Mechanics of Mediation - Literature Collection

[Cyrellys]

This thread is for the literature pertaining to the practical side of practicing Mediation or the business of Mediation....

Some of the documents within were written with traditional mediation & traditional mediation businesses/practitioners in mind. However, even though Exopolitics and the form of mediation that is encompassed, is atypical, there is still much to be learned from traditional mediation and the valuable experience held by the traditional field.

[Cyrellys]

Building a Successful Mediation Practice

by James Melamed

August 1998

www.mediate.com/articles/building.cfm

The purpose of this article is to provide some suggestions with regard to building a successful mediation practice from a business perspective.
Be Realistic

The odds are that you will not be an overnight mediation sensation, although such cases are reported. Ultimately, clients will come to you because of your well-earned reputation. This reputation will likely be earned in part by your professional efforts prior to becoming a mediator and in part by the reputation you develop as a mediator. Most commonly, for those who are committed to the development, it will take between one and two years to firmly establish a mediation practice and to be able to make a reasonable living.

While one can argue that you will develop yourself as a successful mediator most quickly by devoting yourself full-time, a more moderate and sustaining approach may be to "keep your day job" and complement those efforts by developing a mediation practice as an augmentation of your other professional work. Perhaps the ideal would be to work half-time or so in your traditional professional work, preserving about half-time for your mediation business development.

Plan

You are wise to plan your mediation business development, including, ideally, a strategic plan, financial plan and marketing plan. There will be plenty of opportunity to be insecure as you develop your mediation business and, during such times of insecurity, it is nice to be able to look back on a well-thought through plans.

One of the nice things about mediation is that the business can be run on a relatively low overhead. For example, it is not unusual to utilize a home office as a practice base. You will need to arrange for quality meeting environments. These can often be secured at low or no cost. Minimally, the mediator will need a computer with quality word processing capacity, a quality printer, a flip chart and, increasingly, a modem connection to the internet.

Getting Started

I often suggest to developing mediators that they print their stationery and cards early and begin distributing them because it is unlikely that they will get a first quality case for six months and they had might as well get the time clock moving. There is some truth to this. It will take some measure of time to spread the word as to your existence as a capable and available mediator.

Perhaps the first thing to do as a developing mediator is to develop a good understanding of the surrounding mediation community, including any state and local associations and standards. One will want to be sure to identify any generally accepted qualifications requirements, for example training and experience requirements that might exist to receive mediation cases by referral from the court, administrative agencies and other public entities. It would also be a good idea to look in the yellow pages to understand the apparent number of practicing mediators and how they are representing themselves. It would be wise to interview established mediators as to their impressions for the best way to develop oneself within a particular community.

Niche, Niche, Niche

It would be a mistake for a developing mediator to market themselves as a "mediator for all occasions." The reason for this is practical, not necessarily philosophical. Even if mediators might generally be able to capably assist in a wide area of disputes, which is likely true, the reality is that, to successfully market one's mediation services, the mediator needs to develop a limited number of marketing targets. It will benefit you to come to be viewed as somewhat of a specialist. It is impossible to market to every one (although the internet may change this). Even if one could market to everyone, the American professional mentality is one of going to specialists. If one wants to be a divorce mediator, you should market your self exactly as that, and not a general mediator.

It is recommended that the developing mediator identify somewhere between two and four primary areas of practice development. It is then suggested that one of two approaches then be taken:

(1) The developing mediator pour a relatively small amount of resources and energy equally into each of the identified niche areas of practice and measure the relative response rate of the preferred niches (presumably next focusing marketing efforts on the most responsive niche).

(2) The developing mediator focus their practice development efforts on their first preferred niche, with a goal of creating this most favored work area, only moving on to secondary niche areas of practice as time permits and financial needs require.

What Does One Do Following the Identification of One's Niches

It is critical that you seek to inform as many decision-makers and opinion leaders as possible within your chosen niche(es) if you are to become successful as a mediator. You want to establish in these people's minds that you are a mediator; that you are available; and that you are capable and committed to practicing in the situations they encounter.

Get on the Internet

I am amazed at how quickly the internet is coming to complement mediators' work. Emailing and electronic forums are becoming a preferred medium for many mediating groups to communicate. One of the advantages of so working with mediation participants is that, following the mediation intervention, participants, if they desire, can continue so effectively communicating in the established effective way. There is no doubt that mediators will increasingly utilize the internet as an electronic extension of their office, commonly continuing participant discussions between meetings, including on-line facilitation, and, in due time, audio and video capability, which will ultimately create an on-going "asynchronous" meeting environment.

In terms of promoting oneself, the internet is also rapidly becoming the new electronic yellow pages. One would be wise to carefully select an internet mail address that conveys one's commitment to mediation and also consider the development of a quality web-site. In these regards, it is recommended that developing mediators consult with www.mediate.com on the world wide web and register in their "Locate A Mediator" database. Quality websites are now available for as little as $200/year!

Do a First Class Mailing

Notwithstanding the tremendous development of the internet, it still will likely make sense for the developing mediator to send out somewhere between five hundred and five thousand "first class" mailings. The "first class" refers both to the postal rate and the quality of the contents. It is first recommended that the mediator invest in good looking stationery, on a heavy weight paper, preferably custom designed and, quite possibly, with two or three colors. To a meaningful degree, the mediator's greatest resource for marketing their business is quality letterhead.

In terms of what should be enclosed in this mailing, clearly a short cover letter, with perhaps two or three paragraphs, briefly introducing oneself is a good idea. One should also enclose a more substantial piece of client information or a brochure (either personally developed or from a national organization) is a good idea. Finally, it is recommended that the mediator provide some opportunity for participants to easily identify themselves as a person interested in receiving continuing information about mediation.

For example, the mediator might include a postcard return for those who would like to stay, at no cost, on the mediator's mailing list. Or, the mediator might include a postcard return for those who would like to attend a free professional seminar. Or, the mediator might include a questionnaire for other professionals who would complete the questionnaire so as to be in the mediator's referral book. Essentially, any technique that is able to identify those within the broad mailing group who are most interested in mediation will pay rich dividends down the line.

Perhaps the best target marketing group for mediators would be barbers and beauticians! While I say this, obviously, somewhat tongue-in-cheek, there is truth in the concept of marketing to those members of our society who learn early about the existence of a conflict. For example, one may want to consider marketing to the clergy, therapists, accountants and others who hear early (perhaps even before attorneys) of disputes.

One also wants to make one's services known to the relevant sections of the state bar organization, but do not expect lots of referrals from attorneys, many of whom still understandably view mediation as "loss of business." Still, it is wise to provide quality information to many members of the bar, knowing that one will very likely someday have a mediation with that attorney or a client will ask the attorney if they know of a certain mediator (you). Personnel and human resource professionals, school counselors, ombudspeople and all kinds of governmental agencies may be contacted to inform them of your services.

Work with your Responders

Those twenty to one hundred people who show responsiveness to your marketing efforts should be labeled "responders" or "cream of the crop" or the like. Once such a responsive group has been established, it can be further developed by a follow-up mailing and/or phone call, quite possibly even inviting the responder to lunch.

Make Lunch-time Presentations

It is also recommended that you make yourself available to the various community groups including Rotarians, Lions, Kiwanis, Parents without Partners, environmental groups, business groups and the like, to see if they have any interest in sponsoring you to make a twenty or so minute presentation at one of their up-coming luncheons. When one makes such a presentation, it is recommended that you focus upon the essentials, for example comparing negotiation, mediation and arbitration; helping people to understand how mediators assist participants to move from positions to interests; and explaining the interface between mediation and lawyers and the law. It is also recommended that some short exercise, video or demonstration be utilized as a discussion centering device.

Display Advertising

I recommend against your running a full page ad in the New York Times. On the other hand, you may want to consider a two or three inch small ad that would run weekly or so for ten to twenty weeks in a newspaper of local distribution. The mediator wants to spread their subliminal presence out over time. Many newspapers have "business builder" rates for small ads running on a weekly basis. Note that in this ad, if you have a quality web-site, you would want to feature that web-site address.

The Yellow Pages

While one almost certainly wants to be in the yellow pages as a convenience to clients and potential clients, it is recommended against investing substantial amounts in yellow page ads. Through the Yellow Pages, one mostly gets "shoppers." It is wise, however, to simply include a line or two to establish credibility and to identify your niche areas of practice. Again, it is recommended that you include your email and website address right in the Yellow Pages.

The Splash Effect

One of the more impressive and effective marketing efforts that I have heard of was by a colleague, Chip Rose, of Santa Cruz, California, who recorded a fifteen minute description of mediation and his services and sent that audio tape to all of the mental health professionals in Santa Cruz County. Chip had a very nice label on the tape promoting his practice and, essentially serving as a large plastic card. It is doubtful that many people (immediately) threw those cassettes away (I still have mine). They are a steady visual reminder of Chip's practice, in addition to the quality audio content. With traffic ever worsening and audio duplication costs very reasonable, the audio medium for spreading information about your work is worth considering. Other techniques along these lines might include refrigerator magnets, post-it notes printed with your name address and phone, and the like. You definitely want to get the word out. No one will be bringing you your mediation business on a silver platter.

Setting Fees

Mediators differ in how they set fees. Some mediators have participants pay as they go. Others request a deposit to be applied against earned fees. In any case, it is highly recommended that fee agreements be clarified in a signed writing. It is desirable that mediator fees bear upon participants and encourage them to make progress. The temptation maybe to reduce your fees as a budding mediator, yet you will quickly realize that you will be working much harder as a mediator than in virtually any other professional capacity and that these fees are very much earned. Further, remember that you will have at least two and often more participants paying the mediation fee. This being said, mediators' fees range from free (volunteer programs) to a "bottom" rate of $50 an hour or so all the way up to $400 per hour. Obviously, you will increase your fees with your success. In the short term, however, it is recommended that you do not under sell yourself. People generally expect to get what they pay for. If you under price yourself, they will wonder why you are working for so little and may actually come to question your competency on this basis!

In Sum

While noble work, mediation is also, at least for the private practitioner, a business. Unless one can make a reasonable profit, one will not be practicing as a mediator for very long. There are exceptions, for example those who do not really need money and are able to volunteer on an unlimited basis at community mediation programs and the like. However, for the rest of us, being able to get a successful mediation practice going as a target that can only exist for a limited amount of time. My hope is that the suggestions in this article are helpful in thinking not only about how you will start offering quality mediation services, but also in terms of how you will continue being able to afford to offer those services.



Biography

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Jim Melamed co-founded Resourceful Internet Solutions (RIS) and Mediate.com in 1996. Before this, Jim founded The Mediation Center in Eugene, Oregon in 1983 and served as Executive Director of the national Academy of Family Mediators from 1987 to 1993.

Jim is past-Chair of the Oregon Dispute Resolution Commission and a member of the Oregon State Bar. Jim teaches Mediation at the Pepperdine University School of Law's Straus Institute for Dispute Resolution.

Jim was the first President and Executive Director of the Oregon Mediation Association (1985) and received the OMA's 2003 Award for Excellence.

Jim Received the Oregon State Bar Dispute Resolution Section's 2006 Sidney Lezak Award of Excellence and the 2007 John Haynes Distinguished Mediator Award from the Association for Conflict Resolution.

Jim's undergraduate degree is in in psychology, with honors, from Stanford University and his law degree is from the University of Oregon.

[Cyrellys]

www.irmi.com/expert/articles/2008....-mediation.aspx

Expert Commentary
Evaluative Mediation Techniques Help Achieve Success

June 2008

A March 2008 report of the American Bar Association's Task Force on Improving the Quality of Mediation confirms what is obvious to all who participate in commercial mediation: There is "overwhelming support" for the conclusion that lawyers want mediators to provide "analytical input," or, as we more commonly call it, "evaluative mediation." The marketplace has spoken.

by Jeff Kichaven
JAMS

The Task Force's conclusion allows litigators and mediators to enter into a new discussion about how all parties can work together to serve clients better. We no longer have to beat the dead horse of the debate between "evaluative" and "facilitative" mediation. In commercial cases, both evaluative and facilitative techniques are necessary for mediations to succeed. The new discussion can probe different aspects of "evaluative mediation" more deeply, understand them more thoroughly, and use them more intelligently.
Evaluative Mediation Questions

"Evaluative mediation" is not one-size-fits-all. There are many ways a mediator can analyze and evaluate a case. The litigator's responsibility includes distinguishing between those ways and using the resource of the mediator in the ways that best serve her client's interest. Here are some practical questions for litigators to consider—and discuss in advance with their mediators—so that mediators' analytic and evaluative techniques can work as well as possible in any given case.
Is the Mediator's Evaluation Welcome?

While the answer is generally "Yes," sometimes it will be "No." In some cases, the mediator's evaluations will be needed only by the other side and not by you (thoughthere is generally some benefit to the mediator sharing some analysis or input with each party). If you don't want the mediator's analysis or evaluation, please tell the mediator in advance. But be warned, it's hard for mediators to refrain from evaluation entirely. Through tone of voice, facial expressions, word choice, and otherwise, you will get some impression of what the mediator thinks of your case.
When Is the Mediator's Evaluation Welcome?

Timing is everything. A common mistake among newer mediators is to lay on too much evaluation too early. Remember, most experienced mediators would list "evaluation" among "techniques for breaking impasse." It generally takes some time at a mediation for an impasse to reach the point where "evaluative techniques" become appropriate. Distinguishing that point can be difficult, and you know your clients' temperaments best. So, litigators, if the time for evaluation seems ripe to you, please say so if the mediator doesn't raise it first.
What Form Should the Evaluation Take?

A mediator's evaluations can take as many forms as there are stars in the heavens. The Task Force's report lists some of the most common:

* Ask pointed questions that raise issues or imply answers.
* Give an analysis of the case, including strengths and weaknesses.
* Make predictions about likely court results.
* Suggest possible resolutions or specific settlements.
* Apply some pressure.

Most experienced mediators are adept at all of these techniques, and more. Are some likely to be particularly effective with your client? How much pressure do you want the mediator to exert? Again, litigators know their clients best. If they share their insights with the mediator in advance, the mediator is more likely to perform in a way that helps all involved.
Should the Mediator's Analysis Be a Negative Evaluation?

The conventional wisdom about "evaluative mediation" has long been that litigators want mediators to tell the other side that they have a weak case. Sometimes, that is indeed the request, but, at least as often, litigators want mediators to help break bad news to their own clients. If that is the assistance needed, it helps to tell the mediator in advance, to share what hasn't worked so far, and also to share, in the litigator's best judgment, what is likely to work at the mediation.
Should the Mediator's Analysis Be a Positive Evaluation?

Another piece of conventional wisdom about "evaluative mediation" is that mediators just tell everyone involved that they have a weak case. This is not how experienced mediators practice. And, it's a bad reputation for a mediator to have. If a mediator reflexively demeans people's cases, the mediator will do her thing, leave the room, and then have a lawyer turn to his client and say, "She tells that to everybody. Don't believe her." Rather, it can be refreshingly liberating to hear a mediator say, "You know, there are no guarantees in life, but you have a pretty good case. I think you're likely to win. Now, are there some reasons you might want to consider settlement anyway?"
What If the Mediator's Analysis Differs from the Litigator's?

At times, a mediator will analyze and evaluate a case differently than the litigators involved. The mediator might have a blind spot—or the participants might. In any event, both benefit if the mediator knows in advance how the litigators would like the mediator to handle this possibility. There are many ways for a mediator to bring these differences to the attention of the litigators, and they probably have enough self-awareness to know the ways that will work best. If the mediator knows the preferences in advance, the process of evaluation at the mediation will go much more smoothly.
Evaluative Mediation during the Bargaining Phase

This checklist deals with a mediator's evaluations of the strengths and weaknesses of legal claims and defenses—the most common evaluations that mediators provide. There may be many other things that mediators are asked to evaluate as well, and one deserves special mention.

During the bargaining phase of a mediation, a mediator can help litigators evaluate how other parties are likely to respond to an offer or demand. The principal purpose of contemplated offers or demands (defendants make offers, plaintiffs make demands) is to generate a next demand or offer in response. Yet, some of the worst deer-in-the-headlights looks during mediations come when a mediator is asked to convey a proposed offer or demand, and then asks that counsel,"How do you think the other side will respond?"

In at least three ways, a mediator can help litigators evaluate whether a contemplated move is likely to generate the desired response. First, the mediator can share her own opinion. Second, the mediator can caucus with the other parties, ask how they would likely respond to a contemplated offer or demand, and report back, with the permission of those other parties. Third, the mediator can facilitate a meeting between opposing counsel, generally without clients, so that litigators can obtain and assess the information for themselves. All of these techniques can help prevent a contemplated move from provoking the other parties to leave the mediation, or otherwise backfiring.
Proper Preparation Is Key

None of these evaluations, though, can happen without proper preparation. Three steps are critical.

First, there needs to be communication between litigators and mediators regarding the expected evaluations. Ideally, counsel and the mediator will be able to discuss these issues on the telephone before the mediation. Mediators serve counsel better when they know in advance exactly what is expected and have the benefit of the parties' thoughts as to what is likely to work! If the conversation can't take place before the mediation, there will likely be opportunities for counsel and the mediator to huddle privately during the mediation day to make sure that the process is on track.

Second, to enable private meetings between counsel and the mediator to take place, your clients need to understand that there may chunks of the mediation in which they will not take part. In a healthy lawyer-client relationship, clients trusts their lawyers enough to overcome any misgivings about being excluded from part of the process. Sometimes, the explanation is that, to get the other lawyer away from her "difficult" client for more productive conversations with the mediator, symmetry requires that your client be excluded for a short time as well. The keys are that the client not be taken by surprise, and understands that these conversations are a normal part of the process.

Finally, evaluation generally begins best with each litigator's opening statement in a joint session. When counsel puts its best foot forward, the mediator can then take what the litigators have said into caucus with the other side and drive these points home without appearing to argue. For example, a mediator may say in caucus, "The other lawyer just made some interesting points in support of her position, and we need to talk about them. What do you think of Argument X?" Conversation, rather than argument, is likely to follow, and these points will likely be taken seriously.

By contrast, if there have been no opening statements, the mediator has a harder time putting those words into the mouths of the litigators. She is more likely to express evaluations as her own opinions: "I think the other side makes some interesting points in support of its position, and we need to talk about them. What do you think of Argument X?" This frames what comes next as a debate of the mediator's opinions rather than a discussion of the points of the case. Progress requires concessions to the mediator, and nobody likes to concede anything in a debate.
Conclusion

Litigators benefit when they make it easier for mediators to do their job. Advance consideration of the issues related to "evaluative mediation" and preparation to meet those issues will result in better performance by mediators, more settlements, and greater client satisfaction.

[Cyrellys]

www.longwood.edu/studentunion/Documents/Phases%20of%20Mediation2.doc

Phases of Mediation

[Cyrellys]

www.creducation.org/resources/Mediation_Stages.ppt#256,1,Phases of Mediation

Phases of Mediation - Powerpoint Presentation

[Cyrellys]

www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005560403

Learn to Master the Art of Mediation
Trey Bergman
02-27-2008

Since mediation is nothing more than a structured negotiation, the more lawyers understand the art of negotiation, the better equipped they will be to achieve the best results in mediation.

Negotiation is a fact of life. Attorneys do it every day with their staff, spouses, children and colleagues. However, while most lawyers feel that they are excellent negotiators, some actually are poor negotiators, because they take the wrong approach to the negotiation process. They only want to win.

The real way to win at mediation is through interest-based negotiation and a mutual working out of a solution to a shared problem. There's a better way to negotiate, where the parties no longer argue over positions but instead focus on interests and creating options for mutual gain.

Competitive versus cooperative negotiation style. Effective negotiators are cooperative in mediation, not competitive. Trying to win a mediation is like trying to win a marriage. Thinking that way will lose sight of the bigger and more important picture concerning how the parties deal with each other and their shared and differing interests. When the parties approach mediation as a cooperative and mutual problem-solving opportunity, the results will more likely be a win-win outcome.

Win-win negotiations. The key to a successful mediation is building a relationship and trust. Start by doing that with demeanor. A cooperative demeanor promotes discussion to learn and acknowledge each side's needs. Always learn all of the other side's needs before beginning the actual bargaining of the mediation.

During the discussion and case-analysis phase of the mediation avoid the temptation to bargain. Instead, listen attentively to the other side to identify areas of mutual gain and shared interest. Consider whether any nonmonetary options are valuable and how to enlarge the pie of possibilities rather than dividing it up. Remember, mediation is a communication process. Remember too that win-win does not necessarily mean an equal win.

Phases of mediation. Four phases should be followed in every mediation: preparation, discussion, proposal and bargain.

• Preparation: To be well prepared the attorney and client should concentrate on the following four elements:


Determine the interests of all parties to the mediation.


Determine as many pieces to as many agreements as possible.


Determine all alternatives to negotiating an agreement and what the client is willing to take at the end of the mediation.


Determine what external standards can be used to judge what is fair for the client and can be used to persuade others that everyone is being treated fairly.

• Discussion: Do not miss the opportunity to make an opening statement in the joint session of a mediation. An opening statement would not be waived at trial, so why waive it at mediation? The key to successful negotiations is building rapport through communication, relationship and trust by giving each side an opportunity to identify interests, needs and wants. This is not the time to start talking terms and numbers. The rationale behind the numbers always counts more than the actual numbers.

• Proposal: All discussions are still hypothetical during this phase, but both parties are starting to explore options, send signals and make tentative proposals. These proposals take the form of "if then," such as, "If I do this for you, then could you do that for me?"

• Bargain: The actual negotiation of terms and numbers takes place during this phase. Based on what is learned in the preparation stage, what is learned in the discussion phase and the tentative offers made in the proposal stage, the bargain stage is where actual firm offers are exchanged. Following the previous three phases makes working out the terms and numbers a mere formality.

NEGOTIATION NO-NO's

Now that the attorney and client have learned what to do to be successful negotiators, they also need to learn what not to do.

Do not possess partisan perceptions. The attitude of "I am right, they are wrong" will never allow a mediation to achieve a successful result. Try to view the situation from the other side's perspective.

Do not lower your aspirations. Always go into a mediation with the highest view of what can reasonably be expected to be accomplished. No offer is too high provided it is supported by valid justification showing that it fairly meets the underlying needs of all parties.

Do not make unreasonable opening demands or offers. The quickest way to lose all credibility is to make a demand or an offer that is not supported with legitimate and credible criteria. Always view any demand or offer from the other side's perspective. Just because one party views it as reasonable does not mean the other side will. Remember, the other side's perception is their reality.

Do not underestimate your case: Always know the best alternative to a negotiated agreement (BATNA) before going into mediation. That way, there will be a reference point by which to judge the client's progress and positions at all times. Conduct a risk analysis of the client's case by examining all of the client's weaknesses.

Do not underestimate the other side's case. Always calculate what the other side wants to achieve in mediation and be prepared to discuss this. Calculate the other side's BATNA as well. Conduct a risk analysis by looking at the strengths of the other side's case.

Do not give something up without getting something in return. Always make sure that there is a concession received in exchange for every concession given. These concessions do not necessarily have to be equal in value. Whenever possible, trade what is cheap to you for something valuable to the other side.

Trey Bergman, president of Bergman ADR Group in Houston, is national president of the Association of Attorney Mediators. Since 2002, he has been an adjunct faculty member at South Texas College of Law, teaching courses in mediation and negotiation. He is board certified in civil trial law by the Texas Board of Legal Specialization. His e-mail address is [e-mail].

[Cyrellys]

This one is written in a scholarly style.....it's a pdf and one of the most unique aspects of it is that it gives lists of tools appropriate or useful for the phases of mediation.

www.tfgordon.de/publications/Gordon2001a.pdf

Mediation Systems
Tom Gordonß, Oliver Märker™

Abstract
Considering the roles and tasks ("use cases") in a standard mediation procedure, we
identified many possible applications of existing software tools to support the mediation
process. Several core components supporting a wide range of mediation tasks were
found. The paper attempts to define mediation systems and distinguish them from more
general purpose groupware.

[Cyrellys]

This one is a link to a preview. However almost the entire book is included in the preview....over 300+ pages. It's an insightful one if you consider the differences between Abductees and Historic Contact Paradigm involving the Greys is a Victim/Offender situation.

books.google.com/books?id=-I2Kvz7fi2YC&pg=PA35&lpg=PA35&dq=phases+of+mediation&source=bl&ots=hadgfYA91V&sig=sGdmWSuxF4SXT3W3yffrvNxfRDg&hl=en&ei=_9cSSrvBFcyYtgeLtt2WBA&sa=X&oi=book_result&ct=result

The handbook of victim offender mediation
By Mark S. Umbreit, Center for Restorative Justice & Peacemaking

[Cyrellys]

www.mediate.com/articles/zumeta.cfm

Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation

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by Zena Zumeta

September 2000


Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.

Facilitative Mediation
In the 1960's and 1970's, there was only one type of mediation being taught and practiced, which is now being called "Facilitative Mediation". In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties' points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.

Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present so that the parties can hear each other's points of view, but hold caucuses regularly. They want the parties to have the major influence on decisions made, rather than the parties’ attorneys.

Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the volunteer mediators were not required to have substantive expertise concerning the area of the dispute, and in which most often there were no attorneys present. The volunteer mediators came from all backgrounds. These things are still true today, but in addition many professional mediators, with and without substantive expertise, also practice facilitative mediation.

Evaluative Mediation
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness. Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process, and directly influences the outcome of mediation.

Evaluative mediation emerged in court-mandated or court-referred mediation. Attorneys normally work with the court to choose the mediator, and are active participants in the mediation. The parties are most often present in the mediation, but the mediator may meet with the attorneys alone as well as with the parties and their attorneys. There is an assumption in evaluative mediation that the mediator has substantive expertise or legal expertise in the substantive area of the dispute. Because of the connection between evaluative mediation and the courts, and because of their comfort level with settlement conferences, most evaluative mediators are attorneys.

Transformative Mediation
Transformative mediation is the newest concept of the three, named by Folger and Bush in their book THE PROMISE OF MEDIATION in 1994. Transformative mediation is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties' needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other "recognition".

In some ways, the values of transformative mediation mirror those of early facilitative mediation, in its interest in empowering parties and transformation. Early facilitative mediators fully expected to transform society with these pro-peace techniques. And they did. Modern transformative mediators want to continue that process by allowing and supporting the parties in mediation to determine the direction of their own process. In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.

Pros and Cons
Supporters say that facilitative and transformative mediation empower parties, and help the parties take responsibility for their own disputes and the resolution of the disputes. Detractors say that facilitative and transformative mediation takes too long, and too often ends without agreement. They worry that outcomes can be contrary to standards of fairness and that mediators in these approaches cannot protect the weaker party.

Supporters of transformative mediation say that facilitative and evaluative mediators put too much pressure on clients to reach a resolution. They believe that the clients should decide whether they really want a resolution, not the mediator.

Supporters of evaluative mediation say that clients want an answer if they can’t reach agreement, and they want to know that their answer is fair. They point to ever-increasing numbers of clients for evaluative mediation to show that the market supports this type of mediation more than others. Detractors of evaluative mediation say that its popularity is due to the myopia of attorneys who choose evaluative mediation because they are familiar with the process. They believe that the clients would not choose evaluative mediation if given enough information to make a choice. They also worry that the evaluative mediator may not be correct in his or her evaluation of the case.

Strong Feelings
Mediators tend to feel strongly about these styles of mediation. Most mediation training still teaches the facilitative approach, although some attorney-mediators train in the evaluative model, and Folger and Bush have a complement of trainers teaching the transformative approach. Many mediation standards (from national and state mediation organizations, and state legislative and judicial mediation programs) are silent on this issue; others prohibit evaluation, and a few require it. For example, the Mediation Council of Illinois Standard IV (C) Best Interests of Children states: "While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent.......If the mediator believes that any proposed agreement does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis."

Another example of these strong feelings is that in 1997, Florida’s professional standards for mediators were reviewed, and the committee got stuck on the issue of evaluation in mediation. The current rule says "a mediator should not offer information that a mediator is not qualified to provide" (Rule 10.090(a)) and "a mediator should not offer an opinion as to how the court in which the case has been filed will resolve the dispute" (Rule 10.090(d)). The committee came out with two options for a new standard on this issue: Option One would prohibit giving opinions except to point out possible outcomes of the case; Option Two states that the mediator could provide information and advice the mediator is qualified to provide, as long as the mediator does not violate mediator impartiality or the self-determination of the parties. After receiving comments on these two options, both were withdrawn and the committee is trying again. The comments were many and strong. Early in 2000, the new rule was written to reflect Option Two.

In a new Michigan Court Rule effective August 1,2000, which authorizes judges to order cases to mediation, the Supreme Court of Michigan differentiated facilitative processes from evaluative processes. The rule states that courts may order parties to facilitative processes, but not to evaluative processes.

Concerns
There seem to be more concerns about evaluative and transformative mediation than facilitative mediation. Facilitative mediation seems acceptable to almost everyone, although some find it less useful or more time consuming. However, much criticism has been leveled against evaluative mediation as being coercive, top-down, heavy-handed and not impartial. Transformative mediation is criticized for being too idealistic, not focused enough, and not useful for business or court matters. Evaluative and transformative mediators, of course, would challenge these characterizations. Sam Imperati, for example, sees evaluative mediation as ranging from soft to hard: from raising options, to playing devil's advocate, to raising legal issues or defenses, to offering opinions or advice on outcomes. He therefore believes that it is not appropriate to assume that evaluative mediation is necessarily heavy-handed. Folger and Bush, on the other side of the discussion, see transformative mediation as ultimately flexible and suited to all types of disputes.

Another concern is that many attorneys and clients do not know what they may get when they end up in a mediator’s office. Some people feel that mediators ought to disclose prior to clients appearing in their offices, or at least prior to their committing to mediation, which style or styles they use. Other mediators want the flexibility to decide which approach to use once they understand the needs of the particular case.

Styles vs. Continuum
Samuel Imperati and Leonard Riskin believe these styles are more a continuum than distinct differences, from least interventionist to most interventionist. The Northwest Chapter SPIDR Survey and other less formal surveys have noted that most mediators use some facilitative and some evaluative techniques, based on individual skills and predilections and the needs of a particular case. Folger and Bush see more distinct differences in styles, particularly the difference of "top-down" vs. "bottom-up" mediation. That is, they believe that evaluative and facilitative mediation may take legal information too seriously, and that resolutions coming from the parties are much more deep, lasting, and valuable. However, in informal discussions, many practitioners who utilize the transformative model state that they mix facilitative and transformative techniques rather than using one or the other exclusively. It would seem that in general mediators are on a continuum from transformative to facilitative to evaluative mediation, but are not squarely within one camp or another.

Conclusions
There is room in mediation practice for many styles, including facilitative, evaluative and transformative mediation. Each has its usefulness and its place in the pantheon of dispute resolution processes. Imperati believes that most mediators use a combination of these styles, depending on the case and the parties in mediation, as well as their own main approach to mediation. Some sophisticated mediators advise clients and attorneys about the style they think would be most effective for their case. Some parties and attorneys are sophisticated enough to know the difference between types of mediation and to ask mediators for a specific type in a specific case. It appears that it would be helpful for mediators at the very least, to articulate to parties and attorneys the style(s) they generally use, and the assumptions and values these styles are based on. This will allow clients to be better and more satisfied consumers, and the field of mediation to be clearer on what it is offering. It can only enhance the credibility and usefulness of mediation.

Bibliography

Leonard L. Riskin, Mediator Orientations, Strategies, and Techniques, ALTERNATIVES TO THE HIGH COST OF LITIGATION 111 (1994).

Samuel J. Imperati, Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation, 706 WILLAMETTE LAW REVIEW 33:3, Summer 1997.

Robert A. Baruch Bush and Joseph P. Folger, THE PROMISE OF MEDIATION, Jossey-Bass, 1994.

William L. Ury, Jeanne M. Brett and Stephen B. Goldberg, GETTING DISPUTES RESOLVED, Jossey-Bass, 1988.

Association of Family and Conciliation Courts/Academy of Family Mediators Standards of Practice.

Joint Committee Standards of Practice (American Arbitration Association, SPIDR and ABA).

Mediation Council of Illinois Standards of Practice.

State of Florida Standards of Practice for Mediators.

State of Michigan Court Rule 3.216 on Domestic Relations Mediation, 8/1/00 changes.

Reprinted with permission from the National Association for Community Mediation:
1527 New Hampshire Avenue NW
Washington, DC 20036
Phone: [phone] x212
Fax: [phone]
Web Site:


Biography

--------------------------------------------------------------------------------



Zena D. Zumeta is president of the Mediation Training & Consultation Institute and The Collaborative Workplace. She received her Juris Doctor from the University of Michigan Law School. Ms. Zumeta is a former board member and president of the Academy of Family Mediators, (now merged into the Association for Conflict Resolution) past president of the Michigan Council for Family and Divorce Mediation, and past Regional Vice President of the Society of Professionals in Dispute Resolution. She is currently a member of the Advisory Council for the Family Section of the Association for Conflict Resolution.

Ms. Zumeta has extensive experience as a trainer, mediator, facilitator and consultant. She has been providing mediation services since 1981 and mediation training since 1984. She is an approved civil and family mediator in Michigan, and an approved mediation trainer for Michigan, Ohio, Tennessee, Georgia and other states.

[Cyrellys]

compassmorainn.blogspot.com/2009/05/mediator-neutrality-applied-in.html

Mediator Neutrality Applied in Exopolitical Mediation
by Cyrellys Geibhendach
Friday, May 15, 2009

In traditional Mediation, mediator neutrality is the action of the mediator to remain neutral which means to not issue or imply judgment. A mediator seeks understanding rather than development of an opinion which results in judgment. This ability to be and remain neutral is incredibly important for success in traditional mediation. Rachel Fishman Green, Esq., describes the benefits of neutrality in the following way, “If I really understand how you are feeling, what this experience has done to you, what this means for you, the challenges that you are facing as you try to restructure your life – then I can help (others) understand these things. And I can also make sure that (what) we put together takes care of you and your needs.”

The same is applicable to Exopolitical Mediation. The participant or group and the inter-lying public which the Exopolitical Mediator works with has needs, hopes, and expectations just as participants in traditional mediation do. The human equation is no different in this respect and does indeed demand a voice to be heard and received seriously. The act of experiencing mediation is very powerful and can facilitate not only understanding but also changes to peoples goals and outlooks. This lays a tremendous burden of responsibility upon the Mediator to maintain a position of holistic caring service which is created when a mediator maintains neutrality.

Every individual experiences life from a perspective. That perspective will be a consequence of their knowledge, their experiences, their health, and their maturity. No other person is more appropriate to speak about their lives or their needs than themselves. In the Contact Paradigm the ability to communicate and be treated with dignity and respect is severely hampered by many layers of confusion, fears, illegitimate ridicule, inadequate knowledge and experience as well as the human tendency to compete or dominate. Mediation gives the opportunity for all voices to approach the human collective consciousness and be heard fairly in our reality.

An Exopolitical Mediator in remaining neutral does not judge and does their best to listen to everything that a participant or group has to say. The Mediator will ask questions to garner the best understanding of the information that he/she can. And the Mediator will assist in brainstorming to figure out how best to achieve a person's or group's needs. An Exopolitical Mediator will use all of the tools at their disposal to make sure that each party involved in the mediation HEARS the other.

One of the valuable skills a Mediator can apply is evaluating the communication of a participant to encourage improvements or additions which help prevent miscommunication. In Exopolitics the distance between the participant and the public audience, if that is the end recipient or alternate party in the mediation, can issue misconceptions or misconstrue the information or intents involved. The Mediator works to alleviate this known difficulty through experience & scope of paradigm awareness. Here again mediator neutrality comes into play, allowing the Mediator great flexibility of perception themselves.

A neutral mediator helps to improve communication by helping all parties or participants involved to understand where the other(s) are coming from. No party involved has to agree with the other(s) but it helps to understand why you disagree or where or why differences exist.

Mediators often feel great empathy for the participants. They not only perceive needs but they also perceive the emotions, challenges, and strength of personal investment involved in the participant's experiences, information, and existential position. The Mediator's job is to utilize this depth of their own perception to help all parties increase their understanding of each other and then to facilitate the best way for them to communicate or interact effectively. His or her greatest challenge is to understand everyone involved.

And the ultimate goal is the honest and honorable exchange of Truth.

[Cyrellys]

compassmorainn.blogspot.com/2009/05/regarding-control-influence-excellence.html

Regarding Control, Influence, & Excellence; Pertinent Information for Exopolitical Mediators
by Cyrellys Geibhendach
Friday, May 15, 2009

I am going to wax more philosophical for a moment to deep the external and personal context within which Exopolitical Mediators operate. This examines the effect of human control and human influence and their contributional values. So to does it delve into the philosophy of the pursuit of excellence and how the concepts of control and influence are regarded.

Our control in this life, I think is limited in many ways but our Influence is not. If we continue on a chosen ethical path then we will remain limited in our control for quite sometime in many respects, because the honoring of Free Will is a part of being ethical. But as we, the human race, progress in our existential explorations we will come to realize that the long-term benefits of ethical choices gives us exponential leaps in Influence. We cannot force anyone human or otherwise to believe or fully understand something....but we can Influence them to be self-empowered to progress in their own way.

As our Influential ability grows it reverberates throughout our own people bringing a potential toward briliance of self...this is the positive outcome of chosing ethical paths...it far outweighs and out-distances any usefulness of control. One day such a chosen path and skill of Influence could extend to create ourselves into an Influential Example for other races who may at that point be asking many of the same questions we ask about ourselves and extra-terrestrial races today....but we have to invest in our own self improvement first...this process of experiencing, learning and sharing is part of respecting Excellence in Life.

Why do some humans have a negative view of the world and everything which goes with it? Where does this dispondency come from? I think that is because humanity's moments of weakness have encompassed some individuals and groups more than others....their negative views are a consequence of the Human Race's areas of self neglect and therefore are self inflicted...as well as being a self-perpetuating consequence on an individual level once it has occured thus becoming a vicious cycle. Can this be changed? Certainly. But like anything worth doing it takes sometimes a great deal of effort and consistency.

I don't believe humans are more negative than positive....it think the perception of that is based solely on personal experience and just as dandilions will group in various and particular areas of a yard, so too does positive and negative natures...sometimes it is luck of the draw as to what we routinely encounter...sometimes it is an innate human need to address deep personal or spiritual issues and then work through them which brings us in contact once or repetatively with negativity. We don't yet conceptualize this clearly and firmly where we may then teach it to the next generations in order that they might better understand or percieve what themes they are involved in or why they manifest around or within our individual life circle.

This matter of what we teach of our Knowledge to the future generations and even the current ones is very much a subject of concern to the Exopolitical Mediator....from my own perspective and history, my ancestors both ancient and recent have always regarded Knowledge as sacred. So too is the possession of it a sacred trust. This sacred trust doesn't mean that Knowledge was intended to be kept sequestered among the priviledged few. It was once regarded that the Knowledge of our Race was a trust given to us by the "Gods" or "Ancients" and that to fail to teach it or pass it from generation to generation was a severe crime. There are three kinds of Knowledge: the Nature of each thing, the Cause of each thing, and the Influence of each thing. To seek to aquire knowledge of all things which is in its pure form, the effort to Understand, is a great part of respecting and pursuing Excellence. The other part of that is sharing the knowledge and wisdom earned.

Maturity comes from within...it is the assimilation of knowledge and its practical, ethical application by a person practicing Virtue and then its evolution and manifestation as Wisdom. To practice Virtue is to honor the rule of law, to be honest, and to be proud. Pride in this context is not an ill expressed behavior of dominance, instead it is both a depth of understanding of self worth, and also a confidence in self, which is then expressed in honorable character. When an individual can value one's self then so to are they then equipped to find the inherent truth and value in others. Many Christians, to give it a more familiar example for you, express this as loving themselves as God would love them so that in turn they may love and express love among others.

Is any of this positive nature or the negatives we tend to dwell on an inherent script within our DNA?....I don't think so. These wisdoms are universally part of our education to be individually discovered in this life. What I see inhibiting humanity at this time is their Communication Skills, and willingness to Share. They forget or fear or fail to understand that Sharing or Teaching what they learn is all a part of the whole process. Somewhere they have lost the skill or inclination to reach out with their life, their reality and integrate it with others in a contributional way. This lack of awareness and understanding is creating waves of self-inflicted fear, pain, and chaos which causes perpetuation of the problem. This is something which can be remedied. Someone must go first. Individuals must be willing to lead through example. This is why there is so much potential in the Contact Paradigm and all its facets of existential experience. It gives the opportunity for individuals to remedy this difficulty or inhibition I have described...the vicious cycle of negative circles can be broken....and a fresh paradigm of new choices for human potential laid out for perusal.

[Cyrellys]

Publishing Site 1: compassmorainn.blogspot.com/2009/05/discerning-conduits-of-influence-and.html

Publishing Site 2: Pending - UFO Digest

Discerning Conduits of Influence and Communication in Exopolitical Mediation
By Cyrellys Geibhendach
May 20, 2009

In Exopolitical Mediation, communication among parties rarely occurs within a typical mediation setting. In mainstream typical mediation, individual participants meet directly with the mediator first individually and then collectively in an agreed upon location. In Exopolitical Mediation the mediator may be directly involved in only one of the participants but provides avenues of information exchange to the public, among other participants, and among other exopolitical conduits. Connection with the public, for example, can range in its extensiveness from a simple release of a report on the internet to the more involved release of a book with corresponding interviews and other promotional activities. Exopolitical Mediation in this way immediately deviates from typical traditional forms of Mediation. However there remains universal aspects to it such as confidentiality of the participants. This makes some of the mechanics of exopolitical mediation unique in the general field of mediation.

Exopolitical Mediation currently occurs in a setting where the Mediator may administer contact with a paradigm participant or source, who holds a perceived position of purposeful leadership in or for that particular release. This does not mean that all communication within the mediation case occurs in conduit through the Mediator. Often the Mediator represents only one avenue of communication and networks in the open with other conduits which may well vary in nature. An example of a variant of conduit can be seen in a release of a recent article in the NY Times, entitled “A Climate Solution That’s Out Of This World”[1]. This variant is a unspecific non-mediated example under the understanding within Exopolitics that the mainstream media outlets are heavily controlled and restricted from serious publication of information or dialog on the subject of extra-terrestrial contact. So for such a release as the one referenced to occur, a sanction to communicate under specific conditions is assumed to have been given. This defines the article as a representation of communication from an additional conduit in an environment still engulfed in secrecy and non-disclosure orientation.

Recognizing additional conduits in a multi-factional environment is a problematic issue for Exopolitical Mediators. Most of this problem can be mitigated by having an understanding of the current exopolitical condition which includes continually evolving evaluative analysis of the existential evidence of a contact control structure. Exopolitical Mediators try to balance their understanding of the exopolitical condition through extensive reading and networking with other exopoliticians. Through these forms of self-education the productive and destructive strategies used by the contact paradigm constituents becomes apparent. An effective Exopolitical Mediator develops his or her ability to ‘listen carefully for’ other conduits within the paradigm. “In the most general sense, we have communication whenever one system, a source, influences another, the destination, by manipulation of alternative signals which can be transferred over the channel connecting them,” Osgood.[2]

The variety and necessity of obscure communication conduits arose out of the inherent or perceived needs of the parties behind them, in the pervasive secrecy climate of the last sixty odd years. The contact paradigm has carried the highest level of secrecy status possible within the United States as far as government and its contact paradigm extensions have been concerned. This has caused a fractured and multi-factional situation whereas the realms (social worlds) of pro and non-disclosure are again broken into many portions which continue fractional existence in many compartmentalized sub-groups. The extent of sub-groupment is not fully known at this time but releasing sources have routinely described the compartmental nature of the contact control structure and the confusing web of geopolitical inter-relationships which have grown so complex as to defy rational explanations or descriptions. These inter-relations compete with each other on many levels and spill over into the public presence where they are taken up and mirrored by open humanity in its opinions, and aggressive competing behaviors.

It is important for the Exopolitical Mediator to be aware of the variety and subtleness of communication forms and conduits in order to understand the various social worlds which lie within the contact paradigm. When the mediator understand the social worlds involved then it becomes possible to understand the various survival strategies and goals which pervade them. The Exopolitical Mediator comes face to face with these strategies and goals in life changing ways and must work among them to achieve cohesion of the participants in the evolutionary environment of potential human disclosure. “If we believe that the way we communicate makes the social world in which we live, and that these forms of communication make different social worlds, then it follows that, if we are to accept our responsibility for making the kind of social world in which we want to live and which we want to bequeath to our grandchildren, we should develop our ability to discern, differentiate, and selectively call into being preferred forms of communication,” W. Barnett Pearce.[3]

There are many types of survival strategies which are associated with the forces behind individual conduits. The nature of the individual strategies involved, also vary in the perceptibility of their existential natures. It is up to the mediator to be discerning to every extent possible to comprehend those natures. Some of the strategies encountered will be either pro-disclosure nature or non-disclosure nature with contents that range among conflict avoidance strategies, competitive conflict strategies, and cooperative strategies. It is the responsibility of the exopolitical mediator to focus on the process by which he is managing his interaction with these strategies and to try to avoid getting caught up in the conflict generating potential some of them have. The exopolitical mediator is not there wage a war but is there to assist the participants to communicate, establish connection and interaction, and to help them find their acceptable avenues for future development of collective options, goals, and common ground.




NOTES:
____________________

[1] Exopolitical Conduit Release Example: A climate solution that's out of this world, by Anne C Mulkern, published: May 14, 2009
www.facebook.com/l.php?u=http%3A%2F%2Fwww.nytimes.com%2Fgwire%2F2009%2F05%2F14%2F14greenwire-a-climate-solution-thats-out-of-this-world-19116.html&h=256aa688cdb92232fde5f4856a800385

[2] Communication for Social Change Anthology: Historical and Contemporary Readings, A Farewell to Aristotle “Horizontal Communication”, Lewis Ramiro Beltrain, 1979, (SOME TERMS AND ASSOCIATED MEASURES FOR TALKING ABOUT COMMUNICATION, Charles E Osgood, (Urbana, Illinois, Institute For Communications Research 1961) pg 48,) pg 158, books.google.com/books?id=85WbPmx9QlcC&pg=PA159&lpg=PA159&dq=percieving+communication,&source=bl&ots=6BGLQatRbP&sig=krL_ZSeeX344i9EmJSmtNLcl9QE&hl=en&ei=ATwUSunGBKCc8QTl-5CKBA&sa=X&oi=book_result&ct=result&resnum=3#PPA158,M1

“In the most general sense, we have communication whenever one system, a source, influences another, the destination, by manipulation of alternative signals which can be transferred over the channel connecting them.” Osgood. Pg 158


[3] TOWARD COMMUNICATIVE VIRTUOSITY: A MEDITATION ON MODERNITY AND OTHER FORMS OF COMMUNICATION © W. Barnett Pearce, 2005, School of Human and Organization Development, Fielding Graduate University, www.humiliationstudies.org/documents/PearceCommunicativeVirtuosity.pdf

“If we believe that the way we communicate makes the social world in which we live, and that these forms of communication make different social worlds, then it follows that, if we are to accept our responsibility for making the kind of social world in which we want to live and which we want to bequeath to our grandchildren, we should develop our ability to discern, differentiate, and selectively call into being preferred forms of communication.” Pearce, Pg 20

[Cyrellys]

Hegelian Dialectic... 'Problem - Reaction - Solution' Understanding the Use of Delphi Technique to Achieve Consensus

Lynn Stuter - November 1998 - reposted January 18, 2012 - EagleForum

Submitted by SadInAmerica on Wed, 01/18/2012 - 1:42pm.

How it is leading us away from representative government to an illusion of citizen participation... The Delphi Technique and consensus building are both founded in the same principle - the Hegelian dialectic of thesis, antithesis, and synthesis, with synthesis becoming the new thesis.

The goal is a continual evolution to "oneness of mind" (consensus means solidarity of belief) -the collective mind, the wholistic society, the wholistic earth, etc. In thesis and antithesis, opinions or views are presented on a subject to establish views and opposing views.

In synthesis, opposites are brought together to form the new thesis. All participants in the process are then to accept ownership of the new thesis and support it, changing their views to align with the new thesis. Through a continual process of evolution, "oneness of mind" will supposedly occur.

In group settings, the Delphi Technique is an unethical method of achieving consensus on controversial topics. It requires well-trained professionals, known as "facilitators" or "change agents," who deliberately escalate tension among group members, pitting one faction against another to make a preordained viewpoint appear "sensible," while making opposing views appear ridiculous.

In her book Educating for the New World Order, author and educator Beverly Eakman makes numerous references to the need of those in power to preserve the illusion that there is "community participation in decision-making processes, while in fact lay citizens are being squeezed out."

The setting or type of group is immaterial for the success of the technique. The point is that, when people are in groups that tend to share a particular knowledge base, they display certain identifiable characteristics, known as group dynamics, which allows the facilitator to apply the basic strategy.

The facilitators or change agents encourage each person in a group to express concerns about the programs, projects, or policies in question. They listen attentively, elicit input from group members, form "task forces," urge participants to make lists, and in going through these motions, learn about each member of a group. They are trained to identify the "leaders," the "loud mouths," the "weak or non-committal members," and those who are apt to change sides frequently during an argument.

Suddenly, the amiable facilitators become professional agitators and "devil's advocates." Using the "divide and conquer" principle, they manipulate one opinion against another, making those who are out of step appear "ridiculous, unknowledgeable, inarticulate, or dogmatic."

They attempt to anger certain participants, thereby accelerating tensions. The facilitators are well trained in psychological manipulation. They are able to predict the reactions of each member in a group. Individuals in opposition to the desired policy or program will be shut out.

The Delphi Technique works. It is very effective with parents, teachers, school children, and community groups. The "targets" rarely, if ever, realize that they are being manipulated. If they do suspect what is happening, they do not know how to end the process.

The facilitator seeks to polarize the group in order to become an accepted member of the group and of the process. The desired idea is then placed on the table and individual opinions are sought during discussion. Soon, associates from the divided group begin to adopt the idea as if it were their own, and they pressure the entire group to accept their proposition.


How the Delphi Technique Works

Consistent use of this technique to control public participation in our political system is causing alarm among people who cherish the form of government established by our Founding Fathers. Efforts in education and other areas have brought the emerging picture into focus.

In the not-too-distant past, the city of Spokane, in Washington state, hired a consultant to the tune of $47,000 to facilitate the direction of city government. This development brought a hue and cry from the local population. The ensuing course of action holds an eerie similarity to what is happening in education reform.

A newspaper editorial described how groups of disenfranchised citizens were brought together to "discuss" what they felt needed to be changed at the local government level. A compilation of the outcomes of those "discussions" influenced the writing of the city/county charter.

That sounds innocuous. But what actually happened in Spokane is happening in communities and school districts all across the country. Let's review the process that occurs in these meetings.

First, a facilitator is hired. While his job is supposedly neutral and non-judgmental, the opposite is actually true. The facilitator is there to direct the meeting to a preset conclusion.

The facilitator begins by working the crowd to establish a good-guy-bad-guy scenario. Anyone disagreeing with the facilitator must be made to appear as the bad guy, with the facilitator appearing as the good guy.

To accomplish this, the facilitator seeks out those who disagree and makes them look foolish, inept, or aggressive, which sends a clear message to the rest of the audience that, if they don't want the same treatment, they must keep quiet.

When the opposition has been identified and alienated, the facilitator becomes the good guy - a friend - and the agenda and direction of the meeting are established without the audience ever realizing what has happened.

Next, the attendees are broken up into smaller groups of seven or eight people. Each group has its own facilitator. The group facilitators steer participants to discuss preset issues, employing the same tactics as the lead facilitator.

Participants are encouraged to put their ideas and disagreements on paper, with the results to be compiled later. Who does the compiling? If you ask participants, you typically hear: "Those running the meeting compiled the results." Oh-h! The next question is: "How do you know that what you wrote on your sheet of paper was incorporated into the final outcome?" The typical answer is: "Well, I've wondered about that, because what I wrote doesn't seem to be reflected. I guess my views were in the minority."

That is the crux of the situation. If 50 people write down their ideas individually, to be compiled later into a final outcome, no one knows what anyone else has written. That the final outcome of such a meeting reflects anyone's input at all is highly questionable, and the same holds true when the facilitator records the group's comments on paper. But participants in these types of meetings usually don't question the process.

Why hold such meetings at all if the outcomes are already established? The answer is because it is imperative for the acceptance of the School-to-Work agenda, or the environmental agenda, or whatever the agenda, that ordinary people assume ownership of the preset outcomes.

If people believe an idea is theirs, they'll support it. If they believe an idea is being forced on them, they'll resist.

The Delphi Technique is being used very effectively to change our government from a representative form in which elected individuals represent the people, to a "participatory democracy" in which citizens selected at large are facilitated into ownership of preset outcomes.

These citizens believe that their input is important to the result, whereas the reality is that the outcome was already established by people not apparent to the participants.


How to Diffuse the Delphi Technique

Three steps can diffuse the Delphi Technique as facilitators attempt to steer a meeting in a specific direction.

1. Always be charming, courteous, and pleasant. Smile. Moderate your voice so as not to come across as belligerent or aggressive.

2. Stay focused. If possible, jot down your thoughts or questions. When facilitators are asked questions they don't want to answer, they often digress from the issue that was raised and try instead to put the questioner on the defensive.

Do not fall for this tactic. Courteously bring the facilitator back to your original question. If he rephrases it so that it becomes an accusatory statement (a popular tactic), simply say, "That is not what I asked. What I asked was . . ." and repeat your question.

3. Be persistent. If putting you on the defensive doesn't work, facilitators often resort to long monologues that drag on for several minutes. During that time, the group usually forgets the question that was asked, which is the intent. Let the facilitator finish. Then with polite persistence state: "But you didn't answer my question. My question was . . ." and repeat your question.

Never become angry under any circumstances. Anger directed at the facilitator will immediately make the facilitator the victim. This defeats the purpose. The goal of facilitators is to make the majority of the group members like them, and to alienate anyone who might pose a threat to the realization of their agenda.

People with firm, fixed beliefs, who are not afraid to stand up for what they believe in, are obvious threats. If a participant becomes a victim, the facilitator loses face and favor with the crowd.

This is why crowds are broken up into groups of seven or eight, and why objections are written on paper rather than voiced aloud where they can be open to public discussion and debate. It's called crowd control.

At a meeting, have two or three people who know the Delphi Technique dispersed through the crowd so that, when the facilitator digresses from a question, they can stand up and politely say: "But you didn't answer that lady/gentleman's question." Even if the facilitator suspects certain group members are working together, he will not want to alienate the crowd by making accusations. Occasionally, it takes only one incident of this type for the crowd to figure out what's going on.

Establish a plan of action before a meeting. Everyone on your team should know his part. Later, analyze what went right, what went wrong and why, and what needs to happen the next time. Never strategize during a meeting.

A popular tactic of facilitators, if a session is meeting with resistance, is to call a recess. During the recess, the facilitator and his spotters (people who observe the crowd during the course of a meeting) watch the crowd to see who congregates where, especially those who have offered resistance.

If the resistors congregate in one place, a spotter will gravitate to that group and join in the conversation, reporting what was said to the facilitator. When the meeting resumes, the facilitator will steer clear of the resistors. Do not congregate. Instead gravitate to where the facilitators or spotters are. Stay away from your team members.

This strategy also works in a face-to-face, one-on-one meeting with anyone trained to use the Delphi Technique.




Lynn Stuter - November 1998 - reposted January 18, 2012 - EagleForum




Lynn Stuter is an education researcher in Washington state. Her web site address is www.learn-usa.com/.

.Submitted by SadInAmerica on Wed, 01/18/2012 - 1:42pm.
www.knowthelies.com/node/6849