Competency Criteria

IMI, via its Independent Appraisal Committee, certifies “Qualifying Assessment Programs” (QAPs) as having the capability to assess individuals against IMI’s standards.  To have a QAP, an organisation’s program must meet the established criteria for QAPs, published elsewhere on this website. 

The below have been adapted and simplified from the criteria for QAPs, for use as guidelines by users who are attempting to establish whether their experience may meet the requirements for IMI Certification or Specialisation.  The criteria for QAPs are authoritative.

Note that Qualifying Assessment Programs are accessible on an equal basis, regardless of Applicants’ professional affiliations, gender, race, ethnicity, age, religion, sexual orientation, or other personal characteristics.

Minimum Standards—IMI Certified Mediators

Note that 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 Qualifying Assessment Program you are interested in.

  1. Mediator Experience.  Applicants must have a substantial level of experience as a mediator—typically, 200 hours or 20 mediations suffice.
  2. Mediation Knowledge.   Applicants must have a strong understanding of general mediation theory and practice.  These may be assessed using methods such as written tests, essays, reports, theses, or interviews.
  3. Mediator Skills.  Applicants must be effective using the mediation process and techniques.  Evaluations/assessments may be based on roleplay or live action assessments, and may include videotaped and online assessments such as web dramas, self-assessments, interviews, peer reviews, user feedback, and other in-practice skill evaluations

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.

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


Minimum Standards—IMI Intercultural Competence Specialisation

Note that Intercultural Competence 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 IC-QAP you are interested in.

A. Knowledge

1. Cultural Framework(s): Ability to apply at least one recognized cultural theory in order to identify relevant Cultural Focus Areas for facilitating inter-cultural mediations (see below). The theory and approach shall include an appreciation of similarities and differences among cultures.

Comments:

  1. Any selected framework should provide suggestions as to how to use culture, and possible Cultural Focus Areas that have been identified using the theory (or theories) taught, while avoiding stereotyping when setting up and participating in mediations. Although there are many recognized and respected theories, the goal is not to learn comparative theories about culture or to master a particular theory. The goal is to be able to apply a selected theory or theories about culture in such a way as to help mediators consider appropriate issues when setting up and facilitating an inter-cultural mediation.
  2. Understanding culturally shaped norms and expectations can help explain parties’ different perspectives and think about possible impasses that these perspectives may create. However, it is important to avoid considering culture as an overly inclusive concept to try to explain all behaviors that individuals may manifest, which may not always be group-related but also can be linked to individual considerations (e.g., age, gender, residence, etc). Mediators should strive to apply their understanding of culture as a tool to understand and foresee possible patterns of behavior while considering mediation as a social process in inter-cultural cases, helping people from different cultures to communicate optimally with one another.
  3. Any discussion of culture in the context of mediation needs to consider how the concepts of “parties”, “participants”, “conflict”, “resolution”, “mediation”, “conciliation” and “process” can have different meanings in different cultures.

2. Self-awareness. Ability to recognize one’s own cultural influences and their possible effect on the mediation.

Comments:

  1. Mediators should be conscious of their own culturally-influenced practices including how culture may form lenses through which they view and interpret the behavior of others.
  2. Mediators should consider how their culturally shaped preferences or behavior might be viewed and interpreted by participants.
  3. Mediators should learn to recognize signs of their own surprise, discomfort, or cognitive dissonances when facing cultural differences, and develop adaptive strategies for re-establishing balance, coping with cultural ambiguities, and managing unfamiliar or contrary practices.

3. Multi-Cultural Perspectives: Ability to recognize each participant’s culturally-shaped perspectives of behaviors or events. Ability to understand and appreciate participants’ similar and different cultural perspectives, and possible imbalances between them. Ability to manage ambiguities and mistakes that may emerge in multi-cultural situations. Ability to use the mediator’s understandings of these possible differences and similarities to create a workable environment for all participants, including one that optimizes communication among them.

Comments:

  1. Mediators should be sensitive to the participants’ possible perceptions of the behavior of the mediator, the behavior of other participants, and preferences in handling procedural issues or substantive topics.
  2. Mediators should not react negatively when faced with different ways of doing things, unless the behavior violates the mediator’s fundamental personal values.
  3. When working with multiple cultural perspectives, mediators should learn to deal with possible uncertainty, ambiguous information or circumstances, unintentional mistakes (e.g. cultural malapropisms), and possible unconscious biases or behavioral scripts of participants.
  4. Mediators should consider the best styles and processes for dealing with issues related to multiple perspectives. This includes whether to address them in caucuses or joint sessions or directly or indirectly with the participants, as well as how to generate procedural options that all participants can work with.
  5. When managing multiple cultural perspectives, mediators should consider how and whether to co-mediate with neutrals from other cultures or involve interpreters as cultural consultants when preparing for and participating in mediations.

B. Skills

4. Communication: Ability to adjust one’s own communication style to the preferred styles of participants from other cultures, and to help participants communicate optimally with each other, including establishing suitable processes to facilitate communications.

Comments:

  1. Mediators should be able to employ suitable inter-cultural communication skills when interacting with participants as well as with co-mediators from other cultures. For example, under one theory, the communication style suitable for mediators may involve pinpointing a point on the direct-indirect communication continuum, a point that can be influenced by a number of other cultural parameters such as the power distance index and relationship orientation of the participants or co-mediators.
  2. Mediators need to check for compatible communication styles among the participants and consider whether, how and when to assist participants in communicating in the event of possibly incompatible communication styles.
  3. Mediators should be able to assist participants in understanding how information may be conveyed in different ways across cultures.
  4. Mediators may need to help participants adjust the way they communicate with each other based on such parameters as the participants’ comfort in displaying emotion, their ability to empathize or understand others’ perspectives, their comfort with face-to-face discussion of sensitive topics, and their preference to pursue delicate matters through indirection (e.g., to avoid “loss of face”). Mediators may need to be prepared to help the participants render explicit what may have been implicit in their behavior, or to state less explicitly what a participant may prefer to learn implicitly. Mediators also might help the participants generate a new set of behavioral norms for the purposes of the mediation.
  5. Mediators need to learn to assess if, when, and how to use caucuses with participants to facilitate communications.

5. Preparation: Ability to prepare for a mediation by identifying possible cultural patterns and preferences (e.g., identifying specific Cultural Focus Areas for each mediation) and designing potentially appropriate processes and possible interventions.

Comments:

  1. Mediators should learn to prepare for inter-cultural mediations by researching and anticipating possible culture affects and by figuring out what process may work best for the participants based on any Cultural Focus Areas that the mediator may have identified. When preparing for a mediation, mediators should consider whether to hold preliminary private interviews with the participants, explore whether to design culturally appropriate procedural rules for behavior and interaction, and consider preparatory interventions to help the parties recognize and address any culturally-influenced communications, interests, or impediments.
  2. The aim of this preparation should be to construct hypotheses for how to proceed initially given what a mediator may know about the participants, their representatives and their wider constituencies, and plan how to test and adapt these hypotheses as the mediation progresses. It should be remembered, however, that preparation only gives rise to hypotheses, and mediators should not assume that their hypotheses can be relied on.
  3. When considering interests, mediators should consider the possibility that there may be wider interests at stake than only those of the participants at the table. Those interests may include the interests of other constituencies or stakeholders (e.g., family members, elders, communities, tribunals, affiliates, and regional, national or political groups or entities). This analysis also should consider whether there may be impediments due to the participants’ different sense of status or different needs for procedural certainty, autonomy, fairness, or relatedness.
  4. Mediators should be flexible and open to re-assessing and modifying their procedural preferences and styles of intervention, as illustrated by the following examples:
    1. Whether to convene a pre-mediation meeting with each party, certain parties only, or their representatives.
    2. Whether to request prior written submissions and the type of submissions that may be helpful.
    3. Where the mediation should take place, who should attend, and what venue, food, dietary needs, external resources, social activities or welcoming rituals should be considered.
    4. Whether to work with the parties to design a procedure to meet any needs for mutual respect, autonomy, affiliation, certainty, or procedural fairness, in which statuses and roles are relevant (e.g. dress code, seating arrangements, and forms of address).Whether to help participants avoid cultural norms that may be deemed politically or culturally incorrect by others, as well as avoid being manipulated by cultural norms.
    5. How participants or their representatives should communicate optimally with one another prior to and during the mediation, including whether or not to specify the role of the mediator (e.g., as non-evaluative or evaluative), the need for co- mediators or interpreters, who may speak and write, the order of any initial presentations, possible deadlines, the length of mediation sessions, and how time should be allocated.
    6. How proposals might be presented (e.g., in some cultures, parties may not be comfortable presenting options, may not be familiar with brainstorming processes, may not understand what is expected of them, and may not want to present because may appear weak, unfocused, lose face, or lose the respect of other participants or stakeholders).
    7. Whether and if so, when and how to provide for evaluative feedback.

6. Managing the Process. Ability to detect whether, when and how cultural considerations (e.g. Cultural Focus Areas) may be impacting on the mediation process as the mediation progresses including abilities to adapt the process accordingly and design appropriate interventions, that also encompass any settlement and compliance phases.

Comments:

  1. Although managing the process is important in all mediations, this responsibility requires special attention in intercultural mediations where signposts of progress and impediments may be less evident. Also, suitable interventions may be different.
  2. Due to cultural considerations, mediators may need to become more or less directive or facilitative at times on procedural issues, depending on the mutual needs or requests of the participants.
  3. Even though the mediator and the participants may feel they are advancing well, each individual may think they are heading in a direction whose outcome may be culturally influenced and different. In order to provide a check and elicit the range of different understandings, mediators should be able to assess the extent to which participants’ expectations are aligned, can be reconciled, or can be respected.
  4. Mediators may need to help participants set parameters for a final work product or action items, so that the participants can feel they have reached satisfactory closure.
  5. Conflicts underlying a mediation are seldom ended by only an oral agreement, nor are they always ended when there has been a signed agreement. In inter-cultural disputes, mediators should be aware of additional procedural or ceremonial steps that may be necessary to enable participants to feel that they can bring closure to the conflict.

Cultural Focus Areas

The IMI Inter-Cultural Task Force identified six Cultural Focus Areas (CFAs) that mediators may want to give attention to when mediating inter-culturally. Each of these behavioral categories includes examples that may be relevant when preparing for mediation, interacting with participants, bridging differences, and establishing common grounds between participants.

1. Relatedness and Communication Styles

  • Formal-Informal
  • Direct-Indirect
  • Emotional: High-Low
  • Emotional Expressiveness
  • Physical-Non-physical
  • Verbal, Para-verbal and Non-verbal
  • Personal-Impersonal
  • Sequential-Circular Reasoning

2. Mindset Toward Conflict

  • Negotiation Attitude (how participants may prefer to negotiate)
  • Attitudes to conflict: Positive-Negative
  • Risk taking: High-Low
  • Relationship building-Task orientation

3. Mediation Process

  • Roles of Mediator and Participants
  • Predictability of Process
  • Need for an agenda
  • Social protocols
  • Separate or identifiable phases during the process
  • Fairness
  • Goals or Outcomes

4. Orientation Toward Exchanging Information

  • Transparent-Non-transparent
  • Legal or other norms or social conventions
  • Broad-Narrow
  • Non-specific-Contextual
  • Fact related-Non-fact related

5. Time Orientation

  • Polychronic-monochromic
  • Long Term-Short Term orientation
  • Past-Present-Future (facts, needs or interests)
  • Deadlines, Deliverables, Punctuality
  • Duration and Frequency (of joint and/or separate meetings)
  • Expected timelines for reaching outcomes
  • Time Pressure-No Time Pressure

6. Decision-making Approaches

  • Norms-based-Subjective interests-based
  • Mediator as norms-generator, norms-educator or norms-advocator
  • Individualist, Majority-led or Collectivist
  • Compromising-Non-compromising
  • Problem-solving-Outcome generating
  • Structured-Unstructured
  • Relationship oriented-Outcome-oriented
  • Participant driven-Constituency driven
  • General-Specific Forms of Agreement (oral, written, behavioral)
  • Inductive-Deductive Reasoning
  • Measurable-Non-measurable

Minimum Standards—IMI Online Dispute Resolution Specialisation

Note that ODR 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 ODR-QAP you are interested in.

Experience Requirements

At least twenty full-scale e-Mediations in the past 24/36 months (exceptions: IMI Certified Mediators who have completed a minimum of five full-scale e-Mediations; mediators who have acted as sole mediator in at least 20 e-Mediations (200 hours), in countries where there is no Qualifying Assessment Program for IMI Certification.

Knowledge

The following areas of knowledge and understanding are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended as guidance to ODR QAPs in designing knowledge assessments. It is not necessarily exhaustive or mandatory.

Situational Awareness

  • Knowing when the online environment may not be a suitable way to conduct the mediation process;
  • Determining when ODR approaches are likely to add value to the process;
  • Staying abreast of developments in ICT, ODR schemes, various ODR platforms and general issues related to Online Dispute Resolution (ODR);
  • Knowledge about the impact of ICT on the practice of mediation.

Basic Knowledge

  • Understanding the principles of text based, video based, audio based communication (or a combination) and ability to identify the most appropriate one for a mediation or for phases of the mediation process;
  • Understanding of the role of a mediator, and how the mediator’s approach and practice are adaptable or not to the online environment;
  • Knowledge and adherence to ethical standards;
  • Knowledge of the dynamics of online negotiation;
  • Knowledge of relevant laws affecting mediation practice in the online environment (if any): enforceability of online mediation agreements (where relevant), confidentiality and privilege;
  • Knowledge of the various laws affecting the structure and enforceability of online mediation agreements, particularly across jurisdictions;

Platform/Technology

  • Ability to select the appropriate ICT platform that meets the needs of the parties;
  • Knowledge about which features of the ICT platform to use in a mediation (functions, security, access, complexity, others);
  • Knowledge (as applicable) in Technology (hardware and software)
    • (i) Devices needed to perform the mediation using ICT
    • (ii) Telecommunications technology
    • (iii) Information technology
    • (iv) Required electronic records;
  • Knowledge about possible technology issues and breakdown.

Process/Impact

  • Understanding of the emotional, social and cognitive advantages and disadvantages of using ICT in a conflict resolution process and the ability to measure and manage the impact and effects on third parties;
  • Ability to move between different communication channels based on the nature of the relationship and task at hand; (e.g. use of email to coordinate a call, use the phone before going to a face to face meeting and then shift back to phone before writing again a final email);
  • Understanding of biases related to ICT use and impact on parties and third parties’ performance in mediation;
  • Knowing how to use relevant procedures and techniques for facilitating online communication including (i) management of asynchronous communication, (ii) balancing limitations of each ICT towards the needs of each party;
  • Familiarity with the impact of the online environment in techniques like listening, questioning, paraphrasing, summarizing and concurrent caucusing.

Communication with Parties

  • Understanding and explaining to the parties policies, procedures and protocols relevant to conduct the mediation using ICT. Including but not limited to:
    • Ethical and legal issues
      • (i) Consent, privacy, confidentiality, security
      • (ii) Limitations of technology;
    • Documentation
      • (i) Scheduling and follow-up
      • (ii) Accountability /responsibility;
      • (iii) enforceability;
  • Understanding of technological challenges and ability to identify them for each participant, including but not limited to literacy, acceptance, and compatibility;
  • Knowing how to use techniques for adequately supporting technologically challenged participants and address possible imbalances between parties;
  • Knowledge of cultural bias related to the use of technologies in mediation practice

Skills

The following areas of practical skills are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended to aid ODR QAPs in designing skills assessments. The list is not necessarily exhaustive or mandatory and is offered as guidance.

1. General skills in mediation (IMI Certification)

Include but are not limited to ethical obligations, neutrality, awareness of potential biases (conscious and unconscious), and confidentiality.

2. Skills related to technology

  • 2.1. Basic computer skills and basic mobile computing skills;
  • 2.2. Working with ICT platform set-up, operation, and trouble-shooting;
  • 2.3. Ability to manage efficiently any technology challenges;
  • 2.4. Ability to use the technical equipment and environment (e.g. lighting, sounds, distractions) in order to deliver a high-quality experience to participants of the respective e-Mediation;
  • 2.5. Ability to convey clear and effective messages in verbal and non-verbal communication synchronously and asynchronously;
  • 2.6. Ability to use the ICT platform in such a way that the platform does not take away the focus from the content of the conversation with/among the parties;
  • 2.7. Ability to show confidence and critical self-awareness in working with technology to address parties’ issues;
  • 2.8. Ability to simultaneously address people who are in different countries and regions and different time zones – understanding the impact that this can have on the dynamics of the communication;
  • 2.9. Understanding implications for privacy in storing digital information and communicating with parties and others online;
  • 2.10. Ability to combine asynchronous communication and videoconferencing in order to manage caucuses;
  • 2.11. Ability to use specific options of the ICT platform such as (i) meeting planning, (ii) screen sharing, (iii) online caucus, (iv) giving mouse controls, (v) muting and unmuting, (vi) multiple webcams (vii) multiple modes of communication simultaneously.

3. Skills related to the e-Mediation process

  • 3.1. Assessing suitability of the dispute/disputants to e-Mediation
  • 3.2. Determining which approaches are likely to add value to e-Mediation;
  • 3.3. Determining and explaining to the parties the impact of the use of ICT in terms of process and potential impact on the outcome of mediation;
  • 3.4. Dealing with the different levels of readiness of the parties to accept the implication of using ICT in the mediation process, evaluating and securing equal access to ICTs for all parties involved.
  • 3.5. Determining special costs or fees associated with the use of ICT in e-Mediation.
3.6. Preparing for e-Mediation
  1. Considering parties’ knowledge of mediation process and impact of ICT;
  2. Understanding the level of technical knowledge of the parties and their capacity to communicate effectively using ICT platforms;
  3. Guiding parties and all participants through the ICT (the process and information management);
  4. Identifying possible outcomes, risks and consequences associated with e-Mediation;
  5. Identifying and explaining to the parties (in common-language) the potential risks in relation to privacy and confidentiality while using online or computer-based platforms or applications;
  6. Identifying and communicating common technical issues, problems or questions that may arise during an e-Mediation process and providing parties with possible protocols to address them;
  7. Identifying reasonable industry standards for security and privacy protection of a determined online or computer-based platform, and refraining from using or recommending the ones that do not meet those standards;
  8. Creating a protocol agreement that defines the parties’ understanding of the process, the use of any ICT, the potential risks to their information, and the responsibilities of an eMediator (including responsibilities related to confidentiality and ability to provide protection to data transmitted online);
  9. Choosing the online platform that is going to be used during the e-Mediation;
  10. Getting agreement regarding who will be present during the different audio and/or video sessions of the e-Mediation;
  11. Getting agreement regarding who will have access to any information stored online as part of the mediation process and define how that access is going to take place;
  12. Creating an atmosphere where the use of ICT by the e-Mediator outside of the mediation does not create the perception of a conflict of interest by the parties;
  13. Identifying and getting agreement on the procedure to follow in case of technology breakdown;
  14. Disclosing the appropriate information so the e-Mediation can be conducted without any conflict of interests; ensuring transparency with regard to the e-mediator, the institution, the 4th party and the online procedure.
  15. Identifying the parties’ understanding of the sources of the dispute, their interests, rights and options, and the other party/ies’ interests, rights and options.
3.7. During e-Mediation
  1. Effectively using technology and outside assistance if needed;
  2. Conducting a high-quality process within the online environment;
  3. Deciding on the best online process that meets the needs of the parties despite personal preferences or bias in favour or against the use of ICT;
  4. Monitoring of the parties’ perceptions and attitudes towards the e-Mediation and adjusting the process respectfully;
  5. Being aware of the different features of the ICT platform, their corresponding advantages and constraints to be able to discern which feature to use in which context;
  6. Understanding and dealing with technology impact in power imbalances (e.g. typing capabilities of the parties, imbalance due to computer power and internet speed, others);
  7. Monitoring to ensure that parties deal with the online process on equal ground and competence;
  8. Being self-aware to avoid becoming biased by party’s performance using ICT;
  9. Taking advantage of the change of communication type provided by online dispute resolution mechanisms to help the parties take the most out of the situation (e.g. create space for brainstorming, time to reflect, etc.);
  10. Understanding how to adapt text/audio/video based communication to the kind of issue parties are discussing;
  11. Applying emotion management techniques;
  12. Understanding how to use active listening online that also includes attentive and active reading;
  13. Using ICT to facilitate negotiations in an efficient way;
  14. Ensuring that impartiality is maintained;
  15. Exhibiting lack of bias related to considerations of geographical location or cultural orientation of e-Mediator or use of facilities;
  16. Ensuring that the e-Mediator’s conduct is always professional and appropriate (respecting the protocol agreement regarding the access to parties, responsiveness to parties’ requests, taming tempers);
  17. Managing the continuation and the termination of the e-Mediation (addressing parties’ hanging up, technical failure, automated processes, etc.);
  18. Understanding how to translate face to face mediation techniques into the online environment.
3.8. Reaching agreement
  1. Ensuring parties have given their informed consent;
  2. Ensuring that agreement addresses issues, interests and rights as identified throughout the process.
3.9. Post-mediation process
  1. Encouraging parties to provide feedback on their experience in e-Mediation;
  2. Conducting follow-up when needed.