RESOLUTION

(MEDIATION
 Prepared By

JSGB & ASSOCIATES LEGAL

SERVICES INC.

KPADESON SUMO

Forward

1
Alternative Dispute Resolution (ADR) has been practiced in various forms and ways in Liberia. This
happens even more so in the traditional resolution of disputes between and among individuals, families
and cultural groups. It is widely seen as the judicial process for tribal groups and the adherence to the
rule of law in many ways. The civilized justice system also uses ADR when a court orders it because the
parties agree that it is how they want to settle a matter, or a third party has special knowledge that a
court does not have and therefore the parties agree to ADR. Liberia does not have a body of law on ADR.
Therefore, when parties agree on their own to use this method to solve their disputes, the court is not
likely to make the parties comply with the resolution between the parties.

Mediation is a common form of ADR which is effective in solving land disputes because it saves time and
money and requires special skills that a court does not have such as measure boundaries. Mediation will
play a major role in land disputes by establishing acceptable ownership of various kinds of lands as
defined by the Land Right Act (LRA).

The interpretation and enforcement of the Land Rights Act of 2018 present new challenges for women
and children’s rights in land management and ownership. In this regard, Mediation as form of ADR will
continue to be an important if not the best means of resolving disputes within communities. This
training module is intended to equip justice actors to have a handy tool for effective resolution of land
and related disputes using Mediation.

2
 1. Training Goal
This manual will build the capacities, both in knowledge and skills of participants in various methods of
ADR, with emphasis on Mediation and their applications in the resolution of land disputes in
communities.

2. Training Objectives
a. To train community justice advocates in the methodology and substantive aspects of
ADR as an alternative to litigation (going to court).
b. To expose participants to proven best practices in interest-based dispute resolution
methods.
c. To foster consensus in the use of ADR in promoting access to justice and peaceful
coexistence in communities.

3. OVERVIEW OF THE TRAINING1

a. Introduction and Application of ADR

b. Three-day workshop (may be extended to six to seven days maximum); for each there
will be six sessions, lunch breaks, substantive presentations, facilitated group
discussions and role plays

c. Evaluation and network development

4. Training Activities and Topical Outline for Daily Sessions

Day One
1
The training is designed to accommodate various versions in a workshop type environment. In a concise
form, it may be done in minimum three days. Again, it depends on the number of participants and
presenter(s). Workshops are more productive in smaller groups that will ensure interactive and use of
hands-on approach to learning. The training session may last for about six to seven (7) days if the
resources are available, and the expected outcome is to equip participants that will go in the field to serve
as mediators. The workshop can be tailored to the needs of the participants. Note that the standard for
qualified trained mediator is a minimum of forty hours of training and passing a qualification test.
If the number of days is increased for the training session, the topics may be broken down into subtopics
and additional topics should be added. Additionally, more activities and role plays should be added to
make the training more practical.

3
 a. What is ADR and How Does it Apply to Our Judicial System?

b. What is Mediation?

c. What is the Role of a Mediator?

d. What are the Procedures for Mediation?

e. What are the Skills of a Mediator?

Day Two

a. What are the skills of a Mediator (continues)?

b. Identifying and explaining Advance Mediation Skills

c. Designing and demonstrating Mediation Training

Day Three

a. Demonstrating Mediation

b. Other activities required for Participants on the ADR Staff

c. Evaluation and Recommendations

4. INTRODUCTION TO ADR

4
Alternative Dispute Resolution (ADR), which is sometimes referred to as Collaborative Dispute
Resolution (CDR) and its application is fast growing. ADR refers to the set of tools used to resolve
disputes without going to court, which is costly, puts people against each other, and takes a long time.
ADR is a modernized version of a long-forgotten set of techniques. ADR is used in traditional civilizations
all across the world in various forms. Most modern judiciaries incorporate ADR in their justice system
due to the difficulties of going to court and how more and more people are not satisfied when a court
decides a disagreement. However, in order to resolve any dispute by ADR, there must be three things:
the parties must want to solve the problem, they must be willing to engage the process until a solution
is reached, and they must see the “peace maker” as a person who is neutral.

ADR include:

– Arbitration
– Mediation
– Conciliation
– Facilitation
– Settlement Conference

Arbitration

The legal and/or technical merits of a disagreement are determined by private persons or a board made
up of people who are not part of the court system, and a decision is made as to who is right or wrong,
and what the winning side is entitled to. The decision may be compulsory or not compulsory.

Arbitration is carried out almost like normal court.

Mediation

A process where the parties to a disagreement agree to resolve their matter where a person, who has
no interest in their matter, assists the parties to understand the problem between them, find solutions
and work towards a solution that benefits all the parties. The person who assists the parties is call a
mediator, who stays away from telling the parties how to solve their problem.

Mediation requires a set of skills needed to settle disputes. A mediator must avoid becoming a judge
and must not give advice to people who have the disagreement. The sides will be encouraged to come
up with their own innovative solutions to their disagreement. If the parties can come up with their own
ideas, they are more likely to stick.2

Conciliation

Conciliation where a person who is not a part of the problem helps those who have problems to find
different ways to solve their problems. The solution to this depends on the problem and includes an
apology, changing the way things are done in a particular place, paying money, etc. Here, the parties do

2
www.undc.org

5
not have to prove their case. Parties just tell the person who is in charge of the matter what the problem
is and this person helps the parties to negotiate an agreement. 3

Facilitation

The act of helping other people to reach an agreement without getting directly involved the process,
discussion, etc.4

Settlement Conference

The calling of parties to settle a dispute where the parties come together in a meeting to settle their
disagreement.5

5. MEDIATION

Most people like mediation because of the following reasons:

a. It is likely to get the best results

b. It costs less money.
c. After mediation people remain friends.
d. It saves time.

Mediation is about listening and moving people to what will benefit them from what they think will
benefit them. This is a three-way process: The mediator listens to party “A” and party “A” listens to the
mediator. Party “A” listens to party “B” and party “B” listens to party “A”. the mediator listens to party
“B” and party “B” listens to mediator.

B C

THE MEDIATOR’S ROLES

3
www.humanrights.gov.au
4
Thomas and Anderson, Sociology, The Study of Human Relationships, 3rd Edition, p. 417-423 (Harcourt Brace
Jovanovich, Inc., 1982)
5
Id.

6
The parties must TRUST the Mediator. Parties must believe that the mediator's interests do not clash
with their own.

A mediator is not a JUDGE, therefore should never JUDGE the parties.

A mediator begins by reassuring the parties by outlining the regulations and instructing them to share
"your OWN tale." Interrupting is prohibited, and strict SECRECY is essential.

A Mediator gives information from one party to the other party only when the party who owns the
information gives permission for the information to be given to the other party.

A Mediator, as much as possible, meets with both parties. Does not meet only one party without
meeting the other.

A Mediator always shows RESPECT to the parties, by waiting until each party speaks and poses
questions to each other, taking notes (this shows that the mediator is attentive and cares about the
problems presented by each party), and summarizing what each party said. The parties must state what
they consider to be the issue. As a result, both sides will begin to listen to each other and have questions
6
about their initial viewpoints.

6. EFFECTIVE MEDIATOR
A successful mediator is one who knows the situation and how the parties FEEL about it, and who
communicates with the parties that he or she is aware of their feelings. The mediator pays attention to
the parties as though they had never been heard before. Mediators raise doubts about the parties'
initial points and assist them in coming up with new thoughts regarding their conflict. In other words,
the Mediator allows people to solve their own problems.

7. PROCEDURES FOR MEDIATION

a. Introduction.

b. Private meetings with party ‘A’.

c. Private meeting with party ‘B’, ‘C’, etc.

d. The mediator and all parties meet for the first time.

e. Mediators’ meet among themselves (if there are more than one mediator)

f. Returns to meet with the parties.

g. Additional private meetings, as needed.

h. Agreement writing, court’s approval, implementation. proactive

6
www.civilmediation.org

7
 i. Enforcement, as needed.

Mediator’s (s’) introduction:

For the introduction, both the mediator(s) and the parties are present. The mediator(s) presents herself
or himself to the parties at this crucial initial point of contact. He explains the benefits and how the
meetings will take place, the freedom of the parties, how nobody forced anybody to come to the
meeting, and how the parties are to be active and are responsible for solving their disagreement, as well
as the rules that control the meeting, such as secrecy, bringing witnesses or evidence or not, etc.). These
may change depending on the rules. In terms of who can mediate and what sorts of results are
attainable, a traditional, customary mediation, such as those conducted by religious, tribal, or clan
authority (as opposed to a court-operated mediation), may be entirely different. Mediators check to see
if all of the disputants are present, and if those who are can make decisions and are committed to the
outcome if they reach an agreement later. These establish the mediator(s) and parties' credibility and
trustworthiness.

Private meeting with party ‘A’.

In a private discussion, a Mediator seeks to grasp party ‘A's narrative and looks for a party's desire to
reach an agreement. he find out what is behind what a party is saying in addition to what a party says as
opposed to what a party is demanding.

Private meeting with party ‘B’.

Take the same steps as above.

First joint session between the mediator(s) and the parties.

The mediator has now learnt about the issues of agreement and dispute between the parties during this
combined session. He helps people communicate their true needs and potential answers to one another
in a calm manner. If a solution is not achieved during the first joint session, the mediators and parties
are given further time to consider the entire matter.

Mediators’ meeting

This is the moment for two mediators (or more challenging situations) to check in with each other
regarding their co-mediation duties. They examine their common or divergent understandings of the
conflict, as well as the many potential solutions that may emerge. They discuss their impressions of each
other and the parties, and they decide on the next measures to persuade the parties to agree.

Resumed joint sessions

The goal now is to get the parties talking about their common concerns and to assist them in finding a
common solution. The mediator brings the parties back together to discuss what would be beneficial to
them and how they might come up with collaborative solutions that are acceptable to both sides.

Additional private meetings as needed

8
If a party still does not want to settle the matter, the mediator can check to see whether there are other
solutions that will satisfy the party who does not want to agree to a solution. In ADR, this is referred to
as “The Best Alternative to a Negotiated Agreement” (BATNA). In other words, what a party alternative
is if the mediation of their disagreement fails.

Agreement writing, judicial approval, implementation.

It is critical to document the agreement in the manner needed by tradition or law once the parties have
reached an agreement in principle. It is preferable to have the agreement written in the parties' own
language. The agreement should also spell out each party's duties clearly, whether they will comply with
the agreement, and that the agreement will not depend upon people who were not part of the
mediation. Parties may require the approval of a court to ensure that an agreement is first in compliance
with the law (the parties should not agree to do something illegal or harmful to a third party) and,
second, that the agreement made has the force of law behind it. This second stage is not required in all
nations or situations, while others immediately provide the agreement the status of force of law.

Enforcement

If the agreement concerns a matter that is already in court, the court will order the parties to follow the
agreement or face contempt of court which may be punished by a fine or jail time.

8. MEDIATOR SKILLS
The Skills of the Mediator include:
a. Active listening
b. Ability to gain trust of the parties
c. Non-partisanship (there are exceptions)
d. Redirecting
e. Proactive inquiry
f. Reflection and feedback
g. Non-judgmental stance
h. Empathy

Active listening is a set of abilities that entails being interested in what another person is experiencing and
saying. A mediator should show that he or she understands the situation without necessarily agreeing. It
entails being able to put oneself in another's shoes, view the world through their eyes, and appreciate a
specific argument or problem from their perspective, without taking sides. Parties can express their
painful sentiments in a secure atmosphere, knowing and perceiving that the mediator will give them the
space and support they need. (though not agreement).
Empathy is when a person is speaking, the mediator listens attentively and sometimes starts a small talk
just to humanize the meeting in order to let emotions come out. After someone has finished speaking,
look through the narrative again in detail, take notes, and ask questions. Allow the person to correct what
you repeated or let the person give you feedback. NEVER, interrupt, belittle, ignore, lecture, blame,
change the topic, criticize, or give advice where either party is concerned.
Non-judgmental

9
This refers to the capacity to stay objective in a debate over who is right or wrong, while acknowledging
that each party has most certainly contributed to the situation. It will be difficult for the mediator to
convince the parties to accept responsibility and ownership of their problem if they lack this trait, and
they may try to transfer the blame to the other side and the problem-solving load to the mediator. A peace
maker may only be able to solve a problem if the parties to the conflict respects the neutrality of him or
her.
Reflection and feedback
Without agreeing with party’s tales or narratives, a competent mediator may ensure that each party feels
heard, respected, and understood. This ability is being able to paraphrase what the parties have stated
about their wants and goals, similar to being a mediator's mirror. This ensures that misunderstandings are
corrected in time. It also demonstrates that the mediator is actively involved in the process and
encourages the parties to participate actively. Reflective communication also allows the mediator to
reflect on his or her own words, how they sound, and how he or she is feeling to the other side. This, in
turn, aids parties in seeing their one-sidedness and rejection of responsibility for the situation. A mediator
in providing feedback should regularly smile, lean forward, if permitted, lightly touch parties, make eye
contact and nod.
Proactive inquiry
A mediator should know how to ask the right questions when they are restating how the parties see the
conflict. He should assist them in recognizing their role in the conflict and, as a result, their duty to settle
it, help them understand their own underlying interests, what they would like to see happen, preferences
and willingness to find a fair solution.
Redirecting
This is a communication skill in which a mediator moves one side's attempts to place sole blame on the
other party or to hold the mediator responsible for the mediation's conclusion. By asking parties to put
themselves in the shoes of the other party, a mediator can help the parties refocus their efforts, energy,
and concentration so that they may take greater ownership of both the problem and the solution.
Non-partisanship
It is nearly always desirable for a mediator to behave and be regarded as a neutral third party with no
links to the parties or stake in the resolution of their disagreement. The mediator does not know the
parties and it is the first time they see the parties when the mediation starts. This is particularly true in
disputes where the court says the parties should go for mediation to solve their problem. We do not that
this type of ADR in Liberia. For community-based mediation, the parties may know the mediator but is
still required to be non-partisan, which allows for a successful mediation.

Ability to gain the trust of the parties

Parties come to mediation with their confidence in each other shattered, sometimes severely, exactly
because they previously had a trusting relationship with great expectations that was disrupted. They won't
be able to go forward if they distrust the mediator as well. Parties must be confident that the mediator's
word will be kept and that everything they tell a mediator in confidence will remain confidential. The

10
parties are more likely to trust the mediator and the mediation if the mediator has prior expertise and a
solid track record in the community. How people see you as a person, whether true or not, affects their
trust in you to judge their palaver fairly. If you have a good reputation, you are likely to be trusted as a
mediator.

Reframing
Reframing is, in many ways, cleaning up one's words and restating what has been said in a more
constructive and unbiased manner. Examples: “I want to sue him”. Moderator may put it another way
and say, “You’re angry and you want something done about this problem.” Or, a party will say, “She’s
driving me crazy, she never shuts up about this.” The Moderator may restate this statement and say, “You
feel that you are not being listened to…” Changing the language to BRING OUT THE INTEREST like,
“What I hear you saying is…. An experienced listener, a mediator gathers information from the other side
and responds in a restricted way that maintains the other party SHARING INFORMATION. Suspend
your judgements until they're absolutely essential, such as at the stage of reflection and feedback. Parties
are stronger when they have the ability to make their own decisions; hence, the mediator cannot make a
7
choice.

9. ADVANCED MEDIATION SKILLS

Five Advanced Mediator Skills:

a. Managing cultural differences in mediation

b. Managing power disparities in mediation
c. Ethics
d. Large group facilitation
e. Training mediators, training trainers

Managing cultural differences

Parties may originate from distinct cultural backgrounds, or one or both parties may have a culture that
differs from that of the mediator. Cultural lenses may affect good communication. Knowledge of each
other's cultures aids in mutual understanding and avoids cultural "distance" from becoming a new cause
of contention.

Some culture norms to consider when doing mediation:

• Is it more essential to focus on the group than the individual? Affects decision-making and adherence
to a contract.

• Long-term or Short-term solutions relationships? Makes parties think through possible solutions to
conflict.

www.cabg.gov
7

11
• Do parties speak the same language or not? Affects information sharing in terms of how parties
express themselves in stating what is important to them.

• Are parties equal on various levels or there exists a big difference? Affects one party's attitude toward
the other, as well as their capacity to accept mediation/mediators, realization by a party of his or her
contribution to the disagreement and how far a party will go in making extreme demands followed by
small concessions, bluffing, puffing, and lying or using taking a take-it or leave it stance (strategy). •
Mediation cannot eliminate power imbalances, but it can help to decrease them by focusing parties on
finding common ground rather than causing harm to one another. A mediator needs to help a party with
less power understand the strength of the mediation in reaching the best results, help a more powerful
party realize that everybody wins when both parties find a solution to their disagreement and it is less
expensive rather than when one party imposed his or her solution on the other.

Mediation cannot remove the differences in power between the parties. The parties have to on their
own leave their power or powerlessness behind and take part in the process. If one side is much more
powerful than the other, the mediator may be forced to halt the mediation, provide a level playing field
if feasible, or ensure that the parties are aware of their differences and rights.

• What is the parties' tolerance for uncertainty? Affects the way an agreement is written, as well as the
specificity of the terms and conditions.

There are several options for resolving the issue:

• Do not reduce someone to a single cultural layer since this pushes them to become a cultural
advocate.

• Make an effort to appeal to other levels of culture, such as association, business, and education.

• re-individualize and Re-humanize the contact if possible.

Ethics for Mediators:

Mediators’ General Responsibilities.

a. Mediators owe it to the parties, the profession, and themselves to do their best. They must treat
the parties fairly, have no personal interest in the terms of the settlement, be impartial toward
individuals and institutions involved in the dispute, be reasonably available as requested by the
parties, and ensure that the parties are kept informed about the process in which they are
involved.
b. All sides must be treated equally by the mediator. Impartiality entails a commitment to serve all
parties rather than a single one, and freedom from favoritism or prejudice in both words and
actions.
c. The mediator has a responsibility to ensure that all parties are aware of the nature of the
process, protocols, the mediator's function, and the parties' relationship with the mediator.
d. Keeping to you what parties tell a mediator in secret is important to the dispute resolution
process. Secrecy fosters honesty, transparency, a thorough examination of the issues, and the
parties' acceptance of the mediator. However, there are several situations in which
confidentiality is not guaranteed. When appropriate in the dispute resolution process, the
mediator shall inform the parties that the confidentiality of the proceedings cannot be

12
 guaranteed. Unless there are exceptional circumstances, the mediator must oppose any
attempts to persuade him or her to divulge any information outside of the process. The
mediator's promise to keep material confidential during the process must likewise be
respected.8
e. Where a person may be subject to conflicting duties, influences or loyalties. If the mediator feels
that his or her involvement as a mediator would be a conflict of interest, he or she shall not
engage or continue in the dispute. "The responsibility to disclose is an ongoing requirement
throughout the process," says the Mediator, "if he or she seems to have a conflict of interest or
other circumstances that may legitimately raise a concern about the Mediator's impartiality". 9
f. The mediator will make every reasonable attempt to complete the procedure as quickly as
possible.
g. The parties' right to self-determination, particularly in relation to the Settlement and its effects.
The parties control the dispute settlement process. The mediator should have no personal
interest in what the parties agree to, but he or she must be confident that the agreements in
which he or she has participated will not cast doubt on the process' fairness. The mediator's job
is to make sure the parties think about the conditions of a deal. If the mediator is worried about
the potential implications of a proposed agreement, and the parties' needs need it, the
mediator must notify the parties. The mediator may decide to educate the parties, send one or
more parties for specialist counsel, or withdraw from the case in order to meet this
requirement. In no event, however, can the mediator breach these standards' confidentiality
clause (C).
h. When the mediator's interests aren't reflected in the process, he or she must think about it.
Where the requirements of the parties demand, the mediator has a responsibility to ensure that
such interests have been addressed by the major parties.
i. When the same mediator(s) employ more than one conflict resolution method, they take on
extra duties. When more than one procedure is initially planned, the mediator must take care to
tell the parties about the procedures' nature and the ramifications of disclosing information
during any one procedure that the mediator may later utilize for decision-making.
j. Only when a mediator has adequate understanding of the proper procedure and subject matter
to be effective may he or she assume responsibility. It is the obligation of a mediator to maintain
and develop his or her professional abilities.
k. Some types of advertising and solicitation are improper for mediators, and some dispute
resolution disciplines, such as labour arbitration, are not permitted. All advertisement must
accurately portray the services to be provided. There should be no guarantees of specific
outcomes or pledges that suggest a preference for one party over another in the hopes of
gaining business. For the recommendation of clients, no commissions or other similar kinds of
payment shall be provided or received by a mediator. 10

Large group facilitation

8
www.cabg.gov
9
www.euromed-justice.eu

10
www.courts.state.hi.us

13
Big group facilitation necessitates abilities that enable large groups to participate in discourse with the
goal of achieving an agreement, such as getting the group to agree on a technique of debate and, if
necessary, decision-making, based on their preferences or views.

Mastery over a number of things is required for large group facilitation:

– Mastering problem definition entails focusing the group on one or more agreed-upon agenda items
rather than allowing it to splinter, but simultaneously being aware of the "big group dynamic" (the
group's inherent unexpected and dynamic movement).

– Mastery of closure: the capacity to get the group to agree on a process end point, whether it's basic
participation, knowledge exchange, or formal agreement.

- Mastering the art of persuading parties to come to the table: merely persuading them that discussion
is beneficial can take some effort.

- Mastering the art of spotting crucial players: When it comes to group disagreements, deciding who
should participate is a difficult task. The facilitator must ensure that all important decision makers are
present or informed of the situation.

- Mastering the art of persuading parties to agree on ground rules: Parties are already on the road to
settlement by agreeing to the basic norms of mediation (no interrupting when others are speaking,
polite language, etc.).

- Mastery of keeping the parties focused: if the facilitator isn't cautious, a group conversation can
wander in a hundred different, useless ways. Parties want assistance in remaining on track and
concentrating on what is feasible, as well as what are most important to them. 11

11

www.focusu.com

14