Participants in a commercial mediation often realize that it is in their financial self-interest to continue business relations in spite of their dispute. They choose mediation as the most sensible and non-antagonistic method to resolve their conflict and continue working together. Mediation is also an attractive dispute resolution process for business professionals because it allows them to personally participate in the decision making process, rather than placing that power into the hands of a third-party arbitrator or judge.

In working as a mediator with commercial clients and others, I find myself frequently using a facilitation model called the Technology of Participation (TOP) Focused Conversation Model. This model was developed by the Institute of Cultural Affairs, a private, non-profit organization specializing in organizational development and problem solving. The ToP Conversation Model includes four categories - objective, reflective, interpretive and decisional - that function as guideposts through which the mediator (or facilitator) draws the group from superficial, subjective, anger-tinged remarks towards an environment that empowers objective, in-depth, creative responses and inspired ideas for solutions.

The mediator asks participants to first objectively review the facts of their history, including those appearing to underlie their dispute, then subjectively reflect upon the emotional reactions and thoughts related to their history and dispute followed by their interpretation of their emotional reactions and thoughts, including consideration of meaning, value and significance and finally guiding them to respond, rather than react, with a group consensus equating to a decision for solution. Throughout the Conversation Model, the mediator moves to inspire a sense of joint effort mutual reliance, and even camaraderie in accomplishing an agreed-upon goal.

This model permits the mediator to lead, rather than ”herding” participants from the usual positions of distrust, anger and frustration to an environment where agreement can be reached within a new set of values. The model also endeavors to help participants reframe their own emotional predispositions. Participants often arrive at a mediation dragging the luggage of their own perspectives, prejudgments, fears and survival considerations wrapped in the robes of their personal human qualities, aspirations, egos and foibles. The timing of the steps in the Conversation Model assists the mediator, as facilitator, to more skillfully lead the individuals beyond themselves into a joint effort at solution - a balance and harmony which all ultimately seek, whether or not they are aware of this human inner impulse.

The Objective Step permits the mediator to ask questions that lead participants to express specific objective facts concerning the subject of the misunderstanding between them The mediator encourages participants to present the facts without embellishment, fervor or expression of emotions and to express a willingness to be open-minded throughout the process. The mediator might ask participants to answer questions such as "What were the actual steps taken to arrive at the financials?" or "What effect did the shipment's failure actually have on the production process?"

Throughout the process, we are both subtly and not-so-subtly reminding participants that they each come with a personal belief about the facts underlying the situation and that although these positions might seem quite different, all participants can still be speaking what is true for them. Participants are encouraged to "leave their pre-judgments at the door" along with their expectations and prejudices. To reduce the frustration of not being permitted to "get it all out" at the beginning_: the parties are reminded that they will be given the opportunity to be subjective and to reflect upon the matter with a wider perspective at a later step, but in this step the participants are seeking to maintain objectivity.

The objective step encourages people to work as a team to achieve a solution for common challenges, which at present are viewed through their differing points of view. Here is where a skillful mediator can inspire a spirit of unity for addressing the issues together and redefining "winning" as a "group" goal. The mediator leads the participants to a resolution of the issues and, at the same time, empowers them to recognize the mutuality of their relationship and its financial and economic benefit to both.

The Reflective Step involves asking participants to reflect on their thoughts and feelings about the dispute. There are often strong, unspoken emotions that need to be explored and resolved before a final resolution can be achieved Mediator interventions during this phase of the process might include questions such as "How did you feel when this occurred?" or "What was the reaction from your staff when this was announced?" By hearing the answers to these questions, both participants are able to better understand the impact that the dispute is having on the other person. Business persons can: if properly led, sense the feeling of 'walking in the other's footsteps.'

The Interpretive Step encourages participants to reconsider the dispute in light of new information that they have heard from the other side. During this phase, the mediator might ask questions such as "How would your employer evaluate the impact upon your firm's bottom line?" or "What problems did your staff experience as a result of this dispute?" Antagonistic parties often overemphasize the impact of an event, become defensive when they are challenged, and then go on the offensive in order to protect themselves. But after progressing through the first two steps of the ToP Model_: we often find that disingenuous negative energies begin to dissolve and that people are better able to understand and empathize with the other. Reality begins to set in, answers become more realistic, and with that comes a more respective leniency in demands for solution.

The Decisional Step occurs when participants are ready to resolve the dispute. They have acknowledged that neither will obtain everything he/she may have wanted and that compromise is necessary for a successful resolution. Representatives at a commercial mediation often come with instructions from their boss about what they should say and do. The mediator needs to inspire participants to think out of the box and beyond their initial positions or instructions from their employers. If the employer has given the participant the authority to make a final decision, then the mediator must help that participant feel empowered to do so as thinking professional. During this final phase, the mediator might ask What could we do that would give a sense of completion to this situation? or What would you be willing to do to help John bring something back to his boss and fellow employees as a solution to this problem? This tatter question encourages a joint review and outline that has them working' together for the answer.

I have implemented the I C.A. Conversation Model in my own professional practice as well as my interactive workshop training for conflict resolution professionals. I have found that this model generates ownership, creates clear goals, opens lines of communication, broadens perspectives and motivates people to adapt to their changing environment while still honoring their respective needs to 'return home,' report and explain. These qualities are all attractive signposts along the mediators path toward solving problems. Properly facilitated, the process decreases adversarial animosity, increases opportunities for the parties to understand better the other's challenges, and inspires participants to join together to find solutions. I trust that you will also find this model to be beneficial to your professional ADR practice.

Jerome Allan Landau combines his 35 years practicing commercial, business and transactional law in U.S. and international venues with more than 25 years of mediation and arbitration experience. He also presents training workshops for ADR professionals and serves as Chair o ACR’s Commercial Section.

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