WEEK 117

“ Training in understanding the role of third parties”

The role of third parties in mediation cannot be ignored. Many times third parties play a vital role in the decision-making process.  They may have a ‘say’ in the decision to be taken by either or both the disputing parties.  Trainer has to prepare the mediators to be to understand the role of third parties in the resolution of disputes.

The role of third parties in mediation cannot be ignored. Many times third parties play a vital role in the decision-making process.  They may have a ‘say’ in the decision to be taken by either or both the disputing parties.  Trainer has to prepare the mediators to be to understand the role of third parties in the resolution of disputes.

One of the techniques used is Asking questions. 

By asking questions

In the first or second private session mediator may ask :

1. Whom does the party consider as trustworthy in his /her family?
2. Whom does the other party consider as trustworthy amongst persons associated with him/her? 
3. Whom does the other party consider as trustworthy in his/her family?
4. Whom does the other party consider as trustworthy amongst persons associated with him/her? 
5. Whose words are valued more by the party?
6.  Whose words are valued more by the other party? 
7. Who can bring a difference in the settlement terms?
8. Whom does each of the parties want to consult? 
9. Whom does each of the disputing parties want to avoid in negotiation?
10. Whom does the party want to involve in the negotiation?
11. Is someone else compelling a party to take the decision in one way or the other?
12. What is the interest of the third party?
13. Does the party have any conflict of interest with the third party who has accompanied him /her?    
14. What is their opinion regarding taking an opinion from an expert?
15. Are you afraid of someone? Can you help me understand why?

…etc.

Checks

While asking these questions, the mediator has to be very careful. Disputing parties should not get a feeling that the mediator is probing. Trainer has to train the mediators to be, in understanding the vital distinction between probing and collecting information.

Preparation 

The trainer has to prepare in advance a list of at least 50 different questions that may be asked to each of the parties to understand the role of third parties and keep it ready.

(Each of the prepared questions may also be used for discussion in advanced trainings or refresher courses .)

How to teach the technique?

A simulation exercise may be introduced.

A role play with general facts is distributed to both the parties.

(and also to all the trainee mediators)

Trainee Mediator may be asked to ask questions to each of the parties in private session,  regarding the role of third parties.

If the Trainee mediator fails, The trainer may step in as a mediator.

Or

The trainer may use a whiteboard and marker, and ask each of the participants to suggest some questions. The trainer has to note down all these questions on the board.

In the end, trainer may act as a mediator and continue asking questions in this regard. 

Once the questions are asked, the trainer has to do ‘de briefing’ as to what was the intent behind asking each of the questions.

When should this exercise be done?

Either before or after taking a session on “role of third parties in mediation”.    

“A wiseman’s question contains half the answer”.

Solomon Ibn Gabirol
Jewish Philosopher and Poet

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(All Copyrights reserved by the author S.Susheela) 

Mediation training should equip the trainees to also assist (as mediators), the disputing parties to handle that one and the only thing which troubles them in taking decisions. Often it is seen that the disputing parties are on a crossroads. At times a thought makes them move towards one side and very soon another thought steps in and makes them take a different turn. It is under such circumstances they will be unable to take a final call. Though they may not be expressing this dilemma, or confusion in the process of taking decisions, an experienced mediator can reasonably make out what may be troubling them. Many times disputing parties hesitate to disclose what they actually want to happen. 

Even though a mediator assists the parties in the process of decision making, taking a decision, either way, is completely left to the choice of the parties. But, in order to assist the parties, the mediator has to understand what exactly this party wants to happen and does not want to happen. 

To understand the answer to this vital question the following technique can be used:

Asking one single question

Example 1:

Husband has filed a petition for restitution of conjugal rights. Wife is opposing the same. 

Mediator: Help me understand is there some expectation of yours, which if fulfilled would make you get back to your husband and live with him?

Wife: “Even if he gives me hundred crores also I will not go and live with him”.

(This answer may give an indication to the mediator that it may not be a fit case for reunion)

Example 2:

Suit for specific performance of agreement. The Land Owner refuses to get the sale deed executed. Agreement holder insists upon execution and registration of sale deed., as the subject side is abutting to his house.

Mediator to Land Owner: Is there something that you are looking at in exchange if you have to get the sale deed executed in favor of the defendant?

Type 1 answer by Land Owner:

Come whatever may I will not sell this property.

(This answer gives an indication that there cannot be a decree by consent for specific performance, and refund of money may be the other option).

Type 2 answer:

Defendant has multiple properties. If I leave this property, where will I go? I also want to have some property in my name.

(This answer gives an indication that the plaintiff may be looking at the defendant’s property in exchange for the suit schedule property). 

Type 3 answer:

I cannot lose my complete hold over the property. I should have some name attached to this property, which is inherited by me from three generations.

(This answer gives an indication that the plaintiff may be willing to enter into a joint venture with the defendant or in sharing the property with the defendant etc.) 

When is this technique used

1. It cannot be and should not be used in the beginning sessions.
2. It can be used when negotiation has started and nothing is working .
3. Only when there is an impasse situation, this technique may be used.

Preparation: Mediator has to pre-meditate on the question to be asked.

The question should be framed properly. It is ideal to frame 2-3 questions and zero on one. It is also ideal to write the question(s) on paper and identify the question to be asked.

Setting an atmosphere: Mediators have to set a comfortable atmosphere before using this technique. The agenda has to be set and informed to the party. 

Example: Mr.. I will ask you a question. You are free not to answer the same. But, if you feel like answering, please answer. I will assure you that your reply will be kept completely confidential. Please note that you need not have to answer immediately. After I ask the question, it can take fifteen minutes (a week’s time etc) for you to get back to me. I request you not to answer immediately.

Thus the entire session should have one question from the mediator and answer to the same by the party. The session should not have anything else on the agenda.

Where is this technique being introduced?

It is ideal to introduce this technique in advanced mediation courses, or in refresher courses where the trainees have experience of conducting at least 100 mediations.

Method:

It is used in the form of a simulation exercise.

Case history in three to 4 lines is given.

Each participant is asked to write down one and the only question to be asked to both the parties. (Question proposed to be asked to one party may be different from the one proposed to be asked to the other party).

“The art of proposing a question must be held of higher value than solving it”

Georg Cantor
An outstanding violinist and mathematician who invented ‘set theory’

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(All Copyrights reserved by the author S.Susheela) 

Summarizing by way of restatement is not just telling the gist of the lengthy narrative given by the participants in mediation. Summarization by the mediator has to include the technique of reflection of emotion and identification of interest of the narrator. Bringing out the meaning of the contents of the narrative of the participants in mediation through summarizing is an art. 

In order to strengthen the trainees in this communication skill the following exercise may be used :

1. A lengthy passage consisting of the narrative given by each of the disputing parties running into approximately two pages each, is to be given to all the trainees.
2. The narrative is to be in a monologue form.
3. One of the trainers has to play the role of the disputing party. 
4. Some of the trainees are to be requested to play the role of mediator and restate the narrative.
5. Narrative of one of the two disputing parties must be taken 
6. The written script may be read over loudly by the trainer, playing the role of party to the trainee mediator. 
7. All the other trainees, and the other co trainers have to be requested to evaluate the restatement made by the trainee- mediator, by noting down the points.
8. At the end, the trainer who has played the role of mediator will have to give the feed back. Later the other co trainers and the other participants/trainees have to be requested to give their feed back.
9. The same process has to be followed with the narrative of the other disputing party.

Evaluation can be done (1) by using white board and marker or (2) by using a printed chart, prepared well in advance and distributed to the participants after pre-briefing.

Evaluation charts collected from all can be handed over to the trainee mediator.

Feedback from the trainee mediator can be taken. Trainee mediators may be asked to do self-evaluation.

EXAMPLE OF EVALUATION CHART

Questions	Remarks	Suggestion if any in one sentence
Whether the summarization was good /bad or ok/or excellent
Was the mediator establishing connection with the party?
Was the mediator demonstrating understanding and empathy?
Did the mediator sound too mechanical?
Did the mediator leave out any important information conveyed by the party? What was it?
Did the mediator use the technique of, reflection, filtering, neutral reframing?Which technique was not used?
How long did the mediator take while restating the narrative ? Was it too long? Or too short or appropriate?
How was the body language of the mediator?

such other questions may be incorporated into the chart.

PREPARATION:

1. Trainer has to keep the narratives of both parties ready well in advance.

Trainer has to spend quality time in the preparation of chart.

2. The chart has to include questions depending on the background of the trainees

And also depending on whether it is an advanced course or a refresher course?

3.  The questions in the chart should instill enthusiasm in the trainees towards learning more about the technique of summarizing which they might have thought of or presumed as a very simple technique.
4. The questions in the chart will have to be cautiously prepared, so that they help in strengthening the trainees in several associated skills and techniques that are to be made part of summarization.
5. Sufficient number of copies must be kept ready. 

Advantages

Both trainers and trainees will learn that every part of the mediation process is a meaningful process and a casual approach will not be appreciated. 

They will learn that mindfulness and effective participation of the mediator is to be meticulously demonstrated.

They will learn that ‘there is much more to learn’ and get motivated to work on themselves. 

Professionalism of the trainer gets reflected when such exercises are made part of a refresher or advanced course.

Caution: 2-3 minutes of pre-briefing as to what is required to be done by whom has to be done 

5 minutes of debriefing related to the feedback from participants and trainers should also be done.

“Perhaps the best test of a man’s intelligence is his capacity for making a summary.”

Giles Lytton Strachey
English Writer and Critic

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(All copyrights reserved by the author S.Susheela)

This technique is generally used in advanced courses or in refresher courses where the trainees are mediators who have handled at least fifty live cases. 

Request 3-4 trainees to give a gist or brief narrative of the facts of the case which was handled very recently, in writing. Brief history should not go beyond ten lines. 

Ask them to identify the stages from the last step to the first step of mediation.

Example

(Backward) Stages	IMPASSE SITUATION	What could have been done Or What could have been done in a better manner (Suggestions from other trainees)
Agreement writing	Power of attorney holder had signed the agreement of settlement, he had no authority given to participate and settle the matter in mediation.The Court refused to accept the settlement.	Mediator ought to have checked himself/herself.Should have requested the Lawyers to verifyShould have requested to get another POAShould not have proceeded with mediation at all unless this requisite was met with.

Pick up another case history from another trainer and get the feedback from all on the third column, regarding the problem faced by the mediator during the stage of agreement.

1.Agreement writing

2. The lady who had agreed for divorce by receiving a huge amount as alimony, refused to sign on the ground that her father is not agreeable for divorce.

1) Mediator ought to have listened to the father also. 2) Mediator should have asked the lady to bring any one else whose views are important for her in making decisions, and involved her father also. 3) Mediator has not addressed the issue of emotional impasse. 4) Mediator has to spend quality time to understand the troubled feelings of the wife.5) Mediator has to see whether she can be assisted to shift her focus from past to future.

STEPS

Thus while using this technique:-

1. Three or four trainees must be chosen from the group.
2. A particular stage of mediation is chosen. (Agreement/negotiation/ bargaining/ setting an agenda etc).
3. These 3-4 trainees must be asked to give a narrative of the case in ten lines, and fill in columns 1 and 2 only. Leaving the third column blank.
4. This must be asked to be prepared well before the training, and a sufficient number of copies must be kept ready, depending on the number of trainees.

Out of the four write-ups one is taken and distributed to all

5. Each of the trainees is to be requested to fill in the third column.
6. Trainees should be informed that their suggestions should be in one sentence only. 

Note 

Pre-briefing must be done by the lead trainer – very neatly and efficiently in order to make the trainees understand the concept properly, without there being any room for confusion.

(In order to make them understand the technique properly, the trainer can also choose to give a sample case with the third column being already filled in.) 

This technique can also be used by making use of the whiteboard. As this is a group activity, this will also help them in understanding the importance of Brainstorming. 

Advantages

1. Participants will enjoy their participatory role in learning through group activity.
2. The cases wherein the mediators had felt some difficulty can be discussed in a more professional manner, and suggestions can be received for overcoming such difficulties.
3. As it is virtually a brainstorming process, the spirit of exchanging spontaneous solution(s) to a specific problem is encouraged.

Debriefing

As part of debriefing, the lead trainer has to inform the participants that the Mediators can adopt the same process in their actual mediations also when there is a situation of impasse so that they need not refer back the matter as not settled, but do this exercise, and take help from their colleagues, without disclosing the identity of the parties to the mediation. 

“Creativity is not the domain of one single person. Through free association of thoughts and brain storming , an accidental suggestion can be the best solution.”

Joshua Fernandez
Malaysian Film Director

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(All copyrights reserved by the author S.Susheela)

The level of preparation required for excellent performance is always different. 

Fear of failure can only be overcome with absolute preparation.

Often it is seen that underestimating the importance of efforts to be put in and overestimating the capabilities of a trainer notwithstanding the fact that no additional efforts were put in have been the cause for poor performance. 

Effort

Trainer has to seriously work on estimating ‘What is the right amount of effort which is required to be put in.’

Mindset

“I have done this many times. What is there in it?” – This mindset adversely affects the professional growth of a trainer. With this mindset, a trainer will remain where he/she is and will not grow further. 

This mindset is to be replaced with: How differently can I give this presentation?

How can I make the presentation more effective?

What more inputs can I give? 

Should I work on improving my content knowledge?

What more techniques and skills do I need to learn and introduce?

How do I move my presentation from being ordinary to extraordinary?

Action

‘Desire to excel’ alone will not be sufficient

Trainer has to constantly question : 

How do I push myself into action?

What would happen if I do not put in extra efforts?

Trainer has to work on removing the negative thoughts blocking the course of action like:

1. I am happy where I am 
2. I am not too ambitious 
3. I do not want to compare myself with any others. 
4. I am doing my best. 

Trainer has to understand and introspect that notwithstanding above four factors being true, whether the trainer has made use of his/her potential to the fullest. If not, it is an injustice to oneself as well to the system. 

Training is a field where only excellence is rewarded. Being recognized as an ordinary or mediocre trainer will not help the trainer to fulfill the desire or ambition of continuing in the profession. 

Shortfalls

Underestimating the importance of preparation.

Not estimating the amount of effort to be put in.

Not working on the estimated input required for the excellent output.

Not checking in advance as to whether the required effort was put in or not.

“We are what we repeatedly do. Excellence, then, is not an act, but a habit.”

Will Durant
American Writer and Philosopher

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(All copyrights reserved by the author S.Susheela)

A trainer may have a broad picture of the contents to be presented. In order to demonstrate professionalism, it is essential that the contents are given one after the other in a sequential manner.

What is to be stated at the end cannot be said in the beginning. Hence it is ideal to fix the boundaries for the presentation, well beforehand. What is to be said in the beginning and at the end has to be identified in advance. In between, the contents have to be placed and presented in such a way that the trainees recognize a smooth flow of understandable thoughts flowing from the beginning to the end.

Some of the following tips may be helpful:

1. Build the presentation sequentially.
2. Take only one point at a time. Fix the time limit for the same. Deliberate on the chosen point. Tell all that you want to tell within that allocated time about the chosen point alone. Control any other thought popping up in your mind and eagerly waiting to come out from you. Exclusion of other points/ideas is the best way to focus on one idea or point at a time.
3. The temptation to speak or deliberate upon what other trainers/speaker has left out in her previous presentation must be strictly avoided. Doing justice to your presentation must be the point of focus.
4. While choosing the contents choose the ones that matter most to the trainees but not just to you.
5. After completion of presentation on a chosen point/idea/ content, give a pause and then prepare the audience/trainees for the next point, and then introduce the next concept.
6. In the absence of a pause in between, the entire presentation may give the trainees an uncomfortable feeling of drenching in an unexpected downpour of rain. 

Giving headlines for each part of the content makes the presentation very impressive. 

Example 1. Now let us see when Open-ended questions are not supposed to be asked? 

Example 2. Now let us understand how should we set an atmosphere before asking the identified open-ended question in a private session? 

Remember that presentation is like moving from Place A to Place B. One cannot jump. One has to take one step after the other – only towards B.

Presentation is not a number game. Even if the point canvassed or concept introduced is only one, how methodically sequentially one presents the said single concept makes the presentation more interesting. 

Trainers cannot ignore that all that they communicate should be understood by the trainees completely and that the training is meant for the benefit of the trainees. 

Advantages

The Trainer does not get stressed out.

The Presentation can be given with ease.

Trainees receive the contents in an organized manner. Chances of conveyed information getting lost because of scattering can be avoided. 

“Sequence is an essential part of discipline.”

Slamw

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(All Copyrights reserved by the author S.Susheela)

When there is a shortage of time for detailed preparation, the easiest way to have a road map for any presentation is to go by the ‘Vertical and Horizontal Table Technique.’

A given topic is divided into three main subtopics. These sub-topics are written in vertical columns.

Besides each subtopic – in the horizontal blocks, what needs to be done is specifically mentioned, in different blocks. 

Keeping this worksheet on hand, the trainer can very effectively go on with the presentation.

Example:

TOPIC:– CONFLICT

1. Definition Difference between conflict and dispute	1.What is conflict? Example 2. What is dispute Example…..	When does conflict arise?Example… When does Dispute arise?Example…	Case history…Soni V Rani.. Case history		10 minutes
2. A. Source of Conflict B. Types of conflict	Persons Situations Inter personal Intra personal	Example	Simulation exercise Question and answer/Board writing		5 minutes 5minutes
3. Resolution of conflict Types of conflict	Why should conflict be resolved TechniqueTo resolve conflict	Reasons STABEN Approach		Facilitation process + Board writing. Giving 3 conflict situationsAsking participants to form a group of threeTry to resolve the conflict applying STABEN TECHNIQUE	5 minutes 5 minutes
				Total Time ……………….. 30 minutes

Advantages

 When Vertical and horizontal table technique is adapted:-

1. There will be no room for confusion
2. Presentation remains on track
3. Stress and anxiety factors will be eliminated
4. Professionalism gets demonstrated
5. Time management becomes easier.
6. Trainer can go ahead with the presentation with only a single work sheet on hand.

This technique is more useful when suddenly a trainer is given half an hour or an hour’s notice to give presentation on a topic.

Over a period of time trainer has to be capable of designing the table mentally and go ahead with the presentation. 

Note: The number of horizontal columns need not be the same for each sub-topic.

“Methodical preparation reduces anxiety of failure”

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(All Copyrights reserved by the Author S.Susheela)

‘Know thy audience’. This is the first step before even designing the schedule for training for referral judges. With the amendment to the Code of Civil procedure in the year 2002 and being in the year 2022, a trainer should have a guesswork of how many trainings on this topic the trainee judges would have gone through. How should the training curriculum be designed? The structure of the training program always depends upon the background of the trainees. The training curriculum for trainees who have been recently appointed as judges will be entirely different from the training curriculum for those who have experience of 5-10-15 years or more in the judiciary. Sometimes the trainees may form a mixed group. 

It is always better to know beforehand as to how many of the trainees have already attended training for referral judges in the past? Based on this crucial information the curriculum has to be meticulously designed. A trainer should not hesitate to get this information from the organizers of the training. At times, this information is made available to the trainer on the training floor. Even then, on the spot, the trainer must have the capacity to reschedule the sub-topics within the main topic, in order to avoid the boredom factor which may arise due to repetition(s).

INNOVATIVE THINKING

Topics and subtopics must be chosen very cautiously. 

TO BE AVOIDED:

1. While dealing with the topic under the Head “Cases which can and cannot be mediated”:-
   A trainer has to make a reasonable guess as to what all would have already been introduced to the trainees in the previous training sessions.

Example

Asking a question as to which are the cases fit for referral to mediation as per the Judgment in the case of Afcons Infrastructure and others v. Cherian Varkay Construction and others, may make the trainees who have been in the judiciary for more than ten years, lose their interest, as they would have gone through this judgment many times. They may not feel comfortable if they are asked to tell one after the other the list of cases that are fit for mediation. 

On the other hand, taking them through the practical aspects related to the very same sub-topic may make the session very interesting.

The trainer may choose some topics like:

1. Power of Attorney
2. Death of a party
3. Third party interest is reflected in the written statement but in the suit such party is not made a party.
4. Tripartite agreements.
5. Settlement having Consequences on other stakeholders. 
6. Family Court matters – where Parties are living in two different countries and child is a citizen of foreign country etc. 
7. Rights of subsequent purchasers
8. Conflict of interest amongst legal representatives.
9. Should the court wait for the written statement? – what are the advantages- disadvantages? 

Example

Can a matter where the power of attorney holder is representing the party be referred to mediation, even if there is no clause authorizing the power of attorney holder to enter into a settlement?

Can the Court ask the party to get a power of attorney in this regard?

When can the Court ask?

If a report of mediation settlement is received by the Court where the power of attorney holder has represented one of the parties, and such power of attorney holder is not authorized to participate and enter into settlement in mediation, will the report be acceptable? 

Whether caution should be taken before referral?

Whether such cases fall under the category of cases that cannot be mediated?

What if the settlement is arrived at by a party with the power of attorney holder of the other party, who was not authorized to settle or enter into compromise but was authorized only to conduct the case on his behalf, and the Court accepts it, and later the original party seeks for setting aside the same on the ground that P.A.Holder has traveled beyond his power. 

What if the PA Holder dies after settlement but before the settlement is accepted by the Court

What if the original party dies, after settlement through the power of attorney holder but before it is being accepted by the Court?

A trainer has to make a list of all possible situations/questions under each of the topics. 

Where the trainer is not into active practice, it is ideal that the trainer gets all inputs from practicing lawyers and other mediators, collects information from several live cases and then gives the presentation.

Trainer should not forget that source of information can also be through colleagues, academicians, co-trainers, lead trainers, other advocates, and mediator friends. 

However, a thorough preparation cannot be ignored.

TOPIC ON CITATIONS RELATED TO MEDIATION

If a trainer chooses to speak on this topic: 

1. List of case laws must be kept ready in hand.
2. It is ideal to distribute the case law /citations as a handout.
3. Trainer must have read the entire judgment 3-4 times.
4. What are the facts of the case must be culled out in 5-6 lines.
5. What is the ratio decidendi has to be very specifically identified.
6. Mentioning some legal proposition as per trainer’s reference from google without names of parties, details of date of judgment, names of the Court /citation etc. must be avoided, as it may reflect on the lack of professionalism on the part of the trainer.
7. Any decision which is out of context of the topic related to referral must be completely avoided, failing which, trainee judges may outright reject the same as being irrelevant and out of context.

INTERACTIVE SESSION

Questions on the following lines may be framed and posed for discussion:

1. After the mediation settlement report is made available to the judge, what are the difficulties faced by them?
2. Trainer to give them one or two case histories where the report could or could not have been accepted by the Court. 

(For this trainer has to keep record of at least twenty five case histories, readily available in the trainer’s kit and make use of the same one after the other depending on the time available.) 

Referral of Criminal cases

A trainer may have to equip oneself well before dealing with this topic. Basic provisions of the Criminal procedure Code and IPC, several decisions under S. 482 regarding quashing must have been thoroughly gone through. When compounding is permissible, when it is not, when criminal cases can be mediated and when it cannot be, how settlement can be drafted and how it cannot be; all these aspects have to be thoroughly understood. A statement from a trainer that “I do not handle criminal cases” may not be well received by the trainee Judicial officers. The components of referral are expected to have been thoroughly understood by the trainer, irrespective of the area of practice of the trainer, or if the trainer feels very uncomfortable with a topic/subtopic may gracefully avoid handling such session(s).

 “ I know nothing” should precede “I know something”.

SLAMW

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(All Copyrights reserved by the author S.Susheela) 

Trainers often come across two difficult situations:-

1. Time is short – they are unable to cover what all they wanted to cover.
2. More time is available – but they do not have material to deliver till the time slot given to them, gets over.

In the first situation, some trainers try to fill all that they know about the topic to be covered, in a hurried manner, without even giving a pause here and there. They will be virtually running at high speed without bothering who is following them or not. 

In the second situation, even though the trainers will very well know that they do not have further substance with them to deliver, nevertheless, they, 

1. go on repeating whatever they had already said 
2. Take a very simple straight example, that can be communicated in one or two sentences and go on explaining it in fifty sentences. 
3. get into talking mode from the mode of presentation and keep talking out of context.

All that they want to prove is that they could handle a session till the end of the allotted time. 

Sometimes they even stretch their session so much that they encroach upon the time allotted for the next speaker/session master.

“Procrustean Bed”

To avoid the above two difficult situations, a master gave his students a very harsh example but asked his students to remember the story of a “Procrustean Bed”.

It is a story from Greek Mythology. Procrustes was a robber. He used to tie his victims to the bed. Cut their legs if they were longer than the bed. Stretch them cruelly if they were short.

It is necessary for every trainer to remember this story. Ultimately whatever is presented is for the trainees to receive. Trainer has to focus more on the comfort level of the trainees than on the subjective satisfaction of the trainers. By Cutting the presentation too short or stretching it too much, trainees should not get the feeling of being laid on the Procrustean bed. 

POINTS TO REMEMBER

1. When the time is short.
   Begin your session by informing the trainees as to how much time is available with you and then proceed with the topic. 
   Place only one or two very effective points which fit into the available time.

2. When time is more than what you could handle:

• Gracefully move from the Dias, requesting the co-trainer/ next speaker or the lead trainer to handle the session.
• Use the remaining time for a question and answer session.
• Ask a question to the trainees, and from their answers develop the topic.
• Use a small simulation exercise – which may not be closely associated with the topic allotted to you, but, related to any of the topics dealt with by earlier speakers.
• Convert the session cleverly into the facilitative mode of presentation and collect views from the trainees involving each of them.

FORESEEING

Trainers must always be prepared to meet both situations.

What would I do if I do not get the time I am allotted? 

What would I do if I am unable to cover all that I wanted to cover in the given time?

What would I do, if I go blank after a few minutes of my presentation?

What would I do if, the materials that I had prepared sufficiently to cover a session for an hour get over in 15 minutes?

“Time is a standard scale – You need to adjust to it”.

Slamw

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(All Copyrights reserved by the author S.Susheela)

This part of training is generally given in advanced training. Trainees who have done a minimum of fifty training can be given training in this technique. 

Step 1

Listening to the Facts from both the parties, in a private session.

Take notes

Step 2

Listening to the narratives given by both parties, in a private session.

Take notes.

Step 3

Make note(s) of “Admitted fact and disputed versions”.

Step 4

Decide whether: 

1. There is any communication gap.
2. There is any misunderstanding or misinterpretation
3. Whether the acknowledgment of fact is associated with regret, or explanation justifying the action associated with the fact.
4. Whether by giving clarifications, the situation can be understood from a different angle.
5. Whether addressing the fact would help in resolving the dispute between the parties.

Step 5

(Note: Only after the mediator gets confirmation about points 1 to 5 of Step 4, from both parties must Step 5 be considered). 

Set an atmosphere for a joint session between the parties.

Lay down the ground rules

Ask each one (one after the other) to tell what happened on the given day ( Specific fact).

Ask each one (one after the other) to give his/her version as to why the incident took place?

Step 6 

Moving towards solution 

Ask them to re-live the experience before the unfortunate incident took place.

Imagine them to be in said situation 

Step 7 

Only two questions from the mediator 

Question 1: Now, if the same thing happens today, What would you do? 

Ask this to each of the parties, and if the answer is in a positive direction, pose the next question

Question 2: How do you consider responding to such situations which you may come across in the future? 

Step 8 

Get answers from both 

Find out whether an empathetic connection is brought between the two.

Whether each has understood the other, as that other person expected him/her to be understood.

Example 

The Husband has slapped the wife

Both husband and wife refer to this fact in a private session.

But each gives a different version about why the given incident happened on that day.

Ask the trainees to follow the above 8 steps and watch the simulation exercise.

Trainer’s Preparation

A Trainer should have at least 5-10 such simulation exercises. Situations can be taken from matrimonial cases, child custody cases, commercial transactions, tenant and landlord cases, partnership cases, specific performance cases etc.

1. Facts must be stated in a single line.
2. Version or narrative from each side must be in about ten lines.

Techniques used by mediator

1. Identifying 
2. Whether clarification is necessary 
3. Setting the agenda and setting the atmosphere 
4. Use of effective questions. (not more than 3) 
5. Mediator speaks least when this process goes on. 

When is this exercise done?

1. After the session on empathy
2. After the session on communication skills where the technique of clarification is used
3. After the session on neutrality – where the mediator is taught to use this technique, so that mediator does not clarify, but makes each party give a clarification to the other, to avoid the mediator’s neutrality getting affected, and empathetic connection revives between the disputing parties. 

Advantages

1. Trainees as mediators understand the value of a systematic approach 
2. They understand the importance of planning ( setting an agenda) before facilitating each step of the mediation process.
3. They understand that each part of the mediation process has got its own importance.
4. They understand the value of professionalism.

“Professionalism – It’s NOT the job you DO,

It’s How you Do the job.” 

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(All copyrights used by the author S.Susheela)