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QUALITY CONTROL IN THE SOFIA DISTRICT COURT’S MEDIATION PROGRAM

REPORT AND RECOMMENDATIONS

HARVARD NEGOTIATION AND MEDIATION CLINICAL PROGRAM SPRING 2011

REPORT PREPARED BY EMIL ANDERSSON & SONIA VALLABH SUPERVISORS: STEPHAN SONNENBERG ROBERT BORDONE

CONTENTS

INTRODUCTION 1

HARVARD NEGOTIATION & MEDIATION CLINICAL PROGRAM 2

METHODOLOGY 3

KEY INTERVIEWS: 4 OPEN FOCUS GROUP DISCUSSIONS: 5

A LOOK AT OTHER SYSTEMS 6

1. 9TH, 13TH, AND 20TH JUDICIAL CIRCUITS, FLORIDA, USA 6 2. LJUBLJANA, SLOVENIA 10 3. FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA, USA 13 4. HARVARD MEDIATION PROGRAM, CAMBRIDGE MA, USA 17

THE MEDIATION PROGRAM IN SOFIA 21

PRELIMINARY DEFINITION OF QUALITY 22

RECOMMENDATIONS 24

1. INTERVIEW PROTOCOL 24 2. FEEDBACK FORM & PHONE FOLLOW-‐UP PROTOCOL 24 3. RESPONSE PROTOCOL 25 4. USE OF RESOURCES 25 5. STRUCTURED USE OF MONTHLY MEETINGS 26 6. CONSIDERATION OF A CO-‐MEDIATION MODEL 27 7. USE OF QUANTITATIVE DATA TO ANALYZE QUALITY 28 8. GOVERNANCE STRUCTURE 29

APPENDICES 31

INTRODUCTION Page 1 of 47

INTRODUCTION

The district court of Sofia (the Court) is a trial court with limited jurisdiction of Sofia, Bulgaria. The court has 115 judges and over 400 court employees. It is the biggest Bulgarian court receiving about 20% of all cases filed in Bulgaria. In 2009 the court developed a mediation program as a response to a change in Bulgarian procedural legislation stating that the courts should offer mediation for certain cases which in turn was prompted by an EU directive on mediation. The mediation program was set up in a short time and program recruited mediators by advertising for volunteer mediators. Everyone that applied was accepted into the program. As one effort in building a strong program the board of the mediation program has decided to try to set up en efficient system for initial and on-‐going control over the skills of the mediators and the quality of the mediations they handle.

This project aims at helping the court develop a sophisticated quality control program for the mediation program at Sofia: one that can serve as a model both nationally and even internationally.1

1 Parallel to this project, the district court has hired consultants to consider the organizational structure of the mediation program, how the number of mediated cases can be increased and to conduct training in mediation.

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of 47 HARVARD NEGOTIATION & MEDIATION CLINICAL PROGRAM

HARVARD NEGOTIATION & MEDIATION CLINICAL PROGRAM

The Harvard Negotiation & Mediation Clinical Program (HNMCP) provides Harvard Law School students with practical, real-‐world experience in the fields of negotiation, dispute resolution and conflict management, with a focus on conflict mapping and dispute systems design. Students in the program are paired with outside organizations, institutions or individuals who provide projects related to negotiation, dispute resolution or conflict management.

The goal of the HNMCP is to train a new generation of lawyers with the skills they need to help clients manage disputes efficiently and creatively. Through work with real clients, students gain a broader understanding of the contexts in which lawyers must apply critical negotiation skills to manage conflict and to design more effective processes for helping clients resolve disputes. In addition, students will develop a deeper understanding of negotiation theory.

Judge Evgeni Georgiev contacted HNMCP during summer of 2010 and developed a project plan together with Clinical Instructor Stephan Sonnenberg. In February 2011 the project was assigned to Emil Andersson (LL.M. candidate, 2011) and Sonia Vallabh (JD candidate, 2011)

METHODOLOGY Page 3 of 47

METHODOLOGY

We have set up the focus of the project as well as the methodology in an ongoing discussion with representatives from the mediation program.

Together primarily with Judge Evgeni Georgiev and Judge Tsveta Jeliazkova at the district court of Sofia we decided that that the project should focus on three main issues:

1. The initial selection and training process for individuals hoping to join the settlement centre’s roster of qualified mediators,

2. Ongoing monitoring, support, and feedback for the mediators to understand and proactively respond to quality control shortcomings, and

3. The process by which the program deals with underperforming mediators.

Please refer to the Appendices for a more detailed breakdown of the three main issues.

As an initial step, we looked at how other jurisdictions have handled quality control in court annexed mediation programs.2 We used the questions in Appendix A to analyze mediation programs in Florida, Ljubljana (Slovenia), California, and Massachusetts,3 setting up key-‐informant interviews with either program administrators or directors of the court-‐annexed mediation programs in each of the respective jurisdictions.4 The rationale for focusing on Florida, California and Massachusetts was these states’ history of court-‐ annexed mediation programs, and our sense from our initial research that these programs were well-‐functioning. We also looked at Ljubljana since Slovenia and Bulgaria are both countries with a common history of being in the former Soviet bloc, and since Slovenia set up mediation programs well before Bulgaria.

Using the above research on how court-‐annexed mediation programs are monitored for quality in other jurisdictions, we turned our attention to Bulgaria and the Settlement Centre in Sofia. Our methodology throughout this project was to use a bottom-‐up approach as we crafted recommendations for the Court. Thus, our first step was to identify those

2 This was originally intended as “best practices” research, but looking into the other court-‐annexed mediation programs, we soon realized they also were struggling with quality control issues and that calling the research “best practices” might therefore be misleading. Consequently, instead of a proper “best practices” section, this is a “snapshot of other program’s quality control efforts.” 3 We have also tried to get into contact with several German trial courts. In the few cases we have heard back from the courts, the response has always been that they do not have a court annexed mediation system. 4 Some of these persons have asked us to keep their identity secret.

of 47 METHODOLOGY

stakeholders who would be most impacted by a new quality control mechanism in Sofia. Upon initial consultation with our client, we decided that this list should include the stakeholders listed in the key interviews table below.

Next, we traveled to Sofia from March 14-‐17 to conduct one-‐on-‐one interviews and have open group discussions with a representative sample of the above stakeholder categories, see the table below.

Key Interviews:

We conducted interviews with members from each stakeholder group.5

Stakeholder Category Number of interviews with members of this stakeholder group:

Mediators 7

Judges at the District Court 3

Parties to a dispute 2

Counsel representing parties 10

Mediation program administrators 3

Members of non-‐profit organizations advocating for mediation in Bulgaria 3

Table 1: Stakeholder Groups Impacted by Sofia Court Annexed Mediation Program

The interviews were open-‐ended discussions with the intention of capturing the most important thoughts of each respective interviewee on the topic of quality control. All the answers have been treated anonymously. As a general framework we used the questions from Appendix A with a focus on those questions most relevant to each stakeholder group (see Appendix B).

5 In some cases a person could be placed in more than one group. When this has occurred, we have chosen to place the person in a group depending in what the main focus of the interview turned out to be.

METHODOLOGY Page 5 of 47

Open focus group discussions:

For the open discussions we sent out invitations to members of the different stakeholder groups. About ten people attended each discussion. The participants included mediators, judges and administrators. We had one counsel present for the second discussion and no parties present.

Open discussions were designed to spur thoughtful conversation not only about how to ensure consistently high-‐quality mediations at the settlement centre, but also on how to define “quality” in a mediation in the first place.

Throughout our field visit, and also subsequently – pending a more thorough analysis of our interview data – we were on the lookout for areas of agreement between the various interviewees to whom we spoke. In May 2011 we returned to Sofia with a distilled set of provisional recommendations on how best to manage quality control at the Settlement Centre, hoping first to subject these recommendations to the scrutiny of a similar set of representative stakeholders, and subsequently to consolidate them into this final report.

Our May stakeholder discussion consisted of roughly fifteen participants, including judges, mediators, lawyers, administrators, and party representatives. This facilitated discussion laid out the five key recommendation areas about which the March interviews had not revealed a consensus. These five areas were: co-‐mediation, incoming mediator interviews, post-‐mediation surveys, response protocol for underperforming mediators, and the governance structure of the quality control program. Feedback on these recommendations was solicited from participants, and points of controversy and potential challenge were noted.

of 47 A LOOK AT OTHER SYSTEMS

A LOOK AT OTHER SYSTEMS

As mentioned above, we began our consultancy by first analyzing the ways in which court annexed mediation programs in Florida, Ljubljana (Slovenia), California and Massachusetts approach quality control.

1. 9th, 13th, and 20th Judicial Circuits, Florida, USA6

Selecting for Competent Applicants

Providing Ongoing Supervision & Support

Responding to Quality Concerns

Legally structured, formalized and centralized

process.

Formalized and centralized system of gathering feedback.

Up to the administrator’s discretion.

(+) Clear criteria for applicants.

(–) No real qualitative

analysis of the applicants. (–) Evaluation of an

applicant’s skills is left to only one person.

(+) All members are required to complete eight hours per year of continuing education

(+/-‐) Complaints about

mediators must be in writing.

(–) Only negative feedback is

gathered

(+) Based on feedback from parties.

(–) Judgment on how to

respond is left to one person (court administrator).

Table 2: Florida court-‐annexed mediation program case study

1. Background

Whereas the mediation program in Sofia is barely three years old, the mediation program in the 9th judicial district has existed for 19 years. According to the rules of civil procedure in Florida, the chief judge of respective court has a large degree of flexibility in structuring

6 While we focused our research primarily on the 9th Judicial Circuit in Florida, we also focused on the 13th and 20th Circuits because of the rich history of mediation in Florida. Comments on these circuits have been inserted where appropriate.

A LOOK AT OTHER SYSTEMS Page 7 of 47

the mediation program.7 Depending on the type of case and the disputed value, the availability and type of mediators vary.

Mediation is voluntary. In small claims cases, which have a jurisdictional limit of up to $5,000 (~6,700 leva) the court always refer the case to mediation and offers an alternative dispute resolution program staffed by volunteer mediators. Mediation is free to the parties. For cases where the disputed value is between $5,000 (~6,700 leva) and $15,000 (~20,000 leva), the judges often recommend that the case be mediated, but the parties have to pay a fee for that mediation. Cases where the disputed value is even more are very rarely sent to mediation.

There are 50 mediators enrolled in the program, about 35 of them are on active duty and mediate on a monthly basis.

At any given day, the mediation program has about 100 cases on the docket. About 1/3 of them actually get mediated and about get 50% settled.

The mediation program is administered by a director and 8 employees.

While the 20th district has a very similar system with volunteer mediators, the13th judicial circuit does not employ volunteers; instead all of the mediators are paid professionals.

2. Selecting for Competent Applicants

Minimum requirements for the recruitment process are established in the Florida Rules of Civil Procedure.8 These minimum requirements state that anyone who has collected a certain amount of “points” can mediate cases. Points are collected for scholarly degrees, mediation training and observation of mediations.9

The 9th judicial district has decided that anyone with a high school diploma can apply to the voluntary mediation program after having gone through a 20-‐hour training program certified by the Supreme Court in Florida. According to the director of the program, there are very few applicants per year. She thinks this is due to the fact that few people are willing to volunteer. The court arranges one training session each year for free in addition to the different training programs offered by private organizations.

7 Florida Rules of Civil Procedure, Rule 1.710 8 Florida Rules for Certified and Court-‐Appointed Mediators, Rule 10.100. 9 Florida Rules for Certified and Court-‐Appointed Mediators, Rule 10.105.

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The applicants are interviewed by the director in an informal setting with the purpose of finding suitable persons that are not too “pushy.” The director alone decides on whom to admit. After the applicant is accepted, s/he must observe eight mediations before being allowed to mediate on his/her own.10 It has only happened once in the history of the program that a person got rejected after having been initially accepted as a mediator.

3. Providing Ongoing Support & Supervision

Florida’s 9th District seeks to ensure mediation quality primarily by having the director of the mediation program periodically observe mediators to ensure that they are doing a good job.

The only other feedback pathway consists of a party or counsel contacting the program to complain about a mediator. If that happens, they are sent a form from the mediation program administrator, see Appendix C. The form asks the respondent to answer questions on whether the mediator provided a clear explanation on what mediation is, if the mediator was impartial etc. There is also room on the form to provide general feedback. If a filled-‐in form is returned to the court, the Director automatically sends a letter of apology to the parties involved, and subsequently sits down with the mediator to discuss the critique.

All mediators with the Florida program also have to participate in eight hours of training each year offered by a Florida Supreme Court certified instance. In addition to the necessary training, the administration periodically arranges for talks and roundtable discussion.

The 13th Judicial Circuit in Florida collects comments from parties twice a year; once in April and once in October. This is done by handing out feedback forms to passers-‐by directly outside the mediation rooms in the hopes that this will result in a representative sample. The 20th Judicial Circuit in Florida casually collects feedback by occasionally having someone from the administrative staff present outside of the mediation rooms looking for parties who seem displeased with the procedure.

4. Responding to Quality Concerns

As mentioned above, the Director of the mediation program in the 9th Judicial Circuit in Florida initiates a discussion with a mediator whenever a written form is returned by either a party or counsel to a past mediation. The purpose of that conversation is to discuss

10 According to the Florida Rules for Certified and Court-‐Appointed Mediators, points can also be collected for having a certified mediator supervising a mediation, this was however not mentioned during the interview.


the critique. Before the meeting, the mediator would be given a copy of the returned form, so as to better prepare for the conversation. In this discussion would lead to the Director dismissing the mediator from the list of eligible mediators. According to the Director of the program however, this recourse is rarely used. In recent years these discussions have never once led to the termination of a mediator.


2. Ljubljana, Slovenia

1. Background

The Ljubljana district court in is the biggest court in Slovenia with about 7,000 cases eligible for mediation each year.

The mediation program started 2001 in the district court of Ljubljana to reduce the case backlogs. In 2010, in response to the EU legislation, Slovenia enacted a mediation legislation providing for mediation in all courts of the country.




Highly structured and formalized application process, based on pre-‐determined criteria

Formalized system of gathering party feedback and periodic co-‐mediations

Relatively informal but centralized system.

(+) Has many applicants. (–) A lot of time is spent on

the recruitment process. (–) Added complexity since

the system monitors for financial motives.

(+) All members are required to complete 16 hours per year of continuing education

(+) Feedback collected from a range of different stakeholders.

(+) Periodic co-‐mediations allow director to get a personal sense of how mediators are doing.

(+) Focuses on how much

work the judge has to do.

(+) Underperforming mediator given the chance to demonstrate his/her skill during co-‐mediations with the director

(–) The function is centralized

to one person.

Table 3: Ljubljana court-‐annexed mediation program case study


The mediation program in Ljubljana is handles civil cases, family matters and commercial cases, and each type of case are administered separately. Parties in commercial cases pay for their cases to be arbitrated, however apart from this, mediation is free.11

Out of approximately 7,000 cases that could potentially be referred to mediation, 5,598 were referred to mediation in 2010 (the parties accepted to mediate in 1,557 cases, and 776 cases in total were removed from the docket (accounting also for instances where parties filed several suits to address different but related grievances with another party).

At the moment about 50 mediators participate in the mediation procedures at the District Court in Ljubljana. Before the 2010 law on mediation, all mediators in Ljubljana were judges or lawyers, however following these reforms the entry requirements have been relaxed somewhat. Today all mediators need to possess a university degree somehow related to dispute resolution, but are no longer required to have a law degree.

On average each mediator mediates 2 to 3 cases per week. The program is administrated by a staff of 4 persons.

2. Initial selection and training process

In stark opposition to the mediation programs we learned about in Florida, the program in Ljubljana seems to have little trouble recruiting new mediators. During 2009, after an initial round of pre-‐selecting suitable candidates based on their resumes and formal education, the director held over 107 interviews, ultimately selecting a class of 37 incoming mediators. The selection process was based on their CV, recommendation letters, their education, and the “general feeling” that the director had upon interviewing the candidates.

Before even applying to the program, all applicants must also successfully complete a 40 hour basic training course. Before 2006 the court organized this training itself, however it has since outsourced responsibility for this training to private training companies.

An additional assessment criterion for applicants to the Ljubljana mediation program is the extent to which they are motivated financially to mediate. In Slovenia, mediators are paid 70€ (~140 leva) for every half-‐hour of mediation and 100€ (~200 leva), for every settlement reached. Given the potential for conflict of interests between neutrality and pushing for a higher settlement rate, the program administrators in Ljubljana pay

11 Since the reforms in 2010 when parties in commercial cases had to start paying for arbitration, the court experienced a slight decline in use of the commercial arbitration.

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particular attention to ensure that incoming mediators are not motivated by financial considerations.

After the mediators have been accepted to the program, they must then observe two mediations and successfully co-‐mediate a case before they can mediate on their own. The co-‐mediator in these initial mediations gives feedback to the applicant and writes a report to the director. If the co-‐mediation is not “good enough” according to the co-‐mediator, another co-‐mediation with the director has to be preformed, however according to our interviews this has only happened twice in the program’s history.

3. Ongoing monitoring and feedback

The mediators are required to participate in additional training of 16 hours each year. The training is handled by private organizations and without the influence of the court.

The director is generally responsible for measuring the quality of the mediations in Ljubljana. She does so by looking at the settlements produced, assessing whether a judge has to substantially change the agreement or whether s/he can simply affirm the settlement “as is.” In addition, the mediators are required to participate in co-‐mediations once or twice per year with the director.

Mediators, parties and their lawyers are all given separate feedback forms to fill in while the judges study the mediation settlement and decide whether or not to affirm or amend it. The total response rate for these feedback forms is about 30 %. In these surveys, mediators are asked whether the parties to the case were “difficult,” whereas the parties are asked about their satisfaction with the process, and the lawyers are asked to share their opinion on mediation as a dispute resolution methodology.

4. Response protocol

The relationship between the mediators and the administration in Ljubljana is described as very close. According to our interviewee, if ever there is a problem with a mediator, the director sits down with that mediator to discuss the problem. Thereafter the mediator co-‐mediates with the director of the program once or twice. However, we were also told by our respondents that the system has little experience reacting to under-‐performing mediators since this has not yet been a major issue for the program.

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3. Federal District Court of the Northern District of California, USA




Highly formalized system for admitting mediators

Formalized party feedback solicited; Extra support for new mediators as part of the

program.

There is a protocol, but the steps hinge on the

administrators’ discretion.

(+) All applicants submit three references who can speak to their listening skills and emotional intelligence.

(+) Intensive training is mandatory for all mediators.

(–) Rigid application criteria

limits mediators to mostly lawyers.

(+) New mediators co-‐mediate their first three cases.

(+) New mediators choose between having a mentor and participating in a monthly discussion group.

(+) In addition, all members are required to do three hours per year of continuing education.

(+) Parties fill out a post-‐mediation questionnaire which is reviewed by the administrators.

(+) Thanks to high barriers to entry, problems with mediator quality are rare.

(–) When problems do arise,

there is no protocol; the administrator decides how to respond.

1. Background

The Northern District of California Federal Court has an “ADR multi-‐option system,” under which there is a presumption written into the rules for every mainstream civil case that the case will involve some form of ADR during its lifeline. Parties are given a timeframe in which to stipulate one of the ADR options (which include mediation, early neutral evaluation, and non-‐binding arbitration) or to schedule a phone consultation with one of the ADR program administrators to choose the best-‐suited option. In situations where the parties refuse to choose an option, a judge can also order one. Of all the ADR options, mediation is the most popular.

All cases come into the program by court order. They are then assigned to a mediator on the roster according to a generalized subject matter match. If the designated mediator isn’t a lawyer, the court requires that parties give express approval. Any civil case is eligible for mediation.

The cases are often high-‐stakes and complex, and mediations last an average of six hours, sometimes spanning multiple sessions (as opposed to the roughly forty-‐five minute sessions in many small claims settings.) Lawyers typically take a very active role in these mediations. Though parties also are technically required to attend the mediations, there


exists a procedure to allow parties to appear by telephone as long as their lawyer is present.

Mediators work on a volunteer basis with some provision for compensation if the case is unusually long. The ADR program as a whole is administered by a staff of three full-‐time lawyer-‐mediators.

There are about 250 mediators on the roster, and approximately 775 cases are filed per year. Though not every case that gets referred is ultimately mediated (in some cases, the parties settle on the phone or somehow else on their own), a large number of these do end up in mediation.


The Alternative Dispute Resolution Act of 199812 was modeled after the system that already existed in the Northern District Court of CA. This legislation provides full authority for the ADR Program and grants courts the authority to set forth standards in local rules. Though the court has set some rules, training and quality control issues fall largely to the program administrators to determine.

Because parties in federal court are almost always represented by counsel, the administrators believe that most of the mediators on the roster should be lawyers. To increase the size of the roster, the program periodically announces openings for new applicants, and always receives more potential applicants than it can admit.

12 28 USC 651 (1998).


The basic application requirements are:

1. Mediators, if lawyers, must have been admitted to practice in California for at least seven years.

2. Mediators must have strong mediation process skills. All applicants, regardless of previous experience, must demonstrate good listening skills and high emotional intelligence. This is investigated by calling the applicant’s references.

3. Everyone, regardless of prior experience, must complete the court-‐sponsored training course: a 40-‐hour, 4-‐day standard mediation training that involves a mix of small group work, role play simulations, mini lectures, and other exercises. This training was once run by the Harvard Program on Negotiation, so it bears many similarities to the Harvard Mediation Program training.13 However, it is now run by program administrators of the CA mediation program.

The three administrators are the lead trainers for every training. Together they review the applications, make recommendations as to who should be admitted, and teach the training classes. Mediators are technically admitted by the chief judge of the court, after he or she reviews the administrators’ recommendations.


In California, all new mediators co-‐mediate with an administrator or more experienced member for their first three cases.

During a mediator’s first year, in addition to the co-‐mediation requirement, the mediator must either enter a mentorship relationship with a more experienced mediator or join a “practicum.” Practicums are small groups of mediators that meet monthly to present and discuss the cases on which they’re working. These meetings are supervised by an administrator. Currently there are 7 practicum groups and between 70 and 80 mediators belong to one of them.

In addition, each mediator is required to do three hours of continuing education per year. To satisfy this requirement, mediators can participate in practicums, brown bag lunches, or continuing legal education on an ADR topic. Additionally, each mediator is asked to do ten hours of background reading on an ADR subject each year.

13 This may be relevant to the RCS as its mediators have also participated in multiple trainings run by the Harvard Program on Negotiation.

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The program also solicits party feedback through questionnaires that are mailed out to parties after their case has been resolved. Parties mail their feedback directly to the program administrators.


If a mediator receives a very low rating on any measure (1 or 2 out of 5), the administrators will follow up with that mediator. The follow-‐ up includes the following steps:

1. The administrator carefully reviews the questionnaire for more info, to determine if the criticism is valid.

2. If it is a serious criticism, the administrator phones the lawyer on both sides to ask more about what happened. (it is rare for the administrators to actually talk to the parties in follow up.)

3. The administrators might at that point have a conversation with the mediator, either over the phone or in person.

4. The administrators might also keep an eye out for future trouble, depending on the mediators overall ratings over time.

5. Finally, they might arrange to have the mediator observed by one of the administrators.

Since surveys are confidential, parties’ consent must be obtained by phone in order for the program administrator to talk to the mediator about specific results. Rather than obtaining that permission, therefore, it is oftentimes more convenient for the program administrators to simply observe the mediator’s behavior going forward. All of these decisions are discretionary and context-‐specific; typically made on a case-‐by-‐case basis.


4. Harvard Mediation Program, Cambridge MA, USA

1. Background

HMP has roughly 200 members, though in a given semester only about 75 members are actively mediating. Mediators deploy to one of six small claims courts in the greater Boston area, and are trained to use a facilitative style of mediation. Small claims courts in Massachusetts hear disputes up to a $7,000 (~9,400 leva) The number of cases varies dramatically from week to week and across courts. Parties choose whether or not they are interested in trying mediation. All mediators are volunteers, and mediation is free to parties.

HMP has a paid administrative staff of three, including the Clinical Supervisor. It also has a board of fifteen students and two community members that is reelected on a yearly basis and meets every month. Among other positions the board includes a president and vice-‐president, two recruiting directors, and three training directors. In addition, for each of the six local small claims courts that HMP serves, the program has a volunteer court liaison.




Highly formalized system for admitting mediators

Regular feedback collected from parties; extra support for all mediators built

directly into the program.

Formal system for addressing problem

mediators.

(+) The interview process for all applicants includes a mock co-‐mediation and one-‐on-‐one interview.

(+) Intensive training is mandatory for all mediators.

(–) Program’s history, physical

location, and funding require it to accept primarily law students as mediators.

(–) Relatively resource-‐intensive.

(–) Relies heavily on student volunteers.

(+) Co-‐mediation model, where new mediators are paired with experienced mediators

(+) Routine observations by program staff.

(+) Mediations followed by group debrief sessions

(+) All members required to complete six hours of continuing education per year.

(+) Parties fill out a post-‐mediation questionnaire.

(+) Parties are later called for more detailed follow-‐up.

(–) Relies heavily on student volunteers.

(+) Formal observation period, during which mediator can validate him/herself.

(+) Process triggered by a more senior mediator who knows the mediator well.

(+) Following the observation period, decision on whether to retain the mediator made by panel, not one individual.


This liaison, in addition to being the lead mediator at that court, manages court logistics and relationships.


The State rules governing neutrals are set forth in the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution.14 The rules establish a floor for quality control in court-‐annexed mediation programs, but they provide little guidance about how to organize a quality control system. As in our other case studies, these details are left to be managed by the program locally.

The Harvard Mediation Program (HMP) has an elaborate selection and training process that constitutes a large part of its quality control system. Trainings occur twice per year, and are organized by HMP. Interested students and community members can apply in the weeks preceding the training. An application consists first of a brief written application, which is reviewed by HMP’s recruiting directors for their commitment to the use of mediation as a lower-‐cost, higher-‐satisfaction way of resolving disputes. Applicants who pass through this initial screening are asked to appear for a one-‐hour interview. During the first forty minutes of that interview process, applicants are paired together to co-‐mediate a mock dispute acted out by two existing HMP mediators. For the last twenty minutes, applicants are then individually interviewed for roughly 15 minutes. In these interviews, the existing mediators ask them again about their motivation for joining the program, any past experience mediating, and their ability to fulfill the program requirements.

After these interviews, all HMP interviewers are given a rubric according to which they can rank the applicants to whom they spoke, rating their active listening skills, body language, perceptiveness, emotional intelligence, facility with a co-‐mediation model, receptiveness to feedback, and ability to act on that feedback. After submitting their evaluations, the interviewers gather jointly to debrief the interviews and decide which twenty-‐four applicants to admit into the program that semester. The decisions are collaborative, but ultimately made by the program’s Recruiting Directors.

Applicants who show strong natural talent for facilitation (rather than evaluation), active listening, and co-‐mediation in their interviews are strongly preferred. Even if an applicant does not naturally demonstrate these qualities, if they are able to respond productively to feedback midway through the mock mediation, they are highly rated.

14 Mass. S.J.C Rule 1:18.


Once selected, all applicants must complete HMP’s 32-‐hour mediation training. That training is broken down into modules (short interactive lectures delivered by veteran HMP members) and role plays (in which trainees break into foursomes, with two co-‐mediators attempting to resolve a mock dispute between the other two trainees.) Veteran mediators are present throughout the training with feedback and coaching, and at the end of the training they also submit written observations to the Training Directors in which they comment on whether the trainees they observed are “on track” or “need more help.”


HMP believes that a system of co-‐mediation and institutionalized review of each mediation contributes significantly to its ongoing quality control efforts. All HMP mediations are done by a team of two co-‐mediators. Additionally, (regardless of their experience level) HMP mediators also spend time after each mediation reflecting on how the experience went and giving one another feedback. Mediations are also frequently observed by another HMP member, the court liaison for that court, and/or by the Clinical Supervisor, and these observers also give their feedback during the post-‐mediation review session.

In their first semester, the more senior co-‐mediators and program administrators pay particular attention to the performance of the new mediators. They typically watch for the most important aspects of HMP’s model of mediation: ensuring the self-‐determination and informed consent of the parties, and the neutrality and facilitative style of the mediator. The program places a heavy emphasis on giving new mediators thorough feedback and helping them to improve on any perceived weaknesses. At the end of the semester, each new batch of trainees has a “graduation ceremony” during which s/he receives a certificate as a mediator.

Parties are also given a feedback form immediately after each mediation, whether or not it results in a settlement. This form asks whether the case settled, whether the parties are happy with the outcome, whether they felt empowered to make their own decisions in the mediation, whether they would recommend mediation to others, and whether they are willing to be contacted for further feedback. If they are willing to be contacted (and most parties are), a mediator from HMP will call sometime in the next few months to ask them follow-‐up questions, including -‐ if the case settled -‐ whether the agreement was upheld by the other party.

All HMP members are required to complete six hours of continuing education per year, which can include helping with interviews or training, brown bag lunches, advanced trainings, or ADR-‐related coursework.



Because HMP is such a selective and training-‐intensive program, with intensive feedback built into training and following each mediation, it is rare for the program to have a serious quality problem with a mediator.

There is, however, a formal procedure for dealing with these rare problems. When a court liaison expresses concern about a mediator, that mediator is subject to a period of review. After consultation with the liaison, the staff and HMP President inform the mediator in writing of the review period. The mediator’s next two mediations are then observed. Within two weeks of the second observation, the HMP staff and President initiate a decision-‐making process with the HMP board, then arrange a meeting with the mediator to inform him or her of the results of the review and whether their membership will be renewed at the end of that semester.

THE MEDIATION PROGRAM IN SOFIA Page 21 of 47

THE MEDIATION PROGRAM IN SOFIA




No consistently applied criteria for selection.

Feedback solicited from parties; self-‐organized monthly discussion meetings between

mediators.

Ad hoc system supervised by a panel of judges overseeing

the program.

(+) Mediators are interested in assuming an active role in quality control.

(+) High public interest in mediation should provide a large applicant pool.

(–) No qualitative control of

applicants.

(+) Acceptance of qualitative review standards in evaluating mediators.

(+) Mediators’ discussion groups are a valuable source of ongoing support.

(–) No agreement among

stakeholders about what feedback is most relevant.

(–) Low response rate on forms.

(–) No central locus to organize and evaluate feedback.

(+) Process not dependent on one individual.

(–) Time intensive process (–) Only judges play a role in

this process; no mediator voice.

of 47 THE MEDIATION PROGRAM IN SOFIA

Preliminary Definition of Quality

As a part of the open discussion we examined what participants considered to be “good mediation.” As a tool to try to capture the opinions we used a grid for mediators’ orientations developed by Leonard L. Riskin (see below, figure 2).15 The grid aims to map mediator behavior in relation to how narrowly (e.g. the litigated issue) or broadly (e.g. community interests) the mediator defines the problem and how evaluative (willing to give own opinions etc.) or facilitative (willingness to “let the parties decide”) the mediator is.

Figure 2: Riskin Mediator Behavior Grid

The participants expressed various views when they discussed good mediation. However, there seemed to be consensus about wanting to differentiate mediation from litigation. One participant expressed that “mediation should be something else than what happens in the court.” When asked where on Riskin’s grid the participants would place a “good mediator,” everyone agreed that a good mediator would practice a facilitative and broad mediation style (see below, figure 3).

15 Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed 1 HARVARD NEGOTIATION LAW REVIEW at 8 (1996).

THE MEDIATION PROGRAM IN SOFIA Page 23 of 47

Figure 3: “quality mediation” as defined by Sofia stakeholders

In terms of quality control this is a relevant finding since a preference for an evaluative-‐narrow approach might have prompted a stronger focus on quantitative data while a preference for a facilitative-‐broad approach might have the quality control system focus more on qualitative measurements.

of 47 RECOMMENDATIONS

RECOMMENDATIONS

What follows are the recommendations generated as a result of our various stakeholder interviews and focus groups. In drafting these recommendations, HNMCP endeavored to take into account the various interests, needs and concerns of the various stakeholder groups we met while in Sofia. Ideally, therefore, these recommendations will find broad approval across the stakeholder categories, while also advancing the common goal of ensuring high quality mediations at the Sofia Mediation Centre.

1. Interview protocol

We found that RCS currently does not use an interview protocol to interview incoming mediators. To ensure consistency in hiring standards, especially over time, we found that it would be helpful for there to be one common script according to which all mediators might be evaluated.

We also found that it would be highly beneficial for the interview process to involve current mediators, as a way to give them some co-‐ownership over their own community of practitioners and incentivize them for their ongoing commitment.

See:

Appendix F (p. 41): Mediator Interview Instructions

Appendix G (p. 45): Mediator Interview Rubric

2. Feedback form & phone follow-up protocol

RCS currently uses a post-‐mediation survey for parties. Currently, however, the response rate for post-‐mediation surveys is low. One frequently reported reason for this low response rate is that parties are often unwilling to fill out a long evaluation form following their mediation, when typically they are quite keen to leave the Mediation Centre.

We therefore recommend breaking the survey into two parts: a short and long version. We recommend having parties fill out the short survey (see Appendix D) at the end of mediations, before they leave, handing the completed survey in a sealed envelope to the Mediation Program Administrator in the RCS Information Centre on the ground floor of the Mediation Centre. This survey asks only a few questions, but then asks whether the party would be willing to be contacted by phone for further follow up.

RECOMMENDATIONS Page 25 of 47

In this way, the program can increase its information yield on the few essential questions posed in the short survey, and collect the more detailed information only from those parties amenable to a phone follow-‐up. This detailed feedback will likely be more fully captured through a conversation than on a paper form.

See:

Appendix D (p. 37): Short Survey

Appendix E (p. 38): Phone Follow-‐up Protocol


Generally speaking, the new sub-‐committee on mediator quality (see below, p. 29) will be responsible for evaluating complaints about mediators. These complaints may come in the form of:

1. post-‐mediation surveys; 2. phone follow-‐up with parties; 3. co-‐mediator complaints; 4. judicial complaints about parties returning to court more agitated as a result of the

mediation than they were when they first appeared;

The quality control sub-‐committee must determine criteria for what level of complaint merits follow-‐up, and what kind of follow-‐up should ensue. For short-‐form evaluation surveys and phone follow up data, the sub-‐committee should decide under what conditions a complaint should be passed along to the sub-‐committee, whereas for co-‐mediator complaints and judicial complaints, cases will be passed along directly to the sub-‐committee.

4. Use of resources

During our research, we found that the RCS mediation program currently has several insufficiently utilized resources that might be harnessed to drive a quality control process. For example, we found that the mediators serving as “mediator on duty” often have a great deal of spare time between mediations. Furthermore, most mediators we spoke to expressed to us their interest in getting more involved in the program, e.g. by interviewing applicants to the program or calling up past parties to solicit feedback about their experiences with mediation.


We recommend that full use be made of the mediators on duty. Specifically, these mediators could be given the tasks of (i) calling and interviewing parties about their experiences in mediation, and (ii) helping to plan the logistics for the monthly meetings. Such help could include everything from coming up with topics for the meetings and gathering material for the meetings to being responsible for an entire meeting by themselves.

We have been informed by Judge Evgeni Georgiev that the program might exchange mediators on duty for interns. Should the “mediator on duty” be exchanged for an “intern on duty,” the intern could potentially, with some instructions, carry out the same tasks.

Should our recommendation be implemented, the program would be able to gather more qualitative feedback from parties and potentially set up even better monthly meetings at no additional cost to the program.

5. Structured use of monthly meetings

The program currently holds monthly meetings for the mediators. The program administrator schedules the meetings and chooses a topic for each session.

During our interviews we found that the mediators are highly appreciative of these monthly meetings. Mediators we spoke to reported that these meetings were helpful for learning new things about mediation and sharing experiences. Furthermore, and more importantly, different mediators expressed to us slightly different views on what constitutes quality in a mediation and which are the most important skills for a mediator to cultivate, and these monthly meetings provide a useful forum in which the mediators themselves can begin to form the mediating ‘culture’ of the RCS mediation program.

We recommend that the mediation program continue its monthly meeting program and in fact reinforce the value of those meetings by structuring a conscientious curriculum for these meetings. We suggest that the meetings focus on two main areas:

1. Skill building, 2. The creation and maintenance of a shared view of what constitutes “quality” in a

mediation.

We recommend that the program administrators and the mediators jointly develop the content of these monthly meetings.


As for the skill-‐building aspect, we recommend that the mediators should be asked in an ongoing discussion what skills they most want to focus on, and individual mediators could be asked what their strong skills are and where they could be especially helpful to the group.

Regarding the discussion about ‘quality’ in a mediation, we recommend a discussion on “what is good mediation” in different situations as a periodic theme for the monthly meetings.

Should our recommendation be implemented, the program would be able to use the monthly meetings to provide an ongoing forum where interested mediators can share their experiences and learn from one another, thereby facilitating an informal yet powerful quality control process. Even better, this recommendation should require no additional resources from the program since it is already something the program does on a regular basis.

With time, attendance at a minimum number of these monthly meetings might also allow the program to institute a “continuing education” requirement for all existing mediators as part of its quality control program.

6. Consideration of a co-mediation model

During our interviews many -‐ but not all -‐ mediators expressed a wish to co-‐mediate more often. Those mediators who were enthusiastic about the idea mentioned that this model would be helpful during the mediation, and also provide them with an opportunity to learn through feedback. Other mediators, worried that co-‐mediation might hamper the mediation process if there were an imbalance between the two mediators, and if the mediators had to first discuss all the procedural moves with one another rather than simply acting on impulse.

From what we have seen in other jurisdictions, only the HMP program insists on co-‐mediation for all mediations. That said, we also find a heavy reliance by all programs on co-‐mediation as a major quality control (and teaching) mechanism for new mediators. We thus suspect that especially in the case of new mediators, a co-‐mediation model increases both the quality of individual mediations and the quality of the program as a whole by serving as a learning mechanism.

We therefore recommend that the RCS mediation center also offer all mediators the option to co-‐mediate, and make co-‐mediation the norm for all new mediators. This resonates with


the general wish among mediators to be more involved in the program and to mediate more often. By not making co-‐mediation mandatory, the program could preserve the option for skeptics to opt-‐out.

Because of the availability of mediators and the general wish among mediators to be more involved, this recommendation could be implemented at basically no cost to the program.

See:

Appendix H (p. 47): Co-‐Mediation Review Form

7. Use of quantitative data to analyze quality

Prior to May 2011, the program administrators collected data on the number of cases referred to mediation and the number of cases settled. In addition to this, data on respective mediation sessions was also collected, e.g. what type of case it was, and how much time was spent mediation the case.

From the interviews it is clear that the judges desire quantitative data on how many of the cases they refer to the Mediation Centre ultimately settle. Even those judges who appreciated the inherent value of mediation still desired to see data on the Mediation Centre’s potential to allow them to clear their massive case backlogs. However, while this kind of quantitative data is clearly an important aspect of a quality control mechanism, it also became clear from our interviews and our May stakeholder discussion that it alone cannot be a sufficient quality control measure. Instead, qualitative measures must be added to the data gathering strategy in order to give a complete picture of how well the mediators are doing.

The short-‐form mediation evaluation survey (Appendix D, p. 37), along with the more detailed telephone follow-‐up protocol (Appendix E, p. 38) reflect this balance between qualitative measures (such as settlement rates) and more qualitative measures of mediation quality (such as the mediator’s ability to listen).

See:

Appendix D (p. 37): Short Survey

Appendix E (p. 38): Phone Follow-‐up Protocol


8. Governance structure

During our interviews we learned that some mediators would like to see increased influence of the mediators in the governance of the mediation program. Many of the mediators we spoke to felt that although the program was run by mediators, and although most judges recognized that what mediators do is different from the work of judges, they wished that not only the judges would have a say in the maintenance of the program’s overall quality. Furthermore, given the substantial influence that lawyers typically have on their clients, lawyers also expressed the view that they would feel a lot more comfortable recommending to their clients that they use mediation if they knew that lawyers (broadly speaking) also had some voice ensuring the quality of the program.

This view was repeated for us again during our May stakeholder discussion. In fact, there seemed to be an emerging consensus among the parties present that there should be a sub-‐committee formed – preferably with co-‐equal representation of judges, mediators, and possibly representatives of the Sofia bar – that would be responsible only for ensuring the quality of mediations at the Mediation Centre. This sub-‐committee would be accountable to the existing commission in charge of the overall administration of the Mediation Centre, but in contrast to that commission, it would afford not only judges the ultimate vote in key decisions. Instead, the decisions would be made jointly by one representative judge, one representative mediator, and one representative member of the Sofia Bar Association.

According to the various stakeholder discussions we had during the spring of 2011, we recommend the following provisional mandate for this quality control sub-‐committee:

1. To receive and pursue complaints about mediator quality in a timely manner:

a. To promulgate criteria for what would trigger immediate dismissal of the mediator (as opposed to a more collaborative response)

b. Barring such immediate dismissal, to develop a response protocol providing support and guidance to the mediator in question (see above, p. 25);

2. To manage the interviewing and selection process for new mediators:

a. To develop mock mediation scenarios for use as part of the interview process. b. To come up with one-‐on-‐one interview questions that will be asked of

applicants during the interview process c. To organize and run the actual interviews of potential applicants

3. To communicate key decisions and policies back to each representative’s respective constituency


We believe that in order for this sub-‐committee to come into existence, every stakeholder group represented needs to self-‐organize, in order to determine a legitimate process by which their representative is nominated to the sub-‐committee. This process should be designed so as to appear legitimate not only within that stakeholder group, but also to members of other stakeholder groups.

APPENDICES Page 31 of 47

APPENDICES

# Title Page

A Project Dashboard p. 32

B Our Methodology p. 33

C Form from 9th Judicial Circuit,

Florida United States of America

p. 36

D Short-‐form mediation evaluation

survey

p. 37

E Telephone Follow-‐Up Protocol p. 38

F Mediator Interview Instructions p. 41

G Mediator Interview Rubric p. 45

H Co-‐Mediation Review Form p. 47

of 47 APPENDICES

APPENDIX A: PROJECT DASHBOARD

Figure 4 (below) lays out the HNMCP consultancy in terms of these three quality control arenas, with relevant questions that need to be answered in order to provide the Court with substantive guidance.

Figure 4: HNMCP project “dashboard”

Can the court improve the quality of the mediation system by implementing quality

control systems for: A more structured initial selection and training process. • Who shall the court admit as a mediator? • Can the skills of an applicant be measured, if so how? • Should the training of the mediators be tailored to the individual’s skill level? • Would co-‐mediation be helpful during the tirst mediations? • Should the new mediators be subjected to an initial review period?

A system for ongoing monitoring of and feedback to the mediators. • Can feedback from parties provide qualitative general information for evaluation? • What information should be gathered from the parties? • Can statistical analysis be used? • Can feedback from the parties be effectively obtained? • Could co-‐mediation enable in-‐depth analysis of and feedback to the mediators? • What level of outside resources are required for a quality control system to work?

A response protocol for the mediators. • How should mediators be informed of the results of their evaluations? • How should mediators who do not meet program standard be addressed? • How might a consistent evaluation and response protocol look like?


APPENDIX B: OUR METHODOLOGY

Figure 5: Primary interview questions for mediators and judges


control systems for: A more structured initial selection and training process. • Who shall the court admit as a mediator? • Can the skills of an applicant be measured, if so how? • Should the training of the mediators be tailored to the individual’s skill level? • Would co-‐mediation be helpful during the birst mediations? • Should the new mediators be subjected to an initial review period?



of 47 APPENDICES

Figure 6: Primary interview questions for parties and representing counsel






Figure 7: Primary interview questions for the mediation program administrator





of 47 APPENDICES

APPENDIX C: 9TH JUDICIAL CIRCUIT MEDIATION FEEDBACK FORM

DISPUTE RESOLUTION SERVICES ORANGE COUNTY MEDIATION PROGRAM

The Orange County Mediation Office would like to continue to improve our mediation program. Your comments are important. Please answer the questions, and provide us with your opinion of the mediator and/or the program.

Case No. ________________ Name _______________________________________ (optional)

I am a ______ Petitioner/Plaintiff _______ Respondent /Defendant

Mediator's Name(s) ____________________________________________________________________________

1. Did the mediator provide a clear explanation of the process of mediation including impartiality, confidentiality, and that the process is voluntary? (circle one) YES NO

2. At any time did the mediator inform you as to how the judge would decide this case? (circle one) YES NO

Please circle your answer with (1) representing UNSATISFACTORY and (5) VERY SATISFIED

3. How impartial was the mediator(s)? 1 2 3 4 5 (Very)

4. How well did the mediator keep the session directed at the main issues of the dispute? 1 2 3 4 5 (Very)

5. How satisfied are you with the mediation and how it was handled? 1 2 3 4 5 (Very)

6. If you did reach an agreement, how satisfied are you with the terms of the agreement? NOT APPLICABLE 1 2 3 4 5 (Very)

7. If you did not reach an agreement, how satisfied are you that the mediator did everything possible to assist you in settling your case? NOT APPLICABLE 1 2 3 4 5 (Very)

8. Why do you feel your case did not settle? (circle one) a. complex legal issue b. the other side was stubborn c. not enough time d. the mediator e. hostility between the parties

9. If you became a party in a dispute in the future, would you want to mediate again? (circle one) YES NO

10. Did you encounter any problems with the mediation office and staff? (circle one) YES NO

Please put any comments on the back of this form or on separate paper. May we share your comments with the mediator? (circle one) YES NO Please return to: Genie Williams, Dispute Resolution Services, 425 N. Orange Avenue, Room 120, Orlando, FL 32801, or fax to (407) 836-‐2367, or email comments to: [email protected]


APPENDIX D: SHORT FORM MEDIATION EVALUATION SURVEY

Please take a few minutes to fill out this form before you leave today, and leave it with the court coordinator (Lychezar Nasvadi -‐ tel 8955423).

Your responses will serve as our guideline for changes or improvements to be made to the Settlement Program of the RCS.

Date:

Names of mediators who have worked with you:

1. Please rate the performance of the mediators in the following areas. Circle one answer per line.

2. Was there anything else notable about the mediation or the mediator’s performance that you would like to share with the program administrators/

3. Are you willing to be contacted for further feedback?

The Mediation Center is a new program, and we are hoping to keep the quality of the mediations consistently high. For this reason, we would love to get some more detailed feedback from you on what is working well, as well as areas where we may need some further improvement. We thank you in advance for your time and insights.

(a) Yes. Phone number: ________________________________________________________

Best hours to contact: ___________________________________________________

(b) No.

Mediators…. Very Poor Poor Average Good Excellent No opinion

a. Behaved impartially towards all parties 1 2 3 4 5 -- b. Helped us find realistic options to resolve the dispute

1 2 3 4 5 --

c. Helped us generate creative options that we would not have discovered on our own

1 2 3 4 5 --

d. Earned our trust 1 2 3 4 5 -- e. Did not impose their own opinions on us 1 2 3 4 5 -- f. Observed confidentiality 1 2 3 4 5 --

of 47 APPENDICES

APPENDIX E: TELEPHONE FOLLOW-‐UP PROTOCOL

Please take a few minutes to fill out this form before you leave today, and leave it with the court coordinator (Lychezar Nasvadi -‐ tel 8955423).

Your responses will serve as our guideline for changes or improvements to be made to the Settlement Program of the RCS.

Date:

Names of mediators who have worked with you:

1. Has the mediation led to a resolution of the dispute?

a. Yes b. Partial settlement c. No

2. How long was the mediation process, and how many meetings did it involve?

3. Did you learn more about the needs and interests of the other side that need to be addressed before this dispute can be resolved?

a. Yes b. No

4. Did you feel any positive changes in the communication with the other party?

a. Yes b. Partially c. No

Please specify:

____________________________________________________________ ____________________________________________________________


5. Please rate the performance of the mediators in the following areas. Circle one answer per line.

6. Please indicate you level of agreement with the following statements. Circle one answer per line.

7. If you have a future dispute, you will try again to resolve it through mediation?

a. Yes b. No

8. Would you recommend mediation to other people?

a. Yes b. No

Why, or why not?

____________________________________________________________ ____________________________________________________________


a. The mediator explained the mediation process to me, and answered any of my questions to my complete satisfaction.

1 2 3 4 5 --

b. I felt comfortable during the mediation. 1 2 3 4 5 -- c. The mediation process was fair. 1 2 3 4 5 -- d. I was able sufficiently to speak my opinion. 1 2 3 4 5 -- e. I feel satisfied with the outcome I achieved.

1 2 3 4 5 --


a. Behaved impartially towards all parties 1 2 3 4 5 -- b. Helped us find realistic options to resolve the dispute

1 2 3 4 5 --

c. Helped us generate creative options that we would not have discovered on our own

1 2 3 4 5 --

d. Earned our trust 1 2 3 4 5 -- e. Did not impose their own opinions on us 1 2 3 4 5 -- f. Observed confidentiality 1 2 3 4 5 --

of 47 APPENDICES

9. Do you have further comments or suggestions for improving the Settlement Program?

____________________________________________________________ ____________________________________________________________ ____________________________________________________________ ____________________________________________________________

10. Are you willing to be contacted for further feedback?

a. Yes. Phone number

Best hours to contact b. No.


APPENDIX F: MEDIATOR INTERVIEW INSTRUCTIONS

Interview Format

Introduction (5 minutes): Explain the role play and interview format. Explain to the applicants that at some point during the mock mediation they will be paused and asked to caucus together. This caucus is an opportunity for the two mediators to take a few minutes to discuss how the mediation is going, and their plan for moving forward. Though in this case the interviewers will remain in the room to observe the caucus, the applicants should pretend that they are caucusing privately.

Also explain that the interviewers may pause the mediation at some point to give the applicants feedback. Explain that this does not indicate they are doing a good or bad job in the interview; rather, it is a chance to see how that applicant responds to feedback. More guidelines on giving feedback are included below.

Mock Mediation (25-‐30 minutes): Try to divide this into 15-‐20 min. role-‐playing and 10 min. debriefing.

One-‐on-‐one Interview (5-‐10 minutes): Please review program commitments and quality control procedures.

of 47 APPENDICES

MOCK MEDIATION

Simulation Instructions for volunteers:

Scenario to be determined by quality-‐control sub-‐committee based on actual cases typical for Sofia Mediation Centre

Note: Ideal scenarios are between two individuals, or an individual and a small business owner, where both individuals can be understood to have acted in good faith, and where parties can easily empathize with the plight of either party to the dispute. A dispute between a utilities company and an individual consumer, for example, would not be a good case, since it is difficult to empathize with a faceless company, and also because of the massive power differential.

Each scenario should be written up in a 1-‐2 page description of the scenario, personalities involved, and context, and handed out in advance to two volunteers who will simulate the parties whose case will be mediated by the prospective mediator. The two scenarios should describe the dispute from two different perspectives, where each person involved in the dispute believes his/her perspective to be “right” and the other to be “wrong.”

Special Instructions for both volunteers:

***Please incorporate the following elements into your mock mediation

1. Caucus. Please pause at least once and ask the co-‐mediators to caucus about how things are going, whether there are any concerns or highlights that should be noted, and what to do next. Listen in on their caucus and determine how effectively they are able to incorporate this information in the next part of the mediation.


2. Difficult Situation. At some point, one party should become irate and the other one should respond by becoming very upset. Assess how the mediators are able to handle this difficult situation.

3. Optional: Interrupt for feedback. The role play is important to determine not only skills in facilitation, but also how the applicant receives and incorporates feedback. Accordingly, if you see an opportunity to offer helpful suggestions on how to proceed, you may consider interrupting the mock mediation for this purpose. These suggestions should be both general (such as, “Are the facts here the most important thing to resolve in this mediation?”) and specific (such as, “You are focusing too much on one party”), so as to best assess how the applicant may respond to criticism.

It is important to bear in mind the purpose of this feedback: it is not intended to pick on the weaknesses of the applicant or to make them feel that the mock mediation is going poorly. It is also not intended to be an extensive lesson from the interviewer on how to mediate. Instead, it is meant to give skillful applicants a chance to demonstrate that they are able to process feedback and act on it immediately in the course of a mediation. Therefore, the feedback should be given early enough in the mock mediation that the applicant has a chance to act on it.

When giving feedback, try to keep it relatively simple and brief; the applicants will have a lot to think about in the short time of their mock mediation. Rather than just giving your conclusions (“You’re being somewhat directive,”) the feedback will be more helpful if you can share the data that helped you reach that conclusion (“When you said ____, the impact on me as a party is that I felt ______.”)

After 15-‐20 minutes, wrap up the mock mediation and have a short discussion with applicants. Ask the mediators to assess how the mediation went from their perspective, soliciting both positive comments and for suggestions on ways they may have improved.

of 47 APPENDICES

ONE-‐ON-‐ONE INTERVIEW

Questions to be determined by quality-‐control sub-‐committee.

Special Instructions for volunteers:

Feel free to make notes on this paper and on the Interviewer Evaluation Form. Please be as specific as possible on all forms, as this will greatly assist in making final decisions. Include specific examples of things that mediators said or did.

Thank you for helping with interviews. We appreciate your time and commitment!


APPENDIX G: MEDIATOR INTERVIEW RUBRIC

Applicant Name: ___________________________________________

Interviewer Name: __________________________________________

1 2 3 4 5

Listening

Frequently interrupts inappropriately, comments unrelated to what parties are saying

Occasionally interrupts inappropriately, comments somewhat related to what parties are saying

Rarely interrupts inappropriately, comments responsive to what parties are saying

Never interrupts in appropriately , comments reflect understanding of parties’ concerns

Category 4 as well as usage of some active listening skills

Body Language Fidgety, no eye contact, inappropriate facial expressions

Somewhat fidgety, rare eye contact, somewhat inappropriate facial expressions

Rarely fidgety, decent eye contact, no inappropriate facial expressions

Not fidgety, good eye contact, empathetic facial expressions

Great eye contact, exudes empathy

Perceptiveness Attempts to focus conversation on inconsequential details

Often focuses on inconsequential details

Rarely focuses on inconsequential details, displays some recognition of fundamental issues

Displays recognition of fundamental issues

Displays full recognition of fundamental issues without getting sidetracked

Emotional Intelligence

Not empathetic, makes insensitive remarks, avoids or fails to recognize emotionally difficult topics

Occasionally makes insensitive remarks, occasionally avoids or fails to recognize emotionally difficult topics

Generally empathetic, rarely makes insensitive remarks, rarely avoids or fails to recognize emotionally difficult topics

Generally empathetic, displays recognition of emotionally difficult topics

Very empathetic, manages emotionally difficult situations with sensitivity

Co-‐mediation

No balance between mediators. Does not allow his/her partner to finish train of thought. Does not make an attempt to communicate with other mediator

Poor balance between mediators. Makes minimal effort to communicate with other mediator. Rarely allows other mediator to finish train of thought

Some balance between mediators. Makes some effort to communicate with other mediator. Sometimes allows other mediator to finish train of thought.

Good balance between mediators. Makes good effort to communicate with other mediator. Usually allows other mediator to finish train of thought

Effective balance between mediators. Transparent communication and allows other mediator an opportunity to finish their train of thought

of 47 APPENDICES

Receptiveness to Feedback Resists feedback Accepts feedback

reluctantly

Accepts feedback well but no clarification or acknowledgement

Accepts feedback well and clarifies and acknowledges somewhat

Accepts feedback well, and extensively clarifies and acknowledges feedback

Responsiveness to Feedback

Makes no attempt to incorporate feedback into mediation

Makes minimal attempt to incorporate feedback into mediation

Makes some attempt to incorporate feedback into mediation

Incorporates feedback into mediation and shows some improvement

Incorporates feedback into mediation and shows strong improvement

Openness

Makes no attempt to reframe conflict away from legal framework

Makes minimal attempt to reframe conflict away from legal framework

Makes some attempt to reframe conflict away from legal framework

Encouraging parties to reconceptualize dispute in terms of their motives and interests

Successfully encourages parties to look beyond the dispute and consider their interests and motives in a broader perspective


APPENDIX H: CO-‐MEDIATION REVIEW FORM

Name:

Co-mediator:

Date:

Yourself Your co-mediator

What worked well in this mediation? Give specific examples

What might you or your co-mediator think about doing differently next time? Give specific examples

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