Minimum Standards—IMI Certified Mediation Advocates

Note that Mediation Advocacy Qualifying Assessment Programs may have higher entrance standards than these, but they will never be lower. Do make sure you read through the requirements of the MA-QAP you are interested in.

1. Experience of the Mediation Process: Applicants must have experienced at least five mediations as a Mediation Advisor/Advocate.  Exemptions: IMI Certified Mediators; mediators who have acted as sole mediator in at least 10 cases/200 hours (in countries where there is no IMI Qualifying Assessment Program.)
2. Knowledge of Mediation Advocacy: Applicants must demonsrate a strong understanding of general mediation advocacy theory and practice.  Written tests, essays, reports, theses and interviews may be used to determine such knowledge.  Applicants are expected to be tested on and exhibit a comprehensive understanding of Mediation Advocacy theory derived from the leading international textbooks on the subject.  See also the General Knowledge Requirements set out below.
3. Practical Mediation Advocacy Skills: Applicants must demontrate a high level of mediation advocacy competency.  Assessment may be conducted using role-plays or live action assessments, and may include videotaped and online assessments such as web dramas, self-assessments, interviews, peer reviews, user feedback or other in-practice skill evaluations.   See also the Practical Skills Requirements below.  Note that MA-QAPs may assess further practical skills.

Mediation Advocacy General Knowledge Requirements

The following areas of practical skills are required for effective mediation advocacy.  The list is offered as guidance.

1. Knowing when mediation may not be a suitable process to address particular issues.
2. Identifying procedural options and preferred processes for reaching optimal outcomes.
3. Knowledge
   of hybrid dispute resolution processes (e.g., Arb-Med, Med-Arb,
   Arb//Med, Med-Con, Med//Con, MEDALOA) and their potential advantages and
   drawbacks in different circumstances.
4. Understanding and applying the best timing for each Dispute Resolution process.
5. Understanding
   of the nature, theory, procedure, practical application, methodology,
   appropriateness, benefits and disadvantages of the prevalent types of
   mediation, schemes or programmes, procedural rules and pertinent costs.
6. Knowledge
   of negotiation and solution-generating processes, as well as party and
   participant dynamics, as contextualised by the choice of mediation
   process/vehicle.
7. Understanding of the role of a mediator, and the palette of mediator methodology, psychology, core training, and practices.
8. Knowledge
   of relevant laws affecting mediation practice including structure and
   enforceability of mediation agreements (where relevant), confidentiality
   and privilege /professional secrecy, and structure and enforceability
   of settlement agreements.
9. Familiarity with methods of
   formulating solutions, including assessing alternatives (BATNA, WATNA,
   PATNA, RATNA [3] & preparing client and self for joint/caucus
   mediation meetings.
10. Ability to assist parties in separating interests from positions.
11. Ability to seek and understand the motivations behind individual positions as distinguished from the issues in dispute.
12. Familiarity
    with techniques like questioning, summarizing, (active/effective)
    listening, framing and re-framing, reformulating, reflecting and
    paraphrasing.
13. Ability to make strategic choices that can help
    strike a balance between positional claims that advocate the clients’
    interests and creating value based on interests.
14. Familiarity with cross-cultural settings and dynamics.
15. Understanding of cross-border and multi-cultural mediation paradigms.
16. Ability to adapt procedural parameters when dealing with multi-party or complex cases involving numerous participants.
17. Understanding
    of professional and ethical standards and behaviors, and the use of
    ethics in generating, informing and/or setting norms.
18. Ability to draft settlement agreements as discussed by the parties to the mediation.
19. Ability to understand and interpret settlement agreements and procedural options.
20. Ability
    to explain the nature, theory, procedure, practical application,
    methodology, appropriateness, benefits, advantages and drawbacks of
    prevalent types of mediation within or between relevant jurisdictions,
    court-connected mediation schemes, ad-hoc or institutional procedural
    rules, applicable costs, and professional applicable professional ethics
    codes.
21. Knowledge of problem-solving, interest-based negotiation techniques.
22. Knowledge
    of the distributive (adversarial) approach to negotiation, in addition
    to the problem-solving (interest-based) approach and knowing when and
    why to apply each. Knowing how to avoid and counter unhelpful
    adversarial attitudes, behavior and language.
23. Knowing how to use
    techniques for productively supporting the parties, their
    representatives, the mediator and the process, and using the mediator
    and the process effectively to generate a mutually accepted outcome.
24. Knowing how to effectively communicate with the mediator, prior to, during and after the mediation sessions.

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Mediation Advocacy Practical Skills Requirements

The following areas of practical skills are required for effective Mediation Advocacy.  The list is offered as guidance.

1. Pre-Mediation Stage

A. Case diagnosis and process selection

1. Conflict diagnosis, including conflict (de)escalation models.
2. Understanding
   when a neutral third party can add value in a conflict and assessing
   the quality of that value.  Being able to convincingly convey that
   understanding to the client.
3. Using dispute assessment & risk analysis methodologies.
4. Identification of relevant parties, stakeholders and participants to the process.
5. Identifying
   the most appropriate process.  Skills to assess (contra-) indications,
   pros and cons, and strengths and risks of each method. Being able to
   convincingly convey that understanding to the client.
6. Design, customization and implementation of appropriate conflict resolution processes.
7. Considering possible application of hybrids and other process design options.
8. Pre-mediation analysis.
9. Application and interpretation of alternatives analysis, BATNA, WATNA, PATNA and RATNA
10. Whether or not to use norms to set ZOPA[4] and leverage such analyses.
11. Defining time frames.
12. Understanding
    different levels of readiness of the client to accept mediation and the
    ability to address their concerns effectively.

B. Clarifying and initiating process

1. Initiating contact with the other parties or their representatives, and/or with mediation institutions.
2. Consider
   whether the parties wish to use norms, subjective interests, or a
   combination of the two to resolve the dispute, and what norms (if any)
   to use (e.g., laws, customs, community response).
3. Consider the
   relevance of past, present or future events, and whether to focus on the
   past or the future as a basis for seeking resolution of the dispute.
4. Counselling
   clients, principals, participants and relevant stakeholders, as
   appropriate to identify and resolve procedural issues and options
   separately from substantive issues to be mediated, and if so when and
   how to mediate.  Explaining mediation goals and process.
5. Communicating effectively with the other side to bring them to mediation in the right frame of mind.
6.  Identifying and overcoming possible misperceptions (e.g., concerns of appearing to be weak if agreeing to negotiate).
7. Collaborating
   and negotiating with other parties, their representatives and the
   mediator about process choice and design, logistics and timing. Setting,
   collaborating and negotiating about mediator selection criteria with
   the other parties and their representatives and where appropriate,
   working with the other parties to identify, set and implement each
   mediation parameter.

2. Selection of neutral and preparation stage

A. Identify, negotiate and select mediation process and mediator

1) Mediation process and mediator

1. Selecting
   the most suitable mediation procedure, style and approach (e.g.
   evaluative, transformative, facilitative, narrative, solution focused,
   eclectic, hybrid forms, co-mediation, joint sessions and/or
   caucus-based), including consideration of common mediation approaches
   used locally and elsewhere
2. Determining whether mediation should
   be administered or self-administered. Applying specific aspects of
   court-connected mediation processes.
3. Working with the
   participants and the mediator(s) to determine the need for a mediation
   agreement (if any), select a venue, identify participants, use opening
   statements (if any), time allocations (if any), prior written
   submissions (if any), the mediator(s) role and conduct; discuss the use
   and frequency of joint sessions and/or caucuses (if any).
4. Finding,
   selecting and appointing the most suitable competent mediator(s) for
   this case, these parties and the specific circumstances.
5. Knowing when co-mediation is appropriate and how to select and convene a co-mediation team in collaboration with the other side.
6. Knowing
   how to select a suitable mediator for a particular case, including,
   mediation style and skills, and identifying the need for a specialist or
   generalist.
7. Collaborating and negotiating with other parties,
   their representatives and the mediator about process choice and design,
   logistics and timing.
8. Using the IMI Decision Tree online or using a software application or other tools to assist in achieving any of the above.[5]

2) Administrative, formal and legal aspects of coordinating a mediation.

1. Negotiating and (where applicable) drafting the mediation agreement.
2. Dealing productively with any obstructive or fencing behavior of the other party or the party’s representatives.
3. Advising
   on mediation clauses, mediation rules and regulations of mediation
   providers and professional bodies, ethical guidelines, codes of conduct,
   complaint schemes, disciplinary processes, liability issues,
   confidentiality, privacy, refusals to participate, mandates, and
   authorities to settle.

B. Preparation

1. Composing mediation teams. Identifying/negotiating attendees on each side.
2. Information strategy: when (and when not) to share what information with whom. Determining information that is needed.
3. Identifying the necessary documents to be exchanged with knowledge of applicable confidentiality rules.
4. Timing of the revelation of interests and options.
5. Advising on the roles of client and advocate.
6. Separating interests & positions.
7. SWOT analysis skills (own client and, hypothetically, the other party).
8. Preparation of self, client and the mediator.
9. Drafting
   a Mediation Briefing or Position Statement and a Strategic Mediation
   Representation plan for cases where such materials are required.
10. Using an IMI Online Evaluation (“OLE!”) form or other tools to assist the participants in their preparations.[6]

3. Mediation stage

A. General, Monitoring Progress

1. Monitoring progress and checking whether the process needs to be adapted to the circumstances.
2. Awareness of the key factors for success and failure in mediation.
3. Collaboration
   with own client, the other party and the other party’s representative
   to facilitate a constructive outcome based on problem-solving
   techniques.
4. Counselling the client on financial, tax, social, legal, reputational, commercial and other relevant interests.
5. Making
   an informed choice between several approaches and options for resolving
   the issues, and knowing when to suggest each approach (including
   whether and when to terminate the mediation process as necessary).
6. Balancing
   between (1) claiming value and advocating the client’s interests and
   (2) creating value and motivating participants to reach a settlement.
7. Acting
   as client coach and “reality check” to help them gain familiarity and
   confidence with the process, their relevant roles and whether their
   positions are compatible with their interests.
8. Collaboration
   with the mediator, tasking the mediator, ensuring the mediator
   understands the client’s core interests and constructively designing and
   implementing the mediation process from the perspective of all parties.

B. Opening statements and Agenda Setting

1. Breaking
   the ice and creating constructive conditions for a productive mediation
   process. Identifying interests, topics for discussion, information to
   be exchanged (give and get) and possible impasses to be overcome.
2. Agenda setting and time and expectation management.
3. Coaching
   clients, where applicable, to prepare and deliver effective opening
   statements. Opening statements in accordance with the style of mediation
   or negotiation approach. Understanding what type and style of opening
   statement to use (e.g., argumentative, persuasive, explanatory,
   expressive etc.) as may be most effective, what to include and omit, and
   possibly proposing to defer to a later point in time or dispense with
   formal statements when this would be more effective.  Deciding who
   should deliver the opening statement.
4. Supporting information
   exchange by summarizing facts and addressing queries from the other
   party, the other party’s representative or from the mediator.
5. Interpreting the other party’s opening statement and identifying key information, interests, opportunities and impediments.

C. Exploration

1. Generating
   effective negotiation approaches, explanations of first offers, package
   deals, concession strategies and negotiation techniques.
2. Eliciting interests and distinguishing positions from interests.
3. Applying communication skills like active listening, reformulation and non-positional communication skills.
4. Understanding
   and dealing with emotions, social and status issues, and international
   and cultural aspects and conveying this understanding to parties.
5. Identifying,
   analysing and dealing with impasses, breaking deadlocks and knowing how
   to support the client and mediator on these issues.
6. Dealing
   with clients’ instructions that may be difficult to reconcile with
   opportunities and options and resolving those inconsistencies.
7. Balancing
   confidentiality and the need to provide the information necessary for
   resolving the dispute and reaching the best possible outcome.
8. Dealing
   with difficult parties, party representatives, clients or inappropriate
   mediators. Ability to work with the mediator and the other parties and
   their representatives to overcome impasses.
9. Applying reality-testing techniques to manage the expectations of the client and the other party.
10. Identifying
    the right time and work with the mediator to call for caucus, time-out,
    breaks, private client meetings, joint sessions, changes of venue and
    changes of negotiation team members.
11. Caucus:
    1. Ensuring any caucus is handled ethically and confidentially.
    2. Working with the client and mediator to provide information useful in resolving the dispute.
    3. Exploring options with the mediator.
    4. Seeking and providing positive and constructive feedback to/from the mediator.
    5. Working with the mediator to identify the possible use of norms to generate, set and/or advocate possible outcomes.

D. Generating Options & Negotiation

1. Preparing the client on how to effectively react to, and consider, unlimited possibilities.
2. Creating and prioritising interests and options.
3. Where appropriate, assisting the client to be an effective negotiator (problem-solving, interest-based, positional, etc.).
4.  Formulating first offers.
5. Responding to first offers.
6. Identifying topics for further discussion and information to be exchanged.
7. Ensuring that the mediator presents the options proposed during private caucus accurately and maintains confidentiality.
8. Working
   with the other party, the client, and the mediator to generate,
   develop, brainstorm and reality-test options.  Ability to engage in and
   consult on several methods for generating options.
9. Utilizing the
   processes of negotiation, and party and participant dynamics, as
   contextualised by the choice of mediation process.
10. Establishing mutually acceptable norms or reference criteria.
11. Identifying objective and measurable criteria by which to assess feasibility and possible implementation of options.
12. Responding to positional tactics.
13. Using mediators for reality testing and/or for evaluative feedback where appropriate.
14. Using mediators to support and lead the parties and/or to help them formulate offers or responses.
15. Identifying and dealing with impediments, and enlisting the mediator’s support.
16. Dealing with unexpected surprises or inconsistent negotiation styles.
17. Maintaining momentum and dealing with decision fatigue.
18. Dealing with reactive devaluation.
19. Checking for confirmation bias.
20. Clarifying intentions and motivations.
21. Adapting communication styles and strategies in accordance with progress made and other participants’ conduct.

4. Closing and Implementation

A. Closing

1. Securing the best available and workable outcomes that circumstances permit.
2. Deciding whether to end or walk out of a mediation.
3. Formulating final offers.
4. Responding to final offers.
5. Dealing with incomplete settlements or inability to settle.
6. Deciding whether and if so how to request a mediator’s proposal.
7. Maintaining positive momentum and leaving a window open.
8. Generating joint or single communication strategies and dealing with possible reporting or reputational impacts.
9. Facilitating
   the mediation to progress to a comprehensive, substantive, clear, valid
   and enforceable agreement (as SMART[7] as possible), preserving such
   relations as may be desired between the parties.
10. Managing setbacks in the final stage of the mediation if new issues emerge.
11. Sustaining
    a constructive and amiable atmosphere to promote successful
    implementation of the agreement (keep the door and communication open).
12. Assisting with the drafting of any publicity statements and contingency Questions & Answers, where appropriate.
13. Dealing with partial settlements and managing contingencies where applicable.
14. Dealing with parallel judicial, administrative, arbitral or other proceedings
15. Closing documents and ceremonies (if any).
16. Possible
    rescheduling of additional mediation sessions with the same or
    different mediator(s), and when or where to conduct such sessions.
17. Considering possible final procedural options, hybrids and proposals.
18. Understanding
    that not all disputes result in a settlement directly after a mediation
    and knowing how to identify and establish possible next steps to retain
    positive momentum and reschedule the matter for future consideration
    and settlement as and when appropriate.

B. Implementation

1. Considering possible compliance and enforcement requirements.
2. Knowing
   the relevance of Consent Awards or homologation proceedings, where
   applicable and possible, as a means to ensure compliance.
3. Monitoring compliance and dealing with any post-settlement issues.
4. Maintaining a good-faith approach towards the mediated settlement agreement and dealing with possible surprises.
5. Ability to deal with and finalize any outstanding post-settlement issues.
6. Dealing with any final settlement formalities and possible contingent documentation
7. Securing such appropriate court or tribunal recognition for a settlement (e.g., use of consent awards).

Footnotes to MA Requirements

[1] The term ‘Mediation Advocacy’ has been used throughout these Criteria for ease of reference

[3] BATNA = Best Alternative to a Negotiated Agreement; WATNA = Worst Alternative to a Negotiated Agreement; PATNA = Probable Alternative to a Negotiated Agreement; RATNA = Realistic Alternative to a Negotiated Agreement

[4]  ZOPA = Zone of Possible Agreement

[7]  SMART = Specific, Measurable, Achievable, Relevant and Timebound

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