BY LAWYER ESTHER KUMAH
Barrister and Solicitor of the Supreme Court of Ghana
Administrator, Ghana ADR HUB
Being Paper submitted to GIZ and its partners on 10May 2022 for presentation on 13 May 2022 at the Mediation in Africa Conference, under the theme “Promotion of Mediation via training and continuous formation” to be held in Dakar, Senegal.
This paper will consider the training of would-be mediators, the best metrics to use in selecting mediators and the continuous education and growth of mediators. This broad topic will be addressed under five main focus areas;
- Predesign Considerations
- Best Practices for designing a mediation programme
- Core components of a Mediation Training Programme
- Selection of Mediators
- Continuing Professional Development of Mediators
These are the factors to consider prior to designing a training programme. At the initial stage and even before the training crystallises, one needs to consider the following;
- Who are the target participants of the training?
The coach or trainer must ascertain the target audience. In doing this, the various backgrounds of the participants must be considered to design the optimum training programme.
- How will participants use the training?
In answering this, the goals and objectives of the participants need to be considered. The level of the participants also plays a factor. For example, is the training for beginners, intermediates, or an advanced class?
- What additional support and resources will participants need to be effective in their role after training?
Ascertain whether participants will require further learning and the best medium to facilitate it. For example, if there will be a need for continuous education through further lectures and discussions to enable them to practice what they have learned.
In designing a mediation programme, the trainer/coach must identify the overall purpose of the training programme and set it out. This aids in determining appropriate inputs to design the training programme.
The author proposes four main steps in designing and developing a training programme. Each step involves gathering information to identify specific needs and identifying resources to meet them.
Ask the relevant questions on the needs the training will be satisfying. Mediators work in various settings. Knowing the setting in which the trainees will be working and the essential tasks they will be expected to perform is critical in developing the design process.
Knowing the expected outcomes of the training is also a critical component of the design process. Having a clear idea of the expected outcomes after one has thought through the essential tasks the trainees will be performing leads to the establishment of the objectives of the training program.
The next step in the design process is to identify the target audience of the training course. One needs to establish who the target participants are. The course designers then must find the answers to these questions; What are their expected roles after the training?
What do they need to know? What specific skill sets do they need to acquire? What theoretical knowledge do they need in conducting their roles?
Finding answers to these questions leads one to the Training Goals of the course.
With the training goals established, the next step in the design process is to identify the program content and establish information needs. The designers need to establish the topics to be covered, whether the training be theoretical, practical or both?
Further, the kind of lectures, role plays, and exercises required to meet the skillset needs of participants will have to be established.
It is important to identify if some subjects are pre-requisites to the core subject matter to be taught and make adequate provisions to provide this during the training. Course instructors’ expertise and presentation styles will also have to be established.
This leads to establishing the Agenda, Components & Course Materials Development, and Instructor Qualification.
The fourth and last step in the design process is identifying the program format and logistics. To achieve these course designers must determine the sequence and timing of each component and their respective exercises; identify and assign instructions for each component, determine the number of break out rooms needed, and finally determine the number of instructors, assistants, and coaches needed to make breakouts effective.
At the end of this exercise, the Timetable would be drawn up, the number of Instructors, Assistants & Coaches Established, and Instructor Agreements Drawn Up.
In guaranteeing that the mediation training yields its purpose, mediators should have a thorough grounding in and an ability to utilise the following effectively at the end of the training.
- A process or model they can use to facilitate the resolution of disputes.
- They should also acquire communication skills that ensure that the parties feel heard and understood to get on the logical track.
- An understanding of what fuels conflicts, including psychological or procedural factors and mistaken assumptions.
- A range of methods for eliciting and recognising the parties’ underlying interests (as compared to their positions)
- Listening skills, including how to listen without judging, how to make the parties feel understood, how to acknowledge without agreeing (being empathic and neutral at the same time) and how to listen accurately.
- Appropriate questioning skills
- An understanding of ethical considerations.
As will be discussed later, it is recommended that every mediation training should be guided by the “Say, Show, Practice” principle.
“Say” encompasses the theory aspect. This helps the participants to grasp the elements and concepts being taught by the instructor.
“Show” refers to the part of the training where experienced mediators demonstrate how the concepts taught are carried out in practice. This deepens the understanding of the concepts by the trainees.
The “Practice” aspect of the training involves the implementation of what has been learnt through simulations and role-plays to solidify the new skills acquired so they can confidently be repeated in real-life situations.
The Importance of the show and practice or role-play is to ensure that what has been taught has been successfully understood by the trainees. As seen in Figure 1, Burch (1970) theory on the stages of competence development emphasises the merits of the say-show-practice principle.
In ensuring that the training programme encompasses the key components of Mediation, it is imperative that you include the above listed.
Figure 1.0 the Four Stages of Competency by Noel Burch, 1970
2.3.1 WHAT WE DO AT GHANA ADR HUB
One of the courses offered at the Ghana ADR Hub is an introductory mediation course for beginning meditators. We discuss below the components of the introductory course as an example of what one may include in a basic course for mediators.
1. An Introduction to Conflict and Conflict Management Techniques
- What is Conflict?
- Is conflict good or bad?
- Resolving and Managing Conflicts; a Conceptual Framework for analysing conflict.
2. An Introduction to The Alternative Dispute Resolution and the Different Methods under the Spectrum
- What is ADR? ADR as an Alternative to Litigation.
- Why the need for ADR? A comparison of Litigation and ADR Processes; their advantages and disadvantages.
- The ADR Spectrum. A brief introduction to the various ADR Processes, indicating when each is most appropriate.
Conflict analysis role play. A role play designed to offer participants the opportunity to practice their conflict analysis skills.
3. Introduction to Negotiation and Interest-Based Negotiation
- A brief theoretical background
- Introduction to Interest-Based Negotiation Skills as the bedrock of the Mediators toolkit
- The five Principles of Interest Based Negotiations
- Interests and Positions Identification Exercise
- Options Invention Exercise.
Full Negotiation role-play designed to afford participants the opportunity to practice their Interest-Based Negotiation skills.
4. Introduction to Mediation and Mediation in Practice
A. Introduction to Mediation
- What is Mediation?
- How does Mediation differ from Arbitration and Litigation?
- Mediation Approaches
- The Qualities and Attributes of a good Mediator
- The Role and Functions of a Mediator
B. Mediation in Practice
- Mediators opening Statement and Demonstration
- Initial Storytelling and Venting
- Summarising the issues to be discussed
- Defining the problems presented
- The search for solutions; inventing options for mutual gain
- Reaching Agreement/Closure
- The Caucus.
Take-home exercise: Preparing an Opening Statement.
5. Drafting Mediation Agreements
A. Communication for Dispute Resolution
- An introduction to Communication Skills for Mediators
- Active listening techniques
- Effective speaking techniques • How to ask open-ended questions
- Political correctness.
B. Body Language and Dressing
6. Ethics in Mediation
• Ethical Considerations and Mediators liability for malpractice.
Ethical Considerations Role Play. A full Mediation role play with challenging ethical considerations.
How is the competence of a mediator measured, and what should be the metrics in selecting a mediator?
In selecting mediators for participation in mediation programs, employing the Performance Evaluation Criteria and the Substantive Knowledge Criteria is prudent.
The sample scale below may be used as the parameters for designing performance-based criteria for selecting mediators.
- Gathering Information: Effectiveness in identifying and seeking out relevant information pertinent to the case
- Empathy: Conspicuous awareness and consideration of the needs of others.
- Impartiality: Manner of introductions and initial explanations showed equal respect for all disputants. Listened to both sides. Asked objective questions and conveyed a neutral atmosphere. Demonstrated that he/she was keeping an open mind. Non-verbal communication did not favour either party
- Generating Options: Pursuit of collaborative solutions and generation of ideas and proposals consistent with case facts and workable for opposing parties.
- Generating Agreement: Effectiveness in moving the parties toward finality and “closing” an agreement.
- Managing the Interaction: Effectiveness in developing strategy, managing the process, and coping with conflicts between clients and professional representatives.
Substantive knowledge criteria look at the mediator’s competence in the issues pertaining to the dispute.
Substantive knowledge can be specified at several levels. The requirements of an expert mediator will be different from that of a new mediator.
In the instance of a new mediator, one will need enough knowledge of the type of parties and type of dispute to be able to
- facilitate communication
- help the parties develop options
- alert parties to the existence of legal information relevant to their decision to settle.
Also, a new mediator will require knowledge of the programme’s procedures for finalising the agreement and what options are open to the parties to resolve the dispute if no agreement is reached.
Although it is usually advised to focus more on performance-based criteria in selection rather than substantive knowledge, the author’s view is that a healthy balance of the two as metrics will yield the selection of a very good mediator.
Furthermore, the selected mediator must be well versed in the key KSAOs; Knowledge, Skills, Abilities, and Other Attributes.
Charkoudian et al (2009) elucidate that some of the major core mediation skills include listening, summarising, and agenda-setting. They further discuss extensively on the key KSAOs as outlined below:
- REASONING: To reason logically and analytically, effectively distinguishing issues and questioning assumptions.
- ANALYSIS: To assimilate large quantities of varied information into logical ideas or concepts.
- PROBLEM-SOLVING: To generate, assess and prioritise alternative solutions to a problem, or help the parties do so
- READING COMPREHENSION: To read and comprehend written materials
- WRITING: To write clearly and concisely, using neutral language
- ORAL COMMUNICATION: To speak with clarity, listen carefully and empathetically.
- NON-VERBAL COMMUNICATION: To use voice inflexion, gestures, and eye contact appropriately.
- INTERVIEWING SKILLS: To obtain and process information from others, eliciting information, listening actively, and facilitating an exchange of information.
- EMOTIONAL STABILITY/MATURITY: To remain calm and level-headed in stressful and emotional situations.
- INTEGRITY: To be responsible, ethical, and honest.
- VALUES AND ETHICS: To discern own and others’ strongly held values
- IMPARTIALITY: To maintain an open mind about different points of view
- ORGANISATIONAL SKILLS: To effectively manage activities, records, and other materials.
- COMMITMENT TO HELPING OTHERS: Interest in helping others to resolve conflict.
The purpose of continuing professional development is to ensure that Mediators keep their knowledge and skills up to date for the benefit of users of their service and their own personal and professional development. An underlying ethical premise of continuing professional development asserts that clients have a right to expect competent and skilled practitioners. It also serves to maximise potential and enhance the confidence of practitioners.
Developing specialisation skills in mediation practice is also one of the key aims of continuing professional development.
CPD may be carried out in several ways. Refresher seminars and webinars are one avenue for carrying out CPD. Peer study groups is another means of ensuring the continuing development of mediators. This consists of a group of peers mentored by a seasoned practitioner. The mentor assigns readings to the group and they meet periodically to discuss and review the material studied. The mentor checks in with the group once in a while to keep them on track.
Another great way to improve one’s abilities as a mediator is to engage in the teaching of the subject. Several institutions now offer courses in ADR and mediation. Enrolling to teach on one of these courses provides an opportunity to learn new things every day for in teaching, we learn.
Writing articles and conducting research is another avenue for CPD. Researching and writing on current trends in the field of mediation results in constantly keeping abreast with the latest development in the field and challenges researchers and writers to come up with new ideas.
Success in some areas of mediation practice requires the mediator not only to understand the mediation process but the substantive area of practice. Mediating disputes in areas such as insurance, labour disputes, family law and working as a mediator in the regulatory setting requires an in-depth understanding of the legal, regulatory and institutional frame works and of the area. This is best achieved through specialized CPD.
In conclusion, the principle to guide all mediation training is the “say, show, practice”. This principle ensures that what is taught is successfully understood and that the mediator can use these concepts in a real-life situation.
During role-play or the practice component, the coaches continuously give practice advice and feedback. Participants can also achieve the needed skill level with role play and training. Trainees use that opportunity to exhibit these new skills. Other than that, they are likely to fall back on their pre-training attitude under the pressure that an actual mediation brings.
The single most important feature of mediation training, therefore, is practice. Enough practice to solidify new habits so they can be applied effectively.
Coaches or trainees are cautioned that they should have the same broad philosophical approach to Mediation during training and should not be seen to undermine the trainee’s work. It is also helpful for the trainer to expose the participants to different coaches throughout the training. Hence, they see variations in style, again reinforcing that there is no single correct way to mediate. Although the style in delivery may be different, the core remains the same.
Charkoudian, L., Ritis, C.D., Buck, R. and Wilson, C.L., 2009. Mediation by any other name would smell as sweet—or would it? The struggle to define Mediation and its various approaches.
Conflict Resolution Quarterly, 26(3), pp.293-316.
Burch, N., 1970. Conscious competence learning model: four stages of learning theoryunconscious incompetence to unconscious competence matrix-and other theories and models for learning and change. Available at: http://www. citehr. com/23983-conscious-competencelearning-model. html [Assessed 25 April 2022]