Helping constructive communication between the parties.
A lawyer should understand that smooth communication with the client or the opposite party enables them to better identify the problem, review further steps and find amicable solution to the problem. Good communication shall also be established with the third party, witnesses, friends and relatives of the parties. This would serve the purpose of gaining maximum amount of informaiton and better description of the overall picture over the dispute.
The importance of avoiding dispute settlement through court proceeding shall be communicated to the client. For this purpose, the role of communication shall be highlighted. Client shall accept bilateral communication with the opposite party as well. Lawyer or facilitator representing client’s interest shall also be able to initiate and maintain good communication with the opposite party.
Good communication is creation of an environment when the client freely expresses him or herself, describes the problems and concerns clearly and openly, shares all the facts and issues without psychological barrier with the lawyer or facilitator.
It is the responsibility for the fawyer or facilitator to create all the conditions for client to talk about the problem and expose negative emotions. The clients usually need someone with whom they could share their concerns and problems with. It is important for the lawyer to be patient and allow the client to tell everything, all the details even if they are not material.
For this purpose, confidentiality shall be respected. Communication on the problem shall take place in a separate room without interference of third parties or other employees of the organization. Lawyer shall notify the client from the beginning that he/she does not need to worry about dissemination of the information and that all what she/he talks remains in the premises of the room.
Water, tea or coffe shall be offered to the client for creation of a favorable and trustworthy atmosphere in the room. Lawyer may start talking about issues not directly relevant to the core of the problem, but to facilitate the communication for the client. Talking about weather, children, life or politics may be a good option.
Psychological element of communication is crucial. Lawyer shall consider the followings when communicating with the client:
The level and scope of compromise the client is ready to.
In this mediation the participants and mediator agree to:
- take turns speaking and not interrupt each other
- allow participants to speak for themselves only (for example, say “I think” and “I feel” rather than “everyone knows” or “you should”)
- not blame, attack, engage in put-downs or use racist or sexist language
- ask questions of each other for the purposes of gaining clarity and understanding
- stay away from establishing hard positions and express themselves in terms of personal needs and interests and the outcomes that they want to happen
- listen respectfully and sincerely and try to understand the other person's needs and interests
- respect each other’s right to speak without interruption
- make every effort to listen to each other so that we understand the different perspectives
- request a break when ever they need to
- point out if they feel the mediator is not being impartial or neutral
- discuss if anyone has a question of confidentiality
- expect that the facilitator will encourage everyone to follow the guidelines
- Don’t chew betel nut during the mediation.
- Harmful weapon not along to bring to mediation place.
- Respect the time .
- Any kind of alcohol is forbidden before come to mediation place
Internal rules are necessary before starting any discussion. When parties come into a mediation process, it is important that they can sit down and discuss things safely and calmly. In order to make the parties respect each other, rules must be agreed with both parties. Below are some suggested rules for a successful mediation:
How to set basic rules to establish good communication? When parties come to a mediation, it is very important that they can communicate effectively. This tool provides rules which mediators can implement to help constructive communication between the parties What to do:
Listen carefully and no interruption Respect other party Avoid manners of underestimating or blaming others Limit the time in delivering opinion Give chance to all parties to speak
Clear rules of communication: At the organisations ASK in Bangladesh, Deme So in Mali, Hagaruka in Rwanda and Cewla in Egypt, as well as representative for Praxis in Azerbaijan and at the CRDC's in Cambodia, facilitators have a set of rules that they insist that parties agree to before they take part in a mediation. These rules typically include:
Enforcement of Rules: In Indonesia, mediators have a moderator or facilitator present who is responsible for checking that the rules are stuck to. In Mali if the rules are not stuck to, the mediation is suspended until both parties agree to stick to the rules again.
Posters: In Cambodia mediators have posters which display the rules of the mediation. These are typical rules such as ‘no interrupting the other party’. The poster reminds the parties of the rules at all times as they are in view.
The Paralegal Practice Manual – Legal Aid Forum, Rwanda
- Do not interrupt when the other is speaking. You will get your chance to speak
- Please listen carefully to what the other is saying
- No verbal or physical threats or abuse
- Be as honest as you can
- All that is said will remain confidential
- You are free to leave anytime – we cannot force you to mediate
Operations Manual for Commune Dispute Resolution Committee, UNDP Cambodia p.10
Taking turns in speaking reduces conflict
Greatbatch, D. and R. Dingwall (1997). "Argumentative Talk in Divorce Mediation Sessions." American Sociological Review 62(1): 151-170.
Addressing the mediator rather than the other party reduces opportunities and causes of further conflict
Garcia, A. (1991). "Dispute Resolution without Disputing: How the Interactional Organisation of Mediaton Hearings Minimises Argument." American Sociological Review 56: 818-835.
Elements that can be included in the rules; timeline, breaks, respect, language, look each other in the face, no distracting behavior
Bonenkamp, H.J., Brenninkmeijer, A.F.M. (2001) Handboek mediation
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