and a feeling of conﬁdence. The

people ﬁghting in the above scenario may not want their respective positions as “best friend”

to be threatened.

Control

can mean power or authority. The need or desire for control is a more difﬁcult source

of conﬂict to handle than the need for security or identity. For the people described above, they

could feel that the position of “best friend” makes them feel powerful and important.

Recognition

or acknowledgement often underlies conﬂict. The students probably want to be

recognized for their contributions or talents.

5 Jasmine, Julia and Ruth Young, Conﬂict Resolution, Grades 5-8.

(New York: Teacher Created Resources) 2004

BEING A MEDIATOR

Fairness

Conﬂicts can be difﬁcult to resolve because it’s difﬁcult to negotiate conﬂicting

values. When a student demands the return of a stolen property, he or she is often

motivated by a need for fairness more than a desire for the property.

Since many factors often spark conﬂict, it can be hard to isolate the exact problem and

discover the relevant issues and facts. Take a little time to sort things out and avoid jumping

to conclusions because you may miss the real issues. If a disputant says, “My problem is that

I need to get out of this class,” the student has really proposed a solution to the problem

– not described the actual problem. The actual problem may be a fear of failure (need for

control) or a dislike of someone in the class (need for security).

RESPONSES

More than simply “ﬁght or ﬂight,” people respond to conﬂict in various ways:

n Avoidance, “Not now, maybe later.”

n Withdrawal, “Not now, not ever.”

n Competition, “I’m right, you’re wrong.”

n Confrontation, “What’s your problem?”

n Communication, “Talk to me. What’s happening?”

n Collaboration, “We can work it out.”

n Problem Solving, “What are we ﬁghting about?”

n Compromise, “Let’s make a deal.”

OUTCOMES

When you think about conﬂict, you probably think about its negative consequences

- ﬁghting, yelling, tension and hurt feelings. But conﬂict is neutral, and it can have

positive consequences too:

n new information;

n better communication;

n desirable changes;

n cooperation instead of competition;

n new alternatives through creative problem solving;

n opportunities for personal growth, empathy, and insight;

n chances for lasting and stronger relationships.

6 Regan adapting Katz & Associates.

BEING A MEDIATOR

Origins and Responses to Conﬂict

7 Sam Blank Associates.

ORIGINS OF CONFLICT

LIMITED

RESOURCES

Time

Money

Property

UNMET

BASIC NEEDS

Belonging

Power

Freedom

DIFFERENT

VALUES

Convictions

Priorities

Principles

Beliefs

SOFT

Avoidance

Withdrawal

Evasion

Ignoring

Denial

HARD

Confrontation

Threats

(verbal, physical)

Aggression

Bullying

Anger

PRINCIPLED

Communication

Understanding

Respect

Compromise

Resolution

RESPONSES TO CONFLICT

CONFLICT

BIAS & VALUES

BIAS AND

VALUES

As a mediator, your biases may prevent you from handling the

mediation in an impartial manner. Check yourself to be aware

of your own biases. You can deﬁne BIAS in several ways.

BIAS & VALUES

Different perceptions, assumptions, and values are probably underneath the problem

or conﬂict between the disputants. And, just like the disputants, you too have your own

perceptions, assumptions, and values. So, while you think about how the disputants’ biases

affect each other and the conﬂict that brought them to mediation, you should also consider

how your biases about them or their conﬂict may affect the way you interact with them.

These differences can involve many things like culture, gender, language, sexual orientation,

custom, race, or religion.

With an understanding of the other’s perceptions, assumptions, and values, all parties can

develop a tolerance for those differences and treat each other with respect/tolerance for

those differences and treat each other with respect.

VALUES

Values are qualities important to you that come from your belief system, such as honesty,

fairness, winning, or being considerate of others. Groups or individuals you identify with often

shape your values, your family, classmates, teammates, or neighbors. This identiﬁcation

can inﬂuence your behavior — how you dress, whom you sit with at lunch, or the clique you

hang out with — and much more. Your values can also drive your decisions and shape your

attitudes. And, since not everyone shares the same values, they can also create boundaries

or intolerance between other people. These boundaries can be overcome with clear

communication and respect for others.

MEDIATORS MUST NOT IMPOSE THEIR VALUES ON THE DISPUTANTS.

CULTURAL SENSITIVITY

A person’s cultural background can be a powerful presence in the mediation room. Cultural

differences can stop the mediation and lead to misunderstanding. The disputants should

realize that their respective cultures inﬂuence the way each one deals with everyday

situations and views the world. The disputants’ cultural differences could have created

the conﬂict to begin with.

Bent: a strong interest.

I nclination: a particular disposition of mind or character; propensity liking.

A ssumption: a fact, statement, or belief taken for granted.

S lant: an individual or personal point of view, attitude, or opinion.

BIAS & VALUES

As a mediator, you need to focus on whether those cultural differences are playing a part

in the dispute and, if so, how to address them properly. Here are a couple of the basic ones

you may notice during the mediation.

PERSONAL SPACE

Different cultures relate differently to their personal space. Some individuals may stand

closer to each other during conversations. The rules for setting up the room for mediation

should remove this issue, but you should notice if one disputant seems to be moving into

another’s personal space. The other disputant could get uncomfortable and misunderstand

this as a sign of aggression or hostility.

NON-VERBAL COMMUNICATION

Other than the words you use to get your thoughts and feelings across to another person,

you also use non-verbal behaviors like facial expressions, posture, characteristic movements,

gestures, and eye contact. How you dress also can be a form of non-verbal communication

by making a ‘statement’ about you.

People who are more reserved may hide their emotions with a “poker face” and feel

uncomfortable with physical contact and expressiveness. A mediator should pay attention

to these individual or cultural differences, and the mediator’s own, and address them with

the disputants if they interfere with the mediation.

Other non-verbal cues include loudness, pauses, silences, and rates of speech — even

interruptions. In some cultures, interruptions are not always rude. They can be a sign that

the person is interested, involved and paying attention — a type of “active listening.”

Some cultures let emotions ﬂow freely and display bursts of emotion. Persons from a more

reserved culture may misinterpret loudness as aggressive, hostile, or ‘too much.’ They may

shut down.

AS A MEDIATOR YOU SHOULDN’T EXCUSE OR BLAME INTERRUPTIONS,

ALOOFNESS, OR PERCEIVED RUDENESS ON CULTURE OR INDIVIDUAL

DIFFERENCES. BOTH PARTIES HAVE A RESPONSIBILITY TO THE MEDIATION.

THE

MEDIATION

PROCESS

Now you can review the mediation process and put it to practice. As

your skill as a mediator develops and your conﬁdence grows, you will

probably make changes to ﬁt your style, comfort level and personality.

THE MEDIATION PROCESS

Check over each step of the mediation process and the skills or techniques necessary to

move the mediation along to a successful outcome. Remember, mediation may not always

follow exactly in this way. These steps are only a helpful guide.

1 Preparing For The Mediation

2 Delivering Your Opening Statement

3 Gathering Information

4 Identifying Issues, Interests, and Feelings

5 Exploring Options

STEP 1

PREPARING FOR THE MEDIATION

After reviewing the mediation steps and helpful ideas to identify and resolve the

conﬂict, you should begin by looking over the room arrangement. A well-arranged

room encourages successful mediation and reinforces the goals of equality and

open communication. Some things for you to consider when preparing the

room are:

1 CHAIRS The same kind for each disputant should be placed so that

disputants are diagonally facing each other with or without a table.

2 PLACEMENT One mediator should sit near and with their back to the

door if an adult coordinator is not present so that someone can be notiﬁed

if a problem arises.

3 SPACE Each disputant should have the same amount of space.

4 NO EATING OR CELL PHONES during the mediation.

STEP 2

DELIVERING YOUR OPENING STATEMENT

Your opening statement sets the mood for the mediation, establishes your role

as a neutral party in the mediation and develops a constructive relationship

between you and the disputants. It also sets out ground rules.

8 Regan

YOUR CHECKLIST

✔ Introduce yourself.

✔ Establish impartiality.

✔

Establish your credentials as a Mediator

(i.e. training and experience)

to promote trust and conﬁdence.

✔ Explain your role and the purpose of the mediation session.

n Mediation is a preferred alternative to disciplinary actions

(like suspension), violence or continued conﬂict and hostility.

n Mediators cannot impose a settlement, but will help them

identify the source of the problem - its issues, interests, etc.

n The disputants are the ones to come to a resolution and

sign a settlement.

✔ Explain the ground rules.

n Each person has an equal opportunity to speak.

n Only one person speaks at a time – no interruptions!

n Listen respectfully.

n No name calling or threats.

n Use respectful language and avoid foul language.

n Set times for bathroom breaks or rest breaks.

✔ Explain that the mediation is conﬁdential and private,

and all notes will be destroyed.

✔ Mention the possibility of a caucus (a side conversation

with only the mediator and one disputant).

✔ Explain what happens if the conﬂict is resolved.

✔ Use every opportunity to be polite throughout

the mediation.

THE MEDIATION PROCESS

Below is an example of an opening statement. To demonstrate your conﬁdence and ease

with the mediation process, you must practice your opening statement until you are

comfortable with it.

SAMPLE OPENING STATEMENT

Hello, my name is ______. (Co-mediators introduce themselves). We are your mediators

today and we have not met with either of you before now. We’re happy that you’ve decided

to try mediation to resolve your dispute. Our job as mediators is to listen to both sides of the

story and help you reach an agreement that is best for both of you. If we are successful, we

will put the agreement in writing, review it, and ask you to sign it. We aren’t here to choose

an agreement for you or to take sides. As long as you both follow the agreement, the dispute

will be considered settled. Everything you say today will remain in this room and any notes

you take will be thrown away.

We ask that you show respect and courtesy for one another by not cursing and not

interrupting one another. You both have pens and paper to jot down any comments you have

while the other person is speaking and you can share them when it’s your turn if you like. Can

you both agree to this? (Wait to get a clear agreement from both parties).

During the mediation we may feel we need to talk to each of you separately. We call this a

caucus. The caucus will last for as long as needed and whatever you say will not be shared in

the open session without your permission.

We will take as much time as you need for the mediation process. If either of you needs a

short break, please tell us.

Before you came in, you signed an “Agreement to Mediate,” which included issues on

conﬁdentiality. Do you have any questions about that or anything else concerning the

mediation? (Wait for their response).

OK, let’s start. It’s school policy to begin with the person sitting to the right of me. _______,

will you please start?

THE MEDIATION PROCESS

STEP 3

GATHERING INFORMATION

Each disputant should ﬁrst tell their story in their own words and speak without

interruption. This is not the time for an open dialogue between the parties. Since you

will be hearing the problems and issues of each person for the ﬁrst time, you should

listen carefully to understand what is creating the conﬂict. You can do this by:

n Asking open-ended questions;

n Actively listening for information and feelings;

n Asking speciﬁc questions, and;

n Summarizing the information.

QUESTIONING AND ACTIVE LISTENING

To gather information you will usually have to ask questions. These questions shape the

quality of communication that occurs during the mediation, so it’s important to know what

to ask and how to ask it.

Open Questions

invite people to describe events in their own words and in their own way.

Note what they emphasize because it very likely reveals their feelings. Open questions are

critical to this stage of the mediation and should not direct or lead the speaker in any

particular direction.

Some examples of open questions:

n Then what happened?

n Tell me some more.

n What about...

n How do you feel about...

n Let’s go back to...

n When did this all start?

n How long have you been feeling this way?

n What did you mean by...

n Please explain.

n Let me understand...

n Correct me if I’m wrong...

n I noticed you were trying to say something...

n What would you like to happen?

n What do you feel is not being understood?

n What do you need to make everything OK again?

WHAT DO YOU NEED

TO MAKE EVERYTHING

OK AGAIN?

THE MEDIATION PROCESS

Closed Questions

can be answered with a simple “yes” or “no” response. They provide

quick factual information, but don’t tell you much more. An example of a closed question

is “Did you feel angry?” as opposed to the open question “How did you feel?”

Effective Questions

refer back to a previous statement, act as a “door opener,” and show

the speaker that you understand them. For instance, “You mentioned that you have not

seen your friends in a while, sounds like you really miss them and hanging out with them

in the neighborhood?”

Bombarding Questions

are multiple questions that don’t allow time for an answer. These

questions confuse the speaker and make him/her defensive and anxious.

Leading Questions

suggest the questioner already has an answer or conclusion to the

question being asked. As a result, the speaker feels defensive and alienated since it can

feel like a fake question or the speaker may disagree with the questioner. For example,

“Don’t you want to give Julia back her jacket?”

Loaded Questions

are questions with one-sided or judgmental implications, usually about

sensitive issues. This question is a poor one to ask because the person answering always

looks bad. For example, “Have you stopped stealing?”

HELPFUL MEDIATION QUESTIONS

The following questions are frequently helpful in mediations. When in the mediation would

you ask these questions? Why?

n You mentioned that you and (name of other disputant) are friends.

Can you tell me more about your friendship?

n How long have you been friends?

n What do you like about (name of other disputant)?

n How did you meet?

n How often do you and (name of other disputant) see each other?

n If you were in (name of other disputant’s) place, what would you think would be

a fair solution?

n How did you feel (at some speciﬁc point during the conﬂict)?

n How has this conﬂict affected you?

n What do you want (name of other disputant) to know about you?

n What do you think will happen if this conﬂict is unresolved?

n If you could go back to the day of the conﬂict, what would you have done differently?

THE MEDIATION PROCESS

n What can you do differently in the future?

n What are you most concerned about?

n How would you feel if this conﬂict got resolved today?

n Since you have agreed on this point, would you like to move on?

STRATEGIC QUESTIONING*

Mediators can use questions in a variety of ways to move the mediation forward.

These are some ways to use questions. Can you think of any others? When would

you use questions like these in a mediation?

Starter Questions:

Opens up the conversation

n What brings you here today?

n You mentioned ______. Can you tell me more about that?

Information Questions:

Asks for speciﬁc information

n How often do you see each other?

n Where were you when the conﬂict began?

Clarifying Questions:

Makes ideas and statements more speciﬁc

n What do you mean by “he never returns your calls”?

n When you say you want to be treated with respect, what do you mean?

Justifying Questions:

Asks why a party holds a speciﬁc position

n Why do you think…?

n How will this solve the problem?

Suggesting Questions:

Introduces an idea in the form of a question

n Given the nature of this problem, do you think it’s possible to…?

n Suppose you tried this option… what do you think would happen?

Participation Questions:

Encourage a quiet disputant to participate

n What do you think about that, Julia?

n How does that idea sound to you, Jose?

*Adapted from Columbia Law School Mediation Clinic Skills

Materials Spring 2009. pp 28-9. Carol B. Liebman.

THE MEDIATION PROCESS

Focusing Questions:

Bring the disputants back to the main point

n How does this relate to the issue of…?

n Where do we go from here?

Stimulating Questions:

Encourages brainstorming

n Are there other ways to solve this problem?

Closure Questions:

Encourages decision making

n Have we spent enough time on this issue?

n Have we agreed on the following…?

Evaluation Questions:

Asks disputants to evaluate their progress

n Why do you think we are blocked on this issue?

n Where should we go from here?

ACTIVE LISTENING

Communication is the foundation of mediation. More than just ‘talking,’ communication

includes careful listening, non-verbal behavior, attention to facts and feelings, honesty and

understanding. As a mediator, you must be alert to the communication going on between

the disputants, and your own role in that communication – how your actions and words

contribute to or hinder it. Good listening is not passive - it is active. In other words, you

must demonstrate ‘active listening’ skills.

THE MEDIATION PROCESS

Focus on Them

Put yourself in each speaker’s place to understand what they are feeling. Listen without

interrupting or giving suggestions and advice. Avoid bringing up similar feelings and

problems from your own experiences. Remain neutral.

Encourage ‘Sharing’

Encourage sharing of information and feelings. Say simple things that prompt the disputants

to continue talking, like “Could you say more about that?” Asking questions also helps you

understand and clarify what the speaker is saying. Keep the story ﬂowing.

Watch Non-Verbal Behavior

Give attentive non-verbal signals while the person is speaking by leaning forward or nodding

your head. Keeping good eye contact can also give the speaker a sense of security.

Reﬂecting

Summarize the main points from time to time to keep the speaker focused. Restating the

facts also shows the speaker that you are really listening to the communication going on

between the disputants, and considering your own role in that communication – how your

actions and words contribute to or hinder it. Good listening is not passive - it is active. In

other words, you must demonstrate ‘active listening’ skills.

Validating

Acknowledge the speakers’ efforts as they describe their concerns and feelings.

THE MEDIATION PROCESS

LISTENING FOR FEELINGS

When people recognize and acknowledge each other’s feelings, the conﬂict can change

and ﬁnding a resolution can become easier. When arguing, people often misunderstand their

feelings or are not fully aware of them. Disputants may say they are angry or feel nothing

at all, when they are really feeling hurt or afraid.

Other times, they can feel insecure about

revealing those feelings. Instead of stating a feeling, they may mention a thought or an

opinion. Answering “I felt like punching him” to the question “What are you feeling?” is not

a feeling.

Active listening encourages you to hear both factual content and the emotions in what people

say. You can tell what a person is feeling by watching their expressions and body language

(posture, eye contact) and listening to their tone and inﬂections. Also, ask directly “How do

you feel?” The section on “I” statements will help disputants identify and state their feelings.

PARAPHRASING

Paraphrasing is beneﬁcial to you as a listener and also to the speaker. It gives you a reality

check of what you have understood from the speaker. Misunderstandings can be easily and

quickly corrected. By using some of the speakers’ own words, disputants will feel like you

really understand them. It makes them more open to communication and to the mediation

process. When you paraphrase, you are using your own words to express someone else’s

message or ideas. You must hear and repeat both content and emotion. A paraphrase is

designed as a question – not a statement. By asking a question, you encourage the speaker

to discuss the events and his viewpoints more. A good way to begin is “I heard you say ….is

that right?”

Consider the following situation:

The basketball coach assigns members of the team in pairs to clean up the locker room after

the games. Tom is very diligent about the work, but his partner George repeatedly leaves

early. Tom ends up cleaning the entire locker room by himself. After the third time George

leaves, Tom has had enough. He goes to the coach and complains, “George does not help me.

I won’t clean that locker room by myself again.”

To paraphrase what Tom said, it would be inadequate to say,” You won’t clean the locker room

again.” Or, “You are really angry.” A more accurate paraphrase would be, “Are you saying that

you will not clean the locker room by yourself?”

9 Sadalla, Gail, Meg Holmberg and Jim Halligan, Conﬂict Resolution:

An Elementary Curriculum (San Francisco: Community Board Program Inc.) 1990.

THE MEDIATION PROCESS

BARRIERS TO COMMUNICATING

You may run into communication problems as you try to ﬁgure out the issues behind the

dispute. These barriers can come from a disputant’s outward behavior, way of thinking, or

conclusions reached.

The most common behaviors

that produce barriers to communication are:

Ordering

Diagnosing

Preaching

Judging

Offering answers, i.e.

a “know-it-all”

Assuming

Accusing/Blaming

Lecturing

Prying

Threatening

STEP 4

IDENTIFYING ISSUES

After listening to each party, you should restate the issues

involved in the conﬂict to make sure you understand them

correctly and that each party recognizes the other party’s

interests and positions. Restating the issues also

encourages the parties to bring up any additional

issues that they have not mentioned.

When framing the issues at this stage:

n state the matters being discussed in a

neutral way;

n reafﬁrm your intention/dedication to resolving

the matter;

n avoid blame; and,

n look toward the future.

Regan.

11 Regan.

THE MEDIATION PROCESS

GETTING BOTH SIDES

Some disputants may be domineering and outspoken, while others are quieter and easily

intimidated. This difference in personality can create an imbalance of power during mediation

and result in an unfair and short-lived agreement. As a mediator, you can equalize

the power by drawing out the less aggressive disputant by asking about their opinions and

feelings, or moving your chair closer to them. Enforce the rules such as no interruptions, and

explain that input from each disputant is important. Don’t assume silence means acceptance.

Be aware that paying extra attention to the less aggressive or quieter disputant may be

interpreted as favoritism, so use this technique only when one disputant clearly and forcefully

dominates or intimidates the other.

POSITIONS AND INTERESTS

n An issue is the subject which may be in the form of a dispute that brings you

to mediation.

n A position is what a person wants or says related to the issue.

n An interest is the reason why that person has that position.

n Interests support and motivate positions.

For example, you and your mother disagree about

the curfew she placed on you. The curfew is the

issue. When your mother told you to be home

by 11 p.m., she expressed her position – what

she wants. When you said you didn’t want to be

home at that time, you expressed your position.

Her reasons for this position are because she is

worried that something could happen to you and

she wants peace of mind. She loves you and, as

your parent, is responsible for you. These reasons

are her interests. You want to be out with your

friends until later because they get to stay out and

you have fun with them, and there are so many

things to do. Your friendships and having a good

time are your interests or reasons. The issue that

arose out of her interests and positions in conﬂict

with yours is your curfew - the issue you disagree

with. You both decide to mediate the issue.

MOTHER

home by

11pm

POSITIONS

YOU

stay out

later

ISSUE: Your Curfew

INTERESTS

MOTHER

love for you

concern

peace of mind

YOU

fun

friendship

THE MEDIATION PROCESS

EXPRESSING ISSUES

After identifying the issue that brought them to mediation, you should encourage the

disputants to express their interests and positions in a constructive way.

“I” Statements

Ask the disputants to use only “I” statements. An “I” statement does not contain the word

“you.” Using “I” keeps the focus on the speaker and his/her feelings and not on the listener.

It keeps one individual from speaking for, blaming, or attacking the other. Here are the key

differences between an “I” statement and a “You” statement.

The “I” statement helps the

person better understand his/her feelings by putting them into words – by “feeling out loud.”

attack

blame

don’t identify feelings, just anger

don’t explain why

don’t attack

avoid blame

identify feelings

explain why

"YOU" STATEMENTS "I" STATEMENTS

A typical “I” statement contains four parts, “I feel”…”when I” …”because”…”what I want is.”

n “I feel…” (state a feeling, not what you are thinking.)

n “When I…” (state the speciﬁc behavior of the other person without interpreting it.)

n “Because…” (state the effect that behavior has on you.)

n “What I want is…” (state what would make the situation better for you.)

You are waiting for your friend in front of the movie theatre. You’re supposed to meet for

the 7:20 show. Once again your friend is late. It’s nearly 7:30 when your friend ﬁnally

appears. Let’s imagine that the issue is lateness - one person is constantly late for arranged

meetings with another. The “I” statement by the party who waits for the other would be:

“I feel hurt and belittled when I have to wait because I feel less important than someone or

something else, and what I want is not to wait.”

12 Jones, Tricia S. and Randy Compton, eds. Kids Working it Out:

Strategies and Stories for Making Peace in Our Schools, 2003.

THE MEDIATION PROCESS

Feeling Words

The following is a list of feeling words you may ﬁnd helpful during the mediation to assist

the disputants in describing their emotions.

13 Jasmine and Young.

helpless incompetent inferior powerless useless

incapable inept mediocre unworthy

WORDS EXPRESSING INADEQUACY

amused

blissful

charmed

cheerful

contented

delighted

ecstatic

elated

excited

fabulous

fortunate

giddy

glad

gratiﬁed

high

joyous

jubilant

marvelous

pleased

proud

soothed

thrilled

tickled

turned-on

wonderful

WORDS EXPRESSING HAPPINESS

afraid

agitated

alarmed

boxed in

cornered

fearful

frightened

jittery

jumpy

nervous

overwhelmed

panicky

scared

shaken

spooked

terriﬁed

threatened

uneasy

unnerved

wary

worried

WORDS EXPRESSING FEAR

WORDS EXPRESSING ANGER

aggravated

annoyed

appalled

bitter

cranky

disgusted

dismayed

enraged

exasperated

frustrated

furious

horriﬁed

hostile

incensed

infuriated

irritated

offended

outraged

provoked

repulsed

resentful

revolted

riled

steamed

ticked off

troubled

upset

THE MEDIATION PROCESS

addled confused dumbfounded jarred perplexed

anxious dazed ﬂabbergasted jolted puzzled

bafﬂed disconcerted ﬂustered muddled rattled

bewildered distracted frustrated mystiﬁed

WORDS EXPRESSING CONFUSION

abused

awful

betrayed

cheated

crippled

damaged

defeated

deﬂated

deprived

deserted

devalued

diminished

dreadful

forgotten

ignored

insulted

intimidated

isolated

jilted

neglected

oppressed

persecuted

put down

rotten

slighted

snubbed

terrible

upset

WORDS EXPRESSING HURT

absurd

awkward

conspicuous

clumsy

disgraced

foolish

humiliated

mortiﬁed

silly

uncomfortable

WORDS EXPRESSING EMBARASSEMENT

abandoned

alone

anguished

blue

burdened

dejected

depressed

deserted

despondent

disappointed

discouraged

disheartened

downcast

empty

excluded

friendless

gloomy

heavy-hearted

ignored

isolated

jilted

let down

lonely

lost

low

melancholy

miserable

moody

pained

pathetic

rejected

scorned

slighted

troubled

weary

WORDS EXPRESSING SADNESS

THE MEDIATION PROCESS

REFRAMING

Reframing, unlike paraphrasing, shifts the frame of reference. Paraphrasing helps you gather

information by saying back to the disputant what you heard, e.g. “I heard you say that you

lent your book to Margo and are angry that she lost it.” Reframing distances the issue by

addressing it objectively and changing the individuals’ focus, e.g. “Sheila, after all this effort

and time, it doesn’t look like your book is going to turn up. I know you think Margo was

careless with it, but let’s discuss when and how to get you another copy.” Reframing can

help the disputants move forward when they are stuck, and keep from repeating the same

things over and over.

By making a statement or question in response to what they are saying, you can help the

disputants achieve new perspectives in facts and/or opinions. Reframing is particularly

helpful when the parties continually focus on things they cannot change (e.g. “I wish I hadn’t

loaned my book to Margo.” “It can’t be lost.”) It also helps overcome unproductive conduct

such as blaming (“Margo doesn’t really care about other people’s things,”) or denial (“I just

want this to be over.”) Reframing also allows you to neutralize a disputant’s statements by

eliminating overtly negative or offensive remarks. You should incorporate what was said with

what was felt. The following is another example of reframing:

Sheryl, the disputant, repeating a statement she had made many times before: “The one

thing that I am sure of is that Chris should never have gotten us into this mess. I just cannot

deal with this mess right now!” Sheryl is stuck in her perception that Chris is to blame and is

focusing on the past.

Mediator, reframing: “Several times you have mentioned how upset you are to be faced with

these problems at this time. (pause) What could you and Chris do now to make it easier for

you to make decisions about these problems?”

With this reframe, you are acknowledging Sheryl’s experience and frustration over having

this conﬂict. At the same time your question emphasizes mutuality and focuses on factors

that are within the parties’ control. This reframe also looks to the future and detoxiﬁes

Sheryl’s statement.

14 Jones and Compton.

THE MEDIATION PROCESS

VENTING

During the mediation, a disputant may become angry as he or she ‘re-lives’ the problem

when it is discussed. Sometimes anger can be helpful when it reveals information and

feelings through “I” statements; it is less helpful if directed toward the other party. When

dealing with an angry person, let the person ‘vent’ ﬁrst to diffuse some of his or her feelings.

Next, listen and paraphrase what was said and what feelings were stated or implied. Then,

you could suggest trying to work things out together. Below are some additional steps

you

could take or suggest to the disputants.

n Speak softly.

n Speak slowly.

n Be aware of your body language.

n Use appropriate eye contact.

n Relax, take a deep breath.

n Have legs and arms uncrossed.

n Sit or stand at eye level, not up

or down.

n Keep thinking, “We can ﬁnd a

win-win solution to this problem.”

n Ask for a break if you need it or feel the

disputants need it - take time out to cool

down.

n Use “I” messages or statements.

n Repeat and try to clarify…”Can you

explain that to me again? I think I heard

you say…”; “I’m not sure but it sounds

like you…”

n Be aware of your choice of words.

n Words that escalate a conﬂict are:

never, always, can’t, won’t, don’t, should,

shouldn’t, unless, better not, etc.

n Words that de-escalate a conﬂict

are: maybe, what if, I feel, it seems like, I

think, sometimes, perhaps, I wonder, etc.

n Afﬁrm the other person’s needs and point

of view, e.g.…”It sounds hard for you to…”

or, “I appreciate your situation…”

n Ask open-ended questions which cannot

be answered by “Yes” or “No.”

n Check what is happening with yourself.

n Is your tone calm, relaxed, and in control?

n Are you really listening?

n Are you brainstorming possible solutions?

n Are you thinking about the other person’s

point of view?

15 Teolis, Beth. Ready-to-Use Conﬂict-Resolution Activities for Elementary Students (Englewood Cliffs: Jossey-Bass), 2002.

THE MEDIATION PROCESS

PROCESSING ANGER

Some additional suggestions to consider when dealing with

an angry person include:

n Count to ten and take a deep breath.

n Don’t get defensive.

n Don’t take it personally.

n Consider the source…it’s not worth getting upset.

n How would you feel in his or her shoes?

n Think of a calm scene and relax.

n Think of something positive about this person and focus on that.

n Exactly why is this person being hostile?

n Try to ﬁnd the humor in the situation.

n Let it go!

16 Center for Court Innovation, Harlem Justice Center

THE MEDIATION PROCESS

BRAINSTORMING

The purpose of brainstorming is to encourage the parties to think of as many ideas for a

resolution as they can. It helps the parties move beyond a deadlock and to think up creative

solutions - it moves the mediation out of the past into the future.

Rules of Brainstorming:

n Accept all ideas without judging them - at this point, no idea is a bad idea.

n Work for quantity - the longer the list the better.

n Build on each other’s ideas - piggyback and elaborate whenever possible.

n Encourage zany and creative ideas - no idea is stupid.

n Write down each idea.

n Set an amount of time for brainstorming and stick to it.

STEP 5

EXPLORING OPTIONS

During this stage of the mediation, the parties discuss possible ways to resolve

their dispute. While negotiating, remember to separate the problem from the

people, to focus on interests and not positions, and to work for a win-win

solution. During this phase, you and the disputants may become stuck and the

mediation may come to a standstill. Consider using these techniques to move the

conversation and discussion.

CAUCUS

A caucus is a brief “time out” in the mediation that can help when progress in the mediation

stalls. You talk to each disputant separately to help them see the other person’s point of

view and ﬁnd out what they want in the agreement to settle the problem. This private

session also allows mediators to ask questions that may be too sensitive to ask when

the other party is present, and allows the disputant to say things to you that may be

uncomfortable to say in front of the other party.

While you are caucusing with one disputant, ask the other to write down possible ways to

resolve the conﬂict. The other disputant has time to think of ideas without the pressure of

others in the room. A caucus provides breathing space for both parties. However, you should

use a caucus carefully. Sometimes a disputant becomes paranoid about what the other is

saying about him/her during the private session.

17 Williams, James and Pat Hunter, Conﬂict Resolution Training for Workshop Facilitators,

(Nyack: NY, Creative Response to Conﬂict).

THE MEDIATION PROCESS

Ground rules:

n Obtain permission from both parties to have a caucus.

n Be brief, if possible.

n Give disputants as much time as they need.

n Keep the conversation conﬁdential unless given permission to disclose it.

n Ask the waiting disputant to write down some solutions.

n If you meet with one disputant, you must meet with the other.

n Ask disputant permission to disclose what was said in individual sessions

CREATING MOVEMENT

Here are some things to try if you get stuck during a mediation:

Paraphrase

Mediators can never paraphrase too much. Sometimes mediations will get stuck because

one of the disputants feels ignored or disrespected. The mediator can summarize the

progress made thus far, and mention the feelings and interests of the disputants again.

Reality Check

Mediations can get stuck if one or both of the parties have unrealistic expectations or

demands. Try asking the following questions: If you were in (the other’s disputant’s) shoes,

would you think that was a fair option? How will this solve the problem? What will happen

if you do not resolve this issue today?

Take a break

It is ok to take a break during mediation. Sometimes stretching or drinking a glass of water

will help calm things down. Mediation can be a frustrating process for the mediators as well

as the disputants, but it is important to stay calm and take breaks if you need to.

Change the subject

If the disputants begin to repeat themselves or go in circles, try talking about something

else. Ask a question about a completely unrelated subject, or say “It doesn’t seem that we

are making any progress on this issue. Maybe we should put it aside and return to it later.”

18 Jasmine and Young.

THE MEDIATION PROCESS

Defer to your co-mediator

If you are feeling frustrated or stuck, your co-mediator might be able to help out. Develop a

sign before the mediation so that your co-mediator will know that you need help or that you

need to take a breather.

Silence

Remaining silent for a few moments can encourage people to say something, or take a

moment to collect their thoughts.

Caucus

Sometimes it is helpful to meet with the disputants separately. One of them might not feel

comfortable telling the whole story in front of the other.

Be honest

Tell the disputants that you feel a bit stuck, and see if they have any ideas for how to move

forward with the mediation. Be sure to mention that you think that it is great that they have

taken the time to try mediation, and reassure them that you are not giving up. (This option

might not work in all stalled mediations. When would you try this? When would you avoid

this option?)

End the mediation

Sometimes mediation doesn’t work. Disputants might be too upset to mediate, or may be

unwilling to negotiate. If you and your co-mediator have tried everything, and you do not

feel that a resolution is possible, thank the disputants for coming in to try mediation, and

apologize that you were not able to help them resolve the dispute that day. Tell them

that they are always welcome to come back to mediation at any time.

(Use this option only as a last resort).

THE MEDIATION PROCESS

STEP 6

FINALIZING THE SETTLEMENT

AND WRITING THE AGREEMENT

Writing an effective agreement is an essential skill for a peer mediator. The

agreement is about what will happen in the future to remedy an action in the

past or one that may continue to happen.

IDENTIFYING COMMON INTEREST(S)

Disputants usually reach an agreement because they share at least one common interest.

You should start the agreement with item #1 identifying the common interest(s) and

describing it in terms of joint purpose. For example,

n ‘George and Jose would like to leave their conﬂict behind them and go forward

in peace. To this end they agree to….’

n ‘Susan and Michelle agree that they want to respect each other’s privacy and put

the tension of the past behind them. To this end they agree to…’

A GOOD AGREEMENT

A good agreement is: understandable, appealing, and precise.

Understandable

n Where appropriate, use the disputants’ own words and expressions.

n State Who, What, Where, When, and How or How Much.

n Use plain English.

n Use full dates: e.g. by April 30, 2017.

n Use present tense: e.g. John agrees to...

n Use separate, numbered paragraphs.

n Avoid pronouns and abbreviations.

THE MEDIATION PROCESS

Appealing

n Use the disputants’ full names, correctly spelled.

n Put goals and positive commitments ﬁrst: e.g., “To create further good cooperation

(goal and a positive comment) between Sheila and Chris, they will take turns every

other night directing the color spotlight while on Stage Crew during ‘Island Idol 2016.’”

n Put mutual obligations ﬁrst.

n Make the agreement equal and balanced: e.g., “Pat agrees to pay Jo ﬁve dollars

($5) every Friday at 3 pm… and Jo agrees to accept Pat’s payment of…”

n Use non-judgmental language because respect is key,

n NOT like this: “Due to Rick’s clumsiness…”

n INSTEAD: “Because Rick wants to pay Daniela for a vase…”

n Do not include admissions of wrongdoing.

n Avoid unauthorized additions or omissions, but they are OK to create

logical balance.

n View agreement as a draft until signed.

Precise

n Be clear about how tasks will be completed, e.g. in person, through the mail.

n Encourage veriﬁcation, e.g. through a guidance counselor; a trusted teacher.

n Be speciﬁc regarding payment terms, e.g. amounts; currency/check.

n Avoid terms that specify value and vague words e.g. only ﬁve dollars ($5),

or around ﬁve dollars.

n Nail down the time frame, e.g. . . every week between January 1, 2017

and . . . until January 31, 2017, when payment will be complete.

While you are writing the agreement, your co-mediator can continue a neutral conversation

with the disputants to keep the positive energy of the mediation going. Good topics of

conversation can be about a movie, school activities or an album that just came out.

n The mediators should read the agreement to the parties to assure

accuracy and thoroughness.

n Get all parties’ signatures, including the mediators’ signatures.

n Provide all parties with copies of the signed agreement.

THE MEDIATION PROCESS

MEDIATOR DOUBLE-CHECK OF WHAT

AN AGREEMENT INCLUDES

n Offer

n Acceptance

n Consideration: there has to be some kind of an even trade.

n You may bring up an apology if you want, if it is non-monetary, and doesn’t have

any physical form. Such verbal apologies may go a long way in ﬁnding resolution.

n Do a reality check with the disputants on the proposed solution.

n Summarize terms of the solution to ensure that everyone has the same

understanding, e.g., “you’ve agreed X and you’ve agreed Y, am I right?”

n Establish follow-up procedures in case the solution is not effective.

n Congratulate the parties on their hard work in reaching a solution together.

Non verbal-indication – you as the mediator have the power to model this signal:

n Shake hands with the parties and shake the other mediator’s hand

n Nod and say “Congratulations” and/or “Well done”

WRITE THE AGREEMENT

The Purpose Clause

Parties usually reach an agreement because they share at least one common interest.

Start the agreement by identifying the common interest(s) and framing it in terms of

joint purpose or a rational goal.

Examples of Purpose Clause include:

n Mr. Allen and Ms. Longo would like to leave their conﬂict behind them and go

forward in peace. To those ends they agree:

n Jim and Dan recognize that they share responsibility for the unfortunate incident

on September 3, and they agree that this isolated incident will be put to rest by

the following understandings.

n All parties want to foster a positive relationship and agree to respect each other

and to communicate with each other. Accordingly, they agree:

n David, Peter and Carlos all seek to reduce the tension among them regarding the

upkeep of a clean and functional locker room. To accomplish this, they have

agreed to the following.

n In order to promote the interest of both the Hispanic community and all the

members of the School’s Student Council, the parties to this agreement have

reached the following understandings:

THE MEDIATION PROCESS

Natalia & Ishraq

Ishraq and Natalia have been friends for about two years. They became friends when they

were featured in a school talent show together and won over the whole school. They both

like to sing, do spoken word, rap, and get very good grades. They sit next to each other in

most classes, and are even Chemistry Lab partners who have gotten the highest grades in

Chemistry because their experiments are successful, and they work well together. Although

they spend time together in school while joking, talking to friends, and practicing their

entertainment talents at recess, they don’t really see each other outside of school.

Last week Natalia’s performance group was competing to be considered for the ﬁnals for

“Def Poetry, Jr.,” in a show at a teen center and she asked Ishraq if she could borrow his coat

to wear on stage. Ishraq knew that Natalia had always liked the coat, and so he gave it to her

on the condition that she take good care of the Limited Edition jacket.

The concert went very well, and Natalia’s group was one of the two ﬁnalists chosen. At one

point Natalia, in her on-stage excitement, wrestled the coat off and threw it backstage. When

the show was over, however, the jacket was nowhere near where she had thrown it. She

searched everywhere in the teen center, but the coat nowhere to be found. Natalia said she

would “make it up” to Ishraq, but did not apologize or say she would pay him for the jacket.

Ishraq blew up in front of all of their friends and left fuming. Natalia played it off at the time

with a “Whatever,” but felt so bad she didn’t even go to the afterparty.

The two have been unable to work out a resolution to this problem, and Ishraq has been

angry with Natalia ever since. They have not been talking to each other, and their Lab

assignment

was late for the ﬁrst time this year because they just did not want to talk to with each other.

It caused them to get a B instead of an A. Their Chemistry teacher became concerned that

his best students were tanking.

The coat cost $145. Although Natalia works, she does not have that kind of money. The

Chemistry teacher suggested mediation and they agreed.

Assume that you have talked about everything on the previous page and understand it:

n Ishraq did not pay for the coat, and although it was a gift, he has no sentimental

attachment to it.

n It’s not winter anymore, so, no need for the jacket

n Natalia needs all the support she can get for the ﬁnals if she is going to get to

“Def Jr.,” maybe even including a duo that the pair had worked on since their

talent show 2 years ago.

n Natalia’s 20-hour/week job wage directly deposits into a college fund, and she

only gets $35 a week.

THE MEDIATION PROCESS

EXAMPLE OF AN AGREEMENT

Issue

Hector and Tommy used to be friends until a couple of weeks ago. At that time, something

happened where Tommy threw Hector’s basketball down the hall and wouldn’t go get it.

Hector was angry with Tommy for this, especially because he thought they were friends.

After that, a lot of rumors started that Tommy was going to get his friends and jump Hector.

And so Hector started to get his friends together in case there was a ﬁght. And then today,

both Hector and Tommy were in the hall and about to ﬁght, but a teacher sent them to

the ofﬁce.

Agreement

1 Hector and Tommy agree that the situation is resolved between them.

2 Tommy and Hector agree not to act differently in front of their friends.

3 Both agree that if they hear rumors, they will check them out directly with each

other in private.

4 Both Hector and Tommy agree to tell their friends that the ﬁght is squashed

5 Hector and Tommy agree to be cool with each other in the future.

CLOSING THE SESSION

Sometimes you may be unable to resolve a conﬂict. The students may just not be

open to mediation so their conversation breaks down. Other times, the conﬂict

may be too big to handle in the peer mediation setting. Whether or not the

conﬂict is resolved, when you are ending mediation you should focus on the

positive: the mediation helped them talk it over, revealed or clariﬁed the issues, and

established a peaceful method for resolving the conﬂict. Commend the students

for what was accomplished and remind them that peer mediation is always available.

19 Cohen.

REFERENCE

MATERIALS

In this section, you will ﬁnd useful resources to reinforce and

further your peer mediation knowledge and experience.

REFERENCE MATERIAL

PEER MEDIATION CHECKLIST

If you want to remember the key parts of the mediation process or other

aspects of being a mediator, look to the letters in PEER MEDIATOR.

resent yourself: Prepare the room & make an opening statement

numerate ground rules: Encourage respectful & proper conduct

licit parties’ stories: Be an active listener & questioner

espect the process: Treat each participant fairly

anage progress: Be comfortable with & in control of the process

ncourage honesty/understanding: Develop a place of comfort & honesty

iscover additional information: Use techniques to uncover hidden information

nquire about interests: Differentiate between positions, interests, & issues

rrange information: Summarize & use information to build consensus

alk to the parties separately: Make smart use of caucus

ffer options: Help parties come up with & choose the best option

esolve it! Summarize a reality check agreement with disputants

CONGRATULATE THEM ON THE SOLUTION!

REFERENCE MATERIALS

FORMS

PEER MEDIATION CENTER

Agreement To Mediate

THE MEDIATION PROCESS

Mediation is a voluntary process. The goals of mediation are to improve communication and

understanding and to develop agreements about future conduct. A mediator, or team of

mediators, will work with you during the session. Mediators are neutral facilitators: they may

make recommendations, but will not impose a solution.

CONFIDENTIALITY

Statements made and information presented in mediation are conﬁdential. An exception to

conﬁdentiality may arise if someone threatens physical danger or harm, or if someone alleges

child abuse or neglect. If this occurs, the mediators and staff of the Peer Mediation Group

may be required to report this information.

AGREEMENTS

If you come to an agreement, you may choose to put that agreement in writing and sign it.

A copy of the agreement will be provided to each party and the peer mediation group will

keep a copy.

By signing below, I acknowledge that I understand and agree to the terms of this agreement.

Signature Date

REFERENCE MATERIAL

PEER MEDIATION CENTER

Peer Mediation Referral Form

Date:

Time:

Referred By:

1 Names and schedules of students in conﬂict. (Fill in as much as you can, and include

teachers’ names and room numbers.)

Name

Grade Home Rm Open Time

Other students involved:

2 What is the conﬂict about? (Circle as many as you need)

Rumors

Name-Calling

Gangs

Boy/Girlfriend

Stealing

Threats

Friendship

Teasing

Prejudice

Fighting

Rules

Other (describe brieﬂy):

3 When did the conﬂict occur?

4 Do the students know that you are referring them to peer mediation? (Check one)

Yes No

5 When should this conﬂict be mediated? (Check one)

Whenever you get a chance

As soon as possible

Today/Urgent!

Please return this to

or drop it in the referral box outside the Mediation Center.

Thank you!

REFERENCE MATERIALS

PEER MEDIATION CENTER

Brief Summary of Mediation

REFERENCE MATERIAL

PEER MEDIATION CENTER

Agreement Draft

Please Draft Your Agreement On This Form

REFERENCE MATERIALS

PEER MEDIATION CENTER

Peer Mediation Agreement

PARTIES

We have participated in a mediation session on

and we voluntarily agree to the following:

Disputant

Mediator

Date

We believe that this is a fair agreement. If for any reason we are having problems that we

can’t resolve on our own, we agree to come back to mediation to get help.

Signed:

REFERENCE MATERIAL

TERMS

Adjudication

A process in which a judge or jury decide liability or guilt related to a legal

claim before a court. The parties must adhere to strict notice and evidentiary requirements.

Parties are seldom encouraged or allowed to speak for themselves. The parties have no

decision-making authority. The court’s decision is binding and enforceable by law.

Alternatives

Other ways to meet underlying needs or interests.

Arbitration

A dispute resolution process in which one or more neutral parties hears the

evidence and arguments of each disputant (and their lawyers) and makes a decision for

them. Arbitration is usually faster and less restrictive than adjudication.

Brainstorming

Freely gathering ideas, without initially evaluating or criticizing.

Caucus

Meeting in which a mediator talks with each party privately to discuss issues and

possible settlements.

Compromise

Mutual giving and taking.

Conciliation

Parties do not meet face-to-face to discuss a solution to their conﬂict. A

go-between relays information back and forth between the parties in an effort to establish

a resolution, as in “shuttle diplomacy.” The parties control the decision-making process.

Conﬂict

The natural expressed tension arising from real or perceived differences.

Disputant

: One engaged in a dispute or argument; party.

Fears/Feelings

The emotional energy that may motivate parties into conﬂict. This energy

must be either channeled into productive problem solving or its intensity lowered so that

parties may engage in a cooperative problem solving process.

“I” Messages

Expressing to the other person how you feel and what makes you feel this

way without blaming and/or attacking the other party. Sentences begin with “I,” and do

not refer to “you.” The pronoun you is never used in an “I” message.

Litigation

The parties sue each other, or bring criminal charges, allowing the court to

render a judgment or ﬁnd a person guilty of a crime.

REFERENCE MATERIALS

Mediation

Parties to a conﬂict work with a neutral third party to reach a voluntary,

mutually agreed upon resolution. The mediator controls the meeting process while the

parties control the decision-making process.

Needs/Interests

May be short or long-term stable concerns underlying a position.

Needs and interests have to do with basic things: time, money, space, and security.

Parties can satisfy a need or interest in many ways. Interest based negotiation allows

parties to work together to solve the problem in a way that meets the most important

needs of both participants.

Negotiation

Without a third party intervention, the parties in a dispute discuss options

for agreement. In this approach, the parties control both the decision-making and

meeting process.

Peer Mediation

Process in which a person (mediator) assists two parties in conﬂict to

resolve their dispute. The mediator only facilitates the dialogue; the parties in dispute

resolve the conﬂict. The mediator is in the same environment as the disputants, such

as a particular workplace or school.

Position

A statement of what a party wants. It represents just one way the party’s

needs or interests can be met. Positional bargaining usually involves a compromise of

both positions.

Third Party

A term used to describe an impartial person, group, or organization that

assists disputing parties in reaching a resolution. Mediators, arbitrators, facilitators, and

conciliators are all considered third party neutrals.

Regan.

REFERENCE MATERIAL

CULTURAL AWARENESS DEFINITIONS

Ableism

To hold a prejudice against people with physical or mental disabilities.

Ageism

To hold a prejudice against a person or group who falls within a speciﬁc age

group (e.g., teenagers, senior citizens).

Ally

A person or thing connected with another, usually some relation of helpfulness

or kinship.

Bias

An inclination of temperament or outlook. A personal and sometimes unreasoned

judgment. To have a settled and often prejudiced outlook.

Classism

A prejudice held against a group sharing the same economic or social status.

Culture

The customary beliefs, social norms and material traits of a racial, religious or

social group.

Ethnicity

Self-identiﬁcation with a large group of people who share a common racial,

national, tribal, religious, linguistic, and/or cultural background.

Discrimination

Differential treatment in favor or against people according to the

particular group to which they belong. To restrict people’s access to, or opportunities

for housing, employment, and education.

Homophobia

The unfounded fear or hatred or both of homosexuality or homosexuals.

Islamophobia

The unfounded fear of or hostility towards Muslims and people perceived

to Muslim.

Nationality

A body of people having the same traditions, language, or ethnic origin, and

potentially or actually constituting a nation. The state, quality, or fact of being related to

a particular nation, as by birth or citizenship.

Oppression

The systematic controlling of a disempowered social group by a group that

has access to power.

REFERENCE MATERIALS

Prejudice

A pre-judgment for or against someone. To generalize about a whole group

of people on the basis of some perceived idea, without complete examination of the facts.

Privilege

A special or peculiar beneﬁt, favor, or advantage enjoyed only under special

conditions.

Race

A concept used to classify humankind according to assumed physical differences.

Although it has no basis in biological fact, race is a tremendously powerful social

construction and continues to affect the lives of both white people and communities

of color.

Racism

A system of individual and institutional practices which subordinate a person

or group because of their color.

Sexism

A belief that one sex is by nature superior to the other and discrimination based

on that belief.

Stereotype

An oversimpliﬁed, generalized image describing all individuals in a group

as having the same characteristics, i.e., appearance, behavior, beliefs.

Tolerance

The capacity for or the practice of recognizing and respecting the beliefs

or practices

Transphobia

Unfounded fear and hatred against transgender, non-binary, and gender

non-conforming people. of others.

Values

Those principles, ideas or objects which we rate highly and often live by. Values

are often passed down from generation to generation.

REFERENCE MATERIAL