Intro To Mediation 2008 Hcmc

HOPSTAKEN An Introduction to Mediation Notes to seminars at the International Business & Law Academy, HCMC – July 19, 2008 The lecturer has been an active Mediator since he completed his mediation education in July 2001. Since then he has been a registered NMI Mediator. Both in his work as business consultant and teacher at international management schools he incorporates and promotes Mediation as a major tool for conflict prevention, handling and resolution. These handout notes do not cover all topics. Some are covered in the handout articles, others are not. I suggest the participants take notes, and conduct their own research on ‘dispute resolution’, ‘mediation’ and ‘conflict management’. Morning seminar: Overview of the subject 09:00 – 11:30 Topics: - What is Mediation? - What is the role of Mediators? - Willingness: the no. 1 make-break factor in Mediation - The Anatomy of Conflict: the ‘Right Wrong Box’ - Mediation: restoration of communication by dispute resolution - Why are many Lawyers interested in becoming a Mediator? - Why is it hard for a Lawyer to be a good Mediator? - Why should a Lawyer be a Mediator as well? - Cooperation between Courts, Judges, Lawyers and Mediators - Mediation specialisms - Requirements for Mediators; Mediator skills - The major governing policies in Mediation - Mediation as a toolkit for conflict management - Q&A Afternoon seminar: An introduction to the practice of Mediation 13:00 – 15:00 Topics: - The Mediation procedure - Examples of Mediation tools - Victims: a trap for Mediators - Keeping the balance - Dealing with an imbalance in power - The procedure in action: the mediation ‘wheel’ - The Harvard Negotiation Project - A conflict resolution ‘short cut’ - Mediation training - Q&A Throughout the seminars the lecturer will refer to his own mediation experiences. © 2008 Loek Hopstaken

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Mediation: the fastest growing dispute resolution activity around the world During the past 25 years, a new form of dispute resolution has spread around the world. It rapidly earned a reputation as a valuable addition to any dispute resolution activity, including litigation and arbitration. There are now several schools of Mediation. Some lean heavily on psychological insights and psychotherapeutic tools, others focus on communication techniques. In many cases, working knowledge of the local and applicable laws is mandatory. The best, in my personal opinion, take the most workable tools available to train effective and successful Mediators who can handle virtually every possible conflict situation. Under one condition: Parties must consciously choose Mediation as a method to settle their dispute by actively contributing to its resolution. They must ‘will’ it, from start to finish! Major definitions The Dutch Mediation Institute (NMI) defines mediation as: “Procedure in which Parties with the help of a Mediator try to solve their dispute in harmony, applying the [mediation] rules.” Parties are defined as: “The Parties (or one of them) who wish to resolve their dispute by use of Mediation.” A mediator: “The person who leads the mediation-procedure, and who is registered.” A mediation agreement: “The [written] agreement in which Parties and Mediator take responsibility for resolving the dispute as described in the agreement.” A conflict arises, when two or more parties want something to be different, stop communicating and start fighting. The Chinese character for conflict, however, teaches us that there is also a possible future. It combines the characters for ‘danger’ and ‘opportunity’, so I am told. Conflicts are clashing points of view about content, or relationship. A disagreement about content could lead to a deteriorization of the relationship; this also works in reverse. When you dislike someone, you’ll tend to disagree with him/her. A conflict between parties who have a similarity in power is easier to handle than a case where there is imbalance, such as a employer – employee, or parent – child conflict. Willingness and its reward Mediation is no litigation or arbitration. A Mediator does not act as a Judge to decide about the resolution of a dispute, or conflict. He facilitates peace. The procedure is based upon willingness from Parties to discretely resolve their conflict in a way that is satisfactory to all. The reward for a resolved dispute is often impressive. When it is successful, Parties will have - resolved their dispute (the primary objective) - stayed out of court and the public eye - saved much time - saved much money - saved face - gained respect from their direct social and business environment, that was undoubtedly aware of (or suffering from) the dispute, as they take full responsibility for the resolution - justified pride: they have solved their problem themselves, as decent human beings. Courts refer to Mediators In many countries courts and Judges have less and less time. The waiting lists have become overlong. This urged them to look for alternatives. This development leads more and more to deployment of Mediators to help settle a dispute out-of-court. In the Netherlands many Courts use Mediators. Still, most mediations take place without a Judge’s initiative. In my country (16,5 million inhabitants), the past year only around 4,000 mediations were registered at the NMI; this © 2008 Loek Hopstaken

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number is growing. However, there are around 3,500 registered Mediators. Although the rule is that a mediation should be reported to the NMI, Parties often do not want anyone to know about their dispute. So the number of actual mediations greatly outnumbers the registered mediations. This serves to explain why yearly only 1 mediation per Mediator is being registered. Yet, each lower Court nowadays has several ‘mediation rooms’, where Parties meet a Mediator to prepare a mediation procedure. I have met Judges from Amsterdam and Haarlem who have become active Mediators. In fact, many Judges are now Mediators as well. (Of course they don’t operate as such in their own areas; this would lead to protests from Lawyers.) They tell me it gives them much more job satisfaction, and revitalizes their original ideal to help bring justice to society. Two cases Many Mediators are invited by a third party (such as a Judge, or a family member) to contact conflicting Parties and offer their service. Others are contaced after Parties have found a suitable and registered Mediator on the NMI website. In my experience, I am usually being approached by one Party, who was informed about me by someone in my business network. When a friend or close relative asks me to mediate, I decline: effective mediation is hard when the Mediator is too close to one side of the conflict. Two brothers, two Directors: a success story Most Dutch companies are small and medium-sized family businesses, with 20 – 500 personnel. Nowadays, many companies founded after the Second World War have passed into the hands of the founders’ children or grandchildren. Often not one, but two, or even three children. While the founder was still alive, (usually) he would intervene whenever his successors would have an argument. He would simply settle the dispute by making a firm decision. However, this seldom handled the full dispute, as the emotional side of it had not been addressed. This was the case with two brothers, mr. A and mr. B. Both appointed Director by their father, each owning 50% of the shares. Soon after their father passed away, their old argument came back to life. Like most conflicts, it was a 98% emotional affair. When I first arrived at the company, I soon discovered that it was facing bankruptcy. The best employees were leaving, or had plans to do so. Reason: they had lost their faith in their managers – A and B, and the future of their company. The two brothers would not speak with each other, only shout – even in the presence of employees. The willingness of A and B to accept mediation came from their desperation to lose their company and their income. During the mediation, which took four meetings with an average of 2 hours each, it was as if we were looking at a whole chain of earlier disputes, going back to the time when they were boys. When those childhood disputes were addressed, the argument suddenly seemed to vanish, as the two brothers started laughing uncontrollably. When I returned a few weeks later, the brothers were in good communication. They had given a presentation to their personnel, in which they had apologized for their behavior, and showed they were ‘back on track’. The company was back on track as well. By the end of the year it was ‘business as usual’. A marriage falling apart: a lesson Once people know you are a Mediator, you get invitations. You are seen as a Peace Maker. I try to avoid invitations from people I know, as it does happen that mediation fails. In my experience, only because the willingness of one of the Parties disappears. Often there is someone else whispering this Party in the ear, telling him or her to quit. And when a Party is not strong or courageous enough, he or she will drop out of the mediation process altogether. When my long-time friend C. called me, asking if I would be willing to mediate between him and his wife as their marriage was falling apart, at first I declined. Apart from being invited by one of the Parties, I felt this was ‘too close for comfort’. But when his wife called me with the © 2008 Loek Hopstaken

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same question, I didn’t: I just wanted to help my friends. So we set out on a risky path. I must confess that there have been moments when I regretted my decision. Marriage mediation really is a specialism, and I’m not a specialist in this field. For example, I didn’t know about divorce laws. Fortunately, sticking to my mediation techniques plus the willingness of my friends saved our mediation, and their marriage. Still, I would refuse to do something similar in the future: I find it very hard to remain neutral when I am close to the Parties. Hard to remain ‘Mediator’ and refrain from displaying ‘Friend’. Especially when during the mediation process Parties started addressing me as their friend, and not as their Mediator. Mediation most often is, very emotional. The Mediator’s role is to turn the negative, destructive emotions into positive, constructive ones. One other lesson learned from this experience, is that as a Mediator, one should consciously set aside personal, especially judgmental thoughts about Parties. Such as: “Oh, what a stupid remark was that!” Or: “I never knew he was that bad!” These thoughts seriously inhibit a fruitful mediation process. It took me quite an effort to control this. It nearly cost me my reputation! Specialisms & legislature Mediators specialize in many fields. Family mediation, marriage mediation, business-to-busines mediation, management mediation, employer-employee mediation, governmental body-citizen(s) mediation, neighbour mediation, etc. As mentioned earlier, it is very useful to know about the relevant legislature. When the mediation process is in the ‘solution phase’ the Mediator can inform Parties – who by now have become real Participants! – about the viability or legality of suggested solutions. In this way, he/she helps them to prevent making unworkable or impractical agreements. The global mediation pocedure The Mediator takes notes of the proceedings. Sometimes a co-mediator assists, both with the mediation process and by making notes. 1. Agree to meet in a distraction-free environment (‘Do Not Disturb!’; mobiles off). 2. Use a suitable table arrangement, so Parties can easily face each other and the Mediator. 3. Introduce the mediation process, check the willingness of Parties to use mediation to resolve their dispute, and agree about rules (such as: “When one person speaks, the others listen.” “When one Party wants to quit, that’s acceptable. But do consider the consequences of no solution of your conflict.”) 4. Invite each Party to state the problem. Maintain balance at all times. 5. Ask each Party to describe the other Party’s point of view. Check with the other Party if this is correct. 6. Arrive at a common definition of the dispute. Summarize; get agreement. 7. Invite solutions. 8. In case Parties display non-productive bahavior, check if the dispute definition is still agreed upon. When this is not the case, redo 5, or if needed, 3. 9. Let Parties negotiate about suggested solutions. 10. Do not allow negative comments or judgments. 11. Check with Parties the advantages and disadvantages of proposed solutions. 12. Come to agreement about one solution. Agree who does what, and when. 13. Turn this into a Mediation Agreement, and have this signed by Parties and yourself. 14. Show appreciation to Parties. 15. End the Mediation with shaking hands, or whichever ritual is proper. Two effective mediation tools: ‘Going to the balcony’, and Caucus When the emotions become too much for one or more Parties, it works to take a break, move to a different environment, or take a walk outside. This is also called ‘Going to the balcony’. When © 2008 Loek Hopstaken

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something needs to be cleared up about the procedure, or anything else, take a Party separate to have a Caucus; a talk. But make sure to keep the balance, so also have a talk with the other Party. More to know … There is of course much more to know about mediation. We have just ‘scratched the surface’. In my opinion, Mediation can have a great future in Vietnam. No society, no business, no family wins from conflict. Or as one author said: “Nothing in the world is more profitable than peace.” Personally, I believe that Lawyers and Mediators can work hand in hand to make peace, using the laws of the land, and most of all: the willingness of Parties to make peace. While Lawyers are seen by the general public as people who make money out of other people’s conflicts, they now have a whole new field to explore, and incorporate in their practice. Mediation adds a whole new dimension to dealing with conflict. Before going to Court, Mediation offers an opportunity for Parties to settle their dispute out-of-court. Lawyers and Judges all over the world start understanding the potential of Mediation to add it to their own profession. It enhances their reputation. The fact that Mediation is all about making peace while saving face for all concerned, seems to make it well fit for eastern Asian cultures. There are many good reference books about the subject. My personal favorites are the brilliant ‘Getting To Yes’, by Harvard Negotiation Project authors Roger Fisher, Brian Patton & William Ury, and William Ury’s ‘Getting Past No’. They contain several workable strategies to successfully guide Parties through the negotiation phase (see 8 – 12 above). I’m sure within a few years there will be studies and publications about mediation in Vietnam. A job for you, perhaps? Loek Hopstaken Gouden Leeuw 628 1103 KN Amsterdam The Netherlands Phone (VN): 0908889450 Email: [email protected]; [email protected] www.hopstaken.com (summary in English) Registration in Vietnam is in progress.

© 2008 Loek Hopstaken

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Career overview: Loek Hopstaken Born in Haarlem, The Netherlands, July 19, 1951. Living in Amsterdam. Career overview

1971 – 1976: various temporary jobs, while studying, and between travels 1976 – 1977: travels: North & South America as a reporter for De Tijd (Dutch weekly) 1977 – 1978: ABN Bank – Asst. Foreign Payments 1978 – 1982: NCB Bank – HRM Officer 1982 – 1985: Postgiro – Sr. Job Evaluation Officer 1986 – 1988: Postbank (= the privatized Postgiro) – Manager Job Evaluation Department 1986 – 1988: Postbank – Projectmanager Development of the new Job Evaluation System 1988 – 1990: NMB Postbank Group – Management Trainee PR & Marketing Division 1990 – 1993: NMB Postbank Group / ING Bank – Sr. Quality Manager 1991: Founding of Hopstaken Bedrijfsadvies – Business Consultancy, Training (communication; organization), HRM 1995 – 1999: Silhouet Management Support – Trainer, Consultant; course development 1996 – 2000: Silhouet Business Club – MC, Speaker 2000 – p.t.: Hopstaken Bedrijfsadvies – Delivering various training & HR consultancy services to medium and small sized companies in Benelux since 2001: delivering training programs for ISBW / Schouten & Nelissen since 2003: teaching foreign students of management (bachelor & master levels) at Dutch Delta and Wittenborg Universities, Deventer, The Netherlands May 2005: appointed Professor.

Achievements

As a result of effective lobbying, two law proposals accepted by the Dutch parliament (1980-1982): these concern the protection of human rights of patients in mental hospitals for Postbank (1986): successful change of the salary system from a governmental setup to a privatized one (design; presentations to Board of Directors, trade unions, and 10,500 personnel) for Postbank (1988): completion of a tailor made job evaluation system conforming with the norms of the Dutch banking world, presented to and accepted by all parties concerned for NMB Postbank Group (1989): completion of a research into the salary consequences of the merger for NMB Postbank Group (1989-1990): merger of the PR & Communication departments (structure, personnel) for NMB Postbank Group, which became ‘ING Bank’ in 1992 (1991-1993): introduction of Total Quality Management to its 23,000 personnel for Silhouet Management Support (1993-1999): training appr. 2,000 entrepreneurs and managers in communication and leadership skills

© 2008 Loek Hopstaken

creating and running (as Master of Ceremonies & premier speaker) the ‘Silhouet Business Club’ (1996-2000), with 100 entrepreneurs as members; 50 seminars designed, delivered and reported about in newsletters for Silhouet Management Support (1995-1999): successful Team Engineering sessions for many Dutch and multinational companies, including a Philips product division, a Heineken regional sales division, a top Ford dealer, a top Renault dealer, a top design company same, for Hopstaken Bedrijfsadvies (1999- present time). Clients: a.o. Alpas Hendrion, Royal Van Zanten, Campagne, Voerman International (UTS), Damen Shipyards, Yamaha Musical Instruments long term coaching and training programs, bringing companies from the pioneer phase to the professional phase (1996present time). Clients: a.o. Campagne, GD Promotions, Metaaldraaierij Lebrun as a Professor, intensively involved in graduation of appr. 180 Bachelors and 40 Masters in Business Administration (2003-2007), mostly from China and Vietnam.

Education

1971: after graduation: work & travels (Near & Middle East) 1972 – 1976: study: history of art; history; teaching; reporter for a Dutch weekly magazine (North & South America) 1979 – 1982: Business Administration (NIVE, The Hague) 1982 – p.t.: (ongoing) various management courses & seminars 1989 – 1991: Public Relations (Van der Hilst PR School, Amersfoort) 2001 – p.t.: (ongoing) study: Mediation (at CvC, Haarlem; registered NMI Mediator since July 2001)

Current and near future projects

Since late 2007: lecturing at Management Institute of Canada/Dutch Delta University, Amsterdam; Wittenborg, Deventer 2007 – p.t.: researching the possibility of setting up a management training activity in Vietnam: ‘Vietnam Management Support’; designing in-company academies

Main fields of interest professional: management, personnel, organization, communication, coaching private: music (member of the Duke Ellington Music Society), movies, literature, photography.

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