Training

Guest Post from Janene Tuniz: In Mediation Competitions: To Compete as a Mediator, Don’t Compete

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Competing as a mediator in a moot competition is a conundrum. What’s unique about selecting this particular puzzle is that you never meet your fellow competitors. You enter each session with fresh faces to your left and right and a row of important people in front of you, ready to judge your performance. Instead, unlike when you enter as a negotiator, it’s just you. There is no way to gauge how you are doing in comparison to the other mediators in the rooms next door and there is no way to know for sure if you are acting in the right way or saying the right things. You also only have some pieces of the picture, making it difficult to really know what’s going on from the onset. You may be tempted to speak loudly or ensure that your presence is felt but I assure you, that’s not the way.

Although I have never been in a real commercial mediation, I imagine there are ways in which a competition and real life are fundamentally different. For instance, in real life there is real money, real problems and ordinarily a real urgency to reach a settlement. In such instances people don’t necessarily behave in the way that we would like or need them to in order to find a party-driven solution. They may use positional bargaining or withhold information and they may not be sincerely seeking to re-establish trust and open communication. In the CDRC Mediation and Negotiation Competition it’s totally different. There may be some semblance of mistrust but since competitors are judged on their trust building and communication skills they are prepped to use information strategically and with all their might, share and identify real interests.

 

There are, however, many ways in which a competition and real life are exactly the same. At CDRC this year I learnt that it is in these areas the role of the mediator is paramount. To put it simply, like in real life, participants of a mediation competition are nervous and unsure. After training for months, it all culminates in that moment, face to face with the other party, ready to negotiate. The tension in the room before the timer starts is palpable and as a mediator, that’s your moment. What’s perplexing about that moment, however, is the fact that while you are in it, you are not competing.

 

I know it sounds contradictory to enter a competition to be an anti-competitive at the pinnacle moment, but since there are no other “opponents” in the room you are not contending against anyone else. Your job in that moment is not to outshine the negotiators by saying the most impressive things or flamboyantly flaunting the rules and regulations, check-listing through caucus guidelines or confidentiality requirements. It’s important to cover these things, of course, but as the mediator you need to do it in such a way that you address the tension in the room. You alleviate worries and make sure that those who are in direct competition, trust the process and trust you. The moment you open your mouth to speak, you need to settle nerves and establish certainty.

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Trusting the mediation process is something that happens automatically in a competition but getting parties to trust you is something different. Sitting at the head of the table it’s a challenge to take a step back and guide the process instead of leading it, but it is the best way to create an environment of trust. I found the training sessions prior to the competition to be incredibly useful in highlighting this fact. I remember writing down that I should listen for (and respond to) emotions in Tom Valenti’s session entitled “Mediator Tools and Behaviors.” Being able to gauge what people in the room are feeling and validating those feelings is a fundamental step towards developing that trust. I’m not saying that every emotion should be brought under the spot light and observed by everyone at the table, but as the mediator it is imperative that you are able to note changes in body language or tone and react appropriately.

 

It’s impossible to note how people are feeling without being present. Active listening and sincere, honest feedback are imperative in this regard. Summarizing and telling the facts back to the parties in a neutral way is also a great way to show progress and create consensus but proceed with caution – it’s also risky business. Personally, I’m guilty of putting a positive spin on just about everything anyone at the mediation table says. While reframing is a good tool, using it too frequently can quickly backfire if it’s the wrong moment or if the parties are angry and frustrated.

 

Competing as a mediator is riddle worth riddling. It involves a multitude of different skill sets and an ability to know when you are needed and when you are not. It’s also something that to a large extent is based on self-confidence. I learnt so much at the CDRC competition but the message that resonated most was the importance of being true to yourself. There are so many styles and ways of mediating that it’s easy to fit a mould but once you do, it’s difficult to have the flexibility and reactiveness that’s required of you when mediating. Make a concerted effort to be the best version of yourself when you are sitting in the mediator’s seat. If you don’t feel like the best version of you that day, there are a range of things you can do to get to that point – you can give Sabine Walsh and Aled Davies a call for power stance tips and loud clapping tactics.

 

One thing I can say for sure, or rather, one piece of advice I could give to future competitors in the mediator category is that you shouldn’t compete. Obviously don’t treat the mediation like a ping pong match, acting only as an observer (remember to listen for and respond to emotions) but don’t treat it like a competition and don’t treat the people in the room as your competitors. How do you do that in practice? It’s puzzling, I know.

 

*Janene Tuniz is an LL.M Sustainable Development candidate and mediator in the making. She won first prize in Mediation at the CDRC Mediation and Negotiation Competition in 2019 and is the Co-founder and Communications Director of Diciassette which is part of the UN Sustainable Development Solutions Network. She is also the Content Manager and Executive Editor for online publication, The Sustainable Development Watch and is currently completing an internship at the United Nations in Nairobi.

Guest Post : 7th NLIU INADR International Law School Mediation Tournament 2018 – A competition full of learning, many trophies to encourage better performance, and for us, a memory and victory to cherish forever!

I would take moment of deep breathing before I begin with the story of our team just like we did before every round during the tournament. Before being titled the “Overall Winners” and “Best Mediator Team” (for those who need to know, the two main titles) of 7th NLIU INADR International Law School Mediation Tournament, we were just another law students curious enough to learn, more than win. Being first time participants in a competition (I had mooted before in Antitrust Law but Rohan and Sanjhi were participating in a competition for the first time), we expected to learn from other students senior in experience to us but the titles we won debunked our own wrong beliefs.team picture

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

The journey began with giving intra-murals in Nirma University and secure a good rank to forming a team and believing each other, which very well laid our foundation for team work. We talked and met beyond professional reasons and bonded well which really made our relationship improve. Now this is exactly how Mediation and Negotiation works, securing relationship and Getting a Yes! Now that we started working together on the problem, we initially couldn’t figure out how to prepare. We read a book “Getting to Yes” by Roger Fisher and William Ury and understood what exactly Negotiation and Mediation means, to be very correct “Principled Negotiation” both in practical day-to-day life and tournament understanding of course resembles it with some variations. Apart from reading the book, we watched many tutorial videos and mock sessions and videos of other competitions to understand better.

However, there is a reason why NLIU INADR is the best tournament in Asia and how it is different from other Negotiation-Mediation Tournament worldwide. It requires all 3 team members do all 3 roles of Client, Counsel (Negotiators) and Mediator in first three Preliminary Rounds. Now that is tricky but a lot of learning. We three made sure to make each other understand each role that we “thought” we were best at and it turned out that NLIU INADR taught us all three roles really well, especially because after very first preliminary round, there is scope for improvement because you listen to your own role’s feedback and then of others too in the room. Now it depends on how you internalize the feedback and suggestions of the judges after every round. The team, even if new to such competition, but internalizes the feedbacks better takes the title. During the tournament, the judges not only pointed out what we did incorrect but also mentioned what we should continue doing, those being our strengths (like Mr. Valenti, Mr. Rogula, Mr. Ellis and many other judges did). It is in best interest of participants to listen carefully and internalize the feedbacks, not only for this competition and other ADR competitions, but also when they actually go out as professional mediators and negotiate in daily life or for professionally cracking a deal.

This tournament taught us the right gesture and correct words in the right moment, to think twice before speaking, to speak only when necessary, to listen actively, be polite even when one wants to let off the steam, to do as negotiators what benefits you but doesn’t harm the other side, to be unbiased and so on. All this learning did not exclude the fun we all had dancing at the cultural night and interactions during training sessions and lunch breaks. NLIU INADR Tournament 2018 is what we will cherish to have been a part of and having performed great for which we extend our gratitude to amazing judges, NLIU tutorials, training sessions, Nirma University and mutually to each other, as a team! We will cherish not only the winning titles but the whole journey and 3 days of learning. Success is not a one-time thing, it is not a fluke. It is not just about the trophies, Learning and Improving and Growing as a person is a victory in itself.

-Twinkle Malukani, Rohan Bangia and Sanjhi Agarwal

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

What is inclusive education? A Guest Essay from Benafsha Yaqoobi*

Every human being was created free and with equal rights in every aspect of individual and social life. The Universal Declaration of Human Rights (148), ensures these rights; rights, such as freedom in choosing or changing living place, freedom of speech, freedom of decision to believe or not to believe in spiritual affairs, education, etc.

On the other hand, since the very beginning of mankind’s creation, we have been seeing a variety of differences in this creation. The first one, is the difference in sex or gender, as mentioned in many places in The Quran and The Bible, that they were created males and females. Other types of differences include ethnicity, race, language, religion (or system of beliefs), and also health-related differences. We may call these differences, diversities.

RayhabBut attitudes towards these diversities have been different from time to time, depending on the status of intellectual and social evolution of mankind throughout history. There have been a considerable number of wars, due to religious, ethnic or racial differences. For instance, The Crusade, which was a war between Christians and Muslims to conquer Jerusalem, was a religious one. Also according to historians, people with health status differences, such as leprosy, would be called, unclean and therefore would be drawn out of cities, far from the public. People with epilepsy would be associated with demons and in Roman Church. Their heads were pierced, so, hopefully the demonic spirits might exit from them.

There has been a large amount of evidence and documents, from the beginning, even to nowadays, showing and proving that mankind has had problems with his/her fellows with differences all around the world.
Disability, which could be defined as, limitations in functionalities in some parts of the body, or impairments in sensation, physical or even mental system, that are permanent , may create challenges for a person with disabilities. These challenges mostly come out of a kind of attitude towards this diversity, as well as other diversities.

One of these challenges is education, since there were no positive or inclusion-based attitudes towards people with diversities throughout history.
There has always been a question in people’s minds, whether it is possible or feasible to give diversity and minority people their right to be educated, or, whether they must be excluded or even deprived from such right, due to their diversity status.

Our aim in this essay, is to discuss about an evolved and ever-evolving approach to the issue of education, specifically for those with diversities, which we call, “inclusive education”.

Inclusive education: Definition.

Shelley Moore, a Canadian education specialist, defines it as follows:
“Inclusive education means that all students attend and are welcomed by their neighborhood schools in age-appropriate, regular classes and are supported to learn, contribute and participate in all aspects of the life of the school”( Inclusion BC website).
Of course, even though the special needs of people with diversities, such those of people with disabilities, are not to be neglected at all, since all barriers are to be removed to pave the path for these types of people to receive a quality education, as equivalent as possible with the mainstreaming children.

Historical overview of approaches:

The importance and significance of such an ever-evolving attitude towards education of people with diversities may become clear, only if we have an overview of how mankind started the path and where we are nowadays.

Looking through history, we may face at least 4 approaches towards inclusion of people with diversities. They could be identified as, deprivation, segregation, integration and inclusion approaches.

Deprivation: this approach is derived from a totally negative attitude by majority or ruling people of a society towards people with diversities and their right to be educated. According to historians, in many of the ancient empires, people with low incomes were not allowed to send their children to school. In fact, education was merely the right of noble people.

Even nowadays, we may see in different parts of the world, such as Afghanistan, that females, as well as people with disabilities, and also some minorities, are either partially or totally deprived from their right to be educated. The fallen Taliban regime, during its governance, would not allow females to receive education. This and much more evidence is proof of a negative approach towards the education right for people with diversities, which, even nowadays, is followed by some under-development, at least in the level of traditions, if not to say by governments in a formal level.

Segregation: as mankind began to evolve himself scientifically, technically and intellectually, following the ages of renaissance, reforms and enlightenment, he began to think about how to involve people with diversities in the process of education, that led him to establish segregated places for diversity people. Louis Braille, the inventor of a system of reading and writing for persons with vision impairments, called, “Braille System”, was one of those people with disabilities who received education in a segregated, special school for the blind in France in 19th century.

Even nowadays, we see here and there, some segregated special schools for people with disabilities, such as people with visual, hearing and mental impairments. Such kind of places are criticized of segregating and isolating such people from the mainstreaming community.

Integration: in integrative approach towards education of people with diversities, we see the establishment of special classes within public, ordinary schools, for those with diversities, specifically those with disabilities. This approach, although evaluated by scholars as a much better approach comparing to segregation and deprivation, but findings have shown that people with diversities, even though, feel sort of segregated from the mainstreaming students. Even nowadays, we may face even in modern countries, both segregated and integrated places for education for people with diversities, including those with disabilities.

Inclusion: based on the laws and regulations on the elimination of all kinds of discriminations against people with all types of diversities, such as, Convention on the Rights of People with Disabilities, CRPD (2006), and Sustainable Development Goals SDG (2017) by The UN, and more, education specialists thought about how to fully include and involve people with diversities in the mainstreaming educational system. In the 21st century, this is the best and highly-appreciated approach, since it was evaluated as a helpful approach towards disappearance of discrimination.

The inclusive education advantages:

This approach is proved to be a good way of including people with differences in one place, in order to flourish the spirit of harmony and tolerance among students, who will be the future-makers, and on the other hand, to help people with diversities to feel comfortable with the mainstream.

Other advantages of this approach can be outlined as follows:

• improving individual strengths and talents, with high and suitable expectations for each student.
• Work on personal goals while taking part in the class procedure with other students with the same ages.
• Engaging the children’s parents in the process of education and in the school activities.
• Nourishing a culture of respect and correlation. Inclusive education may create an environment for understanding and accepting individual differences, decreasing the effects of irritation and bullying.
• Creating friendships with a wide range of other students, each with different needs and capabilities.
• Having positive effects, both on schools and on the society, so that they may welcome diversity and inclusion on a wider level.

Inclusive education requirements:

As mentioned above, to remove the barriers for those with special needs in a mainstreaming school, the following items may be required:

• Special stationeries: some categories of disabilities may not be able to use mainstreaming stationeries, such as notebooks, pens, pencils, etc. therefore, alternative stationeries may be provided for them. For instance, for children with vision impairments, if they are totally blind, special stationeries are required, such as, slates, styluses, tailors frames, Brailing machines, etc., and if partially sighted, they may require devices to make them able to read the normal books, such as books in large prints, or magnifying devices, etc.
• Resource center: this is specifically needed for persons with disabilities, since they need some rehabilitative services before joining public schools. Such center can also provide them with their special needs during being in public school.
• Resource person: this person could be a mediator between the children with special needs and their teachers. The resource person can train the teachers of the public school about inclusive education and its successful ways. The person can also be, for example, an interpreter between a child with hearing impairments and his/her teachers, using sign language, or, a reader for a child with vision impairments, who may have done assignment or exam paper sheets, using Braille system.
• Accessibility of school place: school environment should be accessible, specifically for those with physical impairments, with ramps and lifts to make it easier to ascend and descend from staircases, and for those with vision impairments, with tactile marks across the path that appears to be used by a child with vision impairments, using white cane.
• And also flexibility of teachers in using a variety methods of teaching, including work groups, peer mediations, etc., to make the class a place which is child-friendly.

Conclusion:

As discussed in the essay, mankind was created free, but with diversities. But as human knowledge began to develop, it was gradually realized that these diversities are not good excuses of persecution against one another.
Regarding education, which was considered one of the basic human rights, 4 approaches were discussed concerning people with diversities: deprivation, segregation, integration and inclusion.

Inclusion was considered as the best and ever-evolving approach, with advantages, such as, developing a spirit of harmony and correlation between different types of children in one environment, so that people with diversities may feel themselves harmonious with mainstreaming children.

Also, the special needs of children with disabilities, depending on their type of disability, are to be considered as inclusive education requirements.

Finally, it is worthy to be mentioned that, Afghanistan, as a war-torn country, is in need of tolerance, harmony and correlation between all types of people, including ethnicities, religions, etc., to build a sustainable peace and stability all around the country.
Therefore, by promoting inclusive education to all schools of this country, this spirit of harmony and correlation will be develop and flourished within our children, who will be our future-makers.

Citations:

1. The Quran.
2. The Bible.
3. Shelley Moore: Transforming Inclusive Education: Inclusion BC website:
http://www.inclusionbc.org/our-priority-areas/inclusive-education/what-inclusive-education

Benafsha 2

* Benafsha Yaqoobi , the director of an NGO for persons with disabilities, called, “Rahyab Organization (ORRSB)”, was born in Kabul, Afghanistan. She started her school in Kabul and continued until grade 7, right at the time when she and her family were obliged to immigrate due to civil wars of the 1990’s, where she obtained her bachelor’s degree in Persian literature.

She obtained a Master’s degree in 2 fields: political sciences from  “Payam’e’Noor” university, Kabul; and international relations from Afghanistan Institute for Higher Education, Kabul.

She hopes to continue her PH.D to raise her capacities and capabilities to become much more fruitful for her country.

During these years, she would do a large number of activities, such as, writing poems, writing in newspapers and magazines, directing and presenting programs in local media, etc.

 

Reflections from Vienna via Florence on IBA-VIAC CDRC Competition 2018: “The Value of Active Listening in the Heat of the Moment. (When bringing a “taser” to a mediation can be a good idea.)

“How can I interject this question without interrupting?”

“This answer doesn’t satisfy me. How can I ask again without stalling the conversation?”

“I need to discuss privately with my client, but it is not appropriate to stop this joint session now.”

“Perhaps I would need something to… tase my client, so that he could remember to consider my opinion as well!”

female taser

During mediation a lot of questions come to your mind, but it is usually not easy to get an answer quickly and keep track of the conversation. When you attend negotiation courses or you study the theory of mediation at home, it is fairly common to overlook the practical implications of such questions, but trust us, they are very relevant.

However, let’s start with some brief introductions first: we, the two writers of this hopefully interesting article, are Elisa Menichini and Emanuele De Napoli, two law students from the University of Florence, Italy. Together with two other students (Francesco Lichen Wang and Marzia Montinari), we were part of the only italian negotiator team at the 4th IBA-VIAC CDRC Mediation and Negotiation Competition in Vienna this July. We were coached by the experienced Professor Paola Lucarelli.
Florence Team
The CDRC Competition was a very formative experience, a melting pot of creative law students from all over the world ready to compete and learn under the guidance of legal experts and professionals willing to share their expertise and ideas. Mediation is a rather recent Dispute Resolution method in Italy (2010) and we, as future legal practitioners, felt that this competition was the right opportunity to grow both personally and professionally.

During the many rounds, carefully and masterfully directed by Claudia Winkler and the CDRC Staff, 33 teams of negotiators and mediators proved their skills in mock disputes based on the 2018 Willem C. Vis International Commercial Arbitration Moot Problem.

There would be so much to describe and write about the competition itself, the wonderful staff and the friendships that were born this year in Vienna, but we will concentrate on a specific event that we truly believe captures one of the key aspects of mediation and conflict in general. Something that we all need to remember.

During one of the rounds we were facing the Istanbul ŞEHİR University, while the mediator was coming from Maharastra National Law University in Mumbay. The negotiation process was lively and dynamic since the beginning. Our team was divided as such: Elisa = Legal Counsel; Emanuele = Client. Bargaining techniques were followed by quick responses, numbers were soon flying across the table and the two opposing clients were dragged into the heat of the negotiation. The trusty legal counsel (Elisa) tried more than once to calm and reassure her competitive client (Emanuele), but he was too focused on his business goal to be “stopped” by his lawyer.

The agitated legal counsel even tried touching her client, but he would just uncounsciously move away. Even trying to hit his legs wouldn’t work, since he was conveniently keeping them under the other side of the table. The now fuming lawyer wrote down on her papers in capital letters “NO”, as a concise but effective way to express her disapproval of a certain proposal. Not even this last resort seemed to restabilish the connection between the two. The businessmen were at work and they didn’t want to be bothered!
Im-not-Listening
Eventually a break was called and we were able to breath, relax and get back into our two combative characters after having shared briefly our ideas and views. The rest of the session went smoothly.

Once the round was finished and the feedbacks by the expert assessors had already been given, we had the opportunity to receive further insights from the judges. When we told this “comic” situation to Thomas P. Valenti, one of the experts who offered us precious suggestions and tips, he recommended (as an obvious but very clever joke) an innovative technique to force active listening and to calm down for a while an overachieving client: using a taser. When caresses, stares and kicks in the legs fail, go harder and use a taser.

Even if it was only meant as a joke, it truly made us think of the value of mediation, active listening and teamwork. During this competition as well as during similar events that we took part in, we noticed how conflict can be like a tornado, drawing the parties into the fight and making them lose sight of their true interests, even if they’re well-prepared. The legal counsels might feel that they need to manage their clients and sometimes thwart their emotions. But the role of the legal expert is changing and a lawyer should be able to understand and compensate for his clients’s whim as well.

That’s exactly why you need mediation, why you need a third party that can redirect you to the right path. The legal counsel should be the “trusty companion” that can grant a proper reality check when necessary and the needed aid when in doubt.

In conclusion, mediation can be considered a “metaphorical taser”: a ground-breaking method among the dispute resolution procedures. It shakes the way we perceive conflict in nowaday society, it changes the rules. The CDRC Vienna Competition was the perfect context to see how effective mediation can be.

We, as young students and future professional, are active witnesses of an epochal change in the way people face conflict: an opportunity instead of a danger to be avoided at all costs.

And if sometimes we’ll need to be “tased” to achieve this results, so be it.

By Emanuele De Napoli and Elisa Menichini,
University of Florence (School of Law),
Italy.

Unique 20 hour Master Negotiation Class to be offered at 2 different Southern European destinations in 2017

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We have designed a unique 20 hour Master negotiation Class to be offered at 2 different Southern European destinations in 2017 at different times, depending upon interest. There will be opportunities for guest accommodations, and scheduled special activities for non-participating guests. This survey does not obligate anyone, but will assist in further planning. For those who are interested, the survey is very brief and should take no longer than a couple of minutes. 

Take this survey

 

Online Skills for Arbitration: Benefits of taking testimony from a witness online – 11-min Video

The video below shows how an arbitrator can expedite the arbitration process by using the video collaboration software Zoom to take testimony from a witness, allowing him to:

  • Share documents
  • Draw on photographs
  • Show videos
  • Illustrate his expert testimony concerning a dryer fire

Free Webinar on Online Skills for Arbitration – Expression of Interest Form

https://goo.gl/forms/UUBF02vRD1vurXIg2

11-MIN VIDEO