ADR Family & Workplace Mediation 3 — Questions and Answers
Question 1: Which of the following best describes 'transformative mediation' in a workplace conflict context?
- Focusing solely on reaching a binding settlement agreement as quickly as possible
- Empowering parties to recognize each other's perspectives and make their own informed decisions (Correct answer)
- Using a panel of three mediators to increase neutrality
- Transforming the legal claims into arbitration proceedings
Correct answer: Empowering parties to recognize each other's perspectives and make their own informed decisions
Transformative mediation prioritizes shifting the quality of the interaction—supporting empowerment and mutual recognition—over producing a specific settlement outcome.
Question 2: In a family mediation involving allegations of domestic violence, what should a competent mediator do before proceeding?
- Conduct the session normally but remain alert to coercion during joint sessions
- Screen each party separately to assess safety and determine whether mediation is appropriate (Correct answer)
- Require the accused party to sign a no-violence pledge before the session begins
- Refer the case directly to arbitration to avoid bias
Correct answer: Screen each party separately to assess safety and determine whether mediation is appropriate
Safety screening is an ethical prerequisite in domestic violence contexts; mediation may be contraindicated if coercive control undermines a party's ability to participate freely.
Question 3: Which communication technique is most effective when a party becomes highly emotional during a workplace mediation session?
- Interrupting to redirect the conversation to legal facts
- Using active listening and empathic acknowledgment before returning to substantive issues (Correct answer)
- Calling a recess and asking HR to counsel the employee
- Reminding the party that emotions are not relevant to dispute resolution
Correct answer: Using active listening and empathic acknowledgment before returning to substantive issues
Active listening and empathic acknowledgment validate the party's emotional state, which typically de-escalates the situation and allows substantive dialogue to resume.
Question 4: A parenting plan mediation has stalled because both parents insist on primary custody. Which reframing technique might best move the discussion forward?
- Asking each parent to describe their ideal typical week with the child (Correct answer)
- Telling both parents that joint custody is the only legally recognized outcome
- Requesting written legal briefs from each parent's attorney
- Separating the parents and conducting binding arbitration on custody
Correct answer: Asking each parent to describe their ideal typical week with the child
Asking parents to describe a typical week shifts focus from the abstract legal concept of 'primary custody' to concrete parenting time and responsibilities, often revealing compatible schedules.
Question 5: What is the primary distinction between a mediator's role and a conciliator's role in workplace disputes?
- A mediator facilitates direct party communication, while a conciliator typically communicates proposals indirectly between parties (Correct answer)
- A mediator renders a binding decision, while a conciliator only advises
- A conciliator always represents management, while a mediator is neutral
- There is no meaningful distinction between the two roles under US law
Correct answer: A mediator facilitates direct party communication, while a conciliator typically communicates proposals indirectly between parties
A mediator facilitates joint dialogue while a conciliator typically works more separately with each side, often proposing solutions, making conciliation closer to shuttle diplomacy.
Question 6: An employer and employee reach a verbal settlement in workplace mediation but the employee later refuses to sign the written agreement. What recourse does the employer most likely have?
- None, because oral settlements in mediation are never enforceable
- File a motion to enforce the agreement if it meets contract formation requirements and was documented in a signed mediation memorandum (Correct answer)
- Restart mediation from the beginning with a different mediator
- Seek immediate court injunction based on the mediator's notes
Correct answer: File a motion to enforce the agreement if it meets contract formation requirements and was documented in a signed mediation memorandum
If a written mediation agreement or memorandum was signed during the session, it may be enforceable as a contract; absent that, enforceability depends on whether mutual assent and consideration can be proven.
Question 7: In divorce mediation, 'BATNA' stands for Best Alternative To a Negotiated Agreement. How should a mediator use this concept?
- Share each party's BATNA with the other to pressure faster settlement
- Help each party privately understand their own BATNA so they can evaluate settlement proposals realistically (Correct answer)
- Calculate the BATNA mathematically and split the difference as the settlement
- Disclose the BATNAs in the final agreement as binding reference points
Correct answer: Help each party privately understand their own BATNA so they can evaluate settlement proposals realistically
The mediator helps each party privately assess their realistic alternatives (e.g., litigation outcome) so they can make informed decisions about whether proposed terms are better than their alternative.
ADR Family & Workplace Mediation 3
Which of the following best describes 'transformative mediation' in a workplace conflict context?