Presentation Center

James C. Melamed

Advanced Family Mediation Skills


  • Manage process: toward what ends?
  • Always challenging contexts
  • Interests & positive intentions - "Imagine"
 Negotiation Power
  • Overall: "The ability to influence another"
  • Essential Questions: 
    How organize one's thinking and actions relative to 
    participant power (amount) and power differential?
  • Qualities of "Negotiation Power:"
    • Relative
    • Changes
    • Limited
    • Real and Apparent
    • Exercise Has Benefits and Costs
    • Punish or Benefit
    • Enhanced by Skill and Resources
    • Enhanced by Ability to Endure Uncertainty
    • Enhanced by Good Negotiating Relationship
    • Depends on Other's Perception of BATNAs
    • Only Exists if Perceived and Accepted
    • No Single Thing!
    • Can Negotiation Power Be Measured?
      • As A Matter of Competence (When?)
      • How Respond to Perceived Power Differential
        Consistent with Overall Mediator Obligations

Negotiation Power Questions

  • Do We Balance Negotiation Power? 
    (if so, how reconcile with duty to be impartial?)
  • Basic Options:
    • Ignore Power Differential
    • Balance Power
    • Comparable Treatment
    • Empowerment - Maximization

Responsive Thoughts

  • many ways of looking at and dealing with the same thing - what you do needs to feel right for you - what is right is what works
  • rapport theory - matching, pacing, leading
  • rapport rapport rapport
  • resistance - agree with what is true for them - "grok" - grab gut
  • mediation paradox - better for one, less well for other - plates in the air
  • caucus - strategic not automatic - price you will pay
  • people can operate on more than one channel at a time
  • normative stories as effective delivery system
  • ethics: asset parties to consider best interests of children - quite unique in world of mediation - also a-z responsibilty in divorce mediation
  • assumption in first moments of parents as experts, and that this their best opportunity to reach agreement and serve their kids
  • key is to reduce /elim conflict about kids (if only for your kids) 
  • framing - past/future - "getting current" minimizing to icon
  • participants will snap back to past, also to presenting positions . . . til they find a better answer

Maximizing Mediation

Suggested Dimensions:

  • Assist each individual to be at their personal best
  • Assist participants to most capably problem solve to the extent they can do that
  • Assist each participant to achieve the greatest possible substantive satisfaction

Maximization as Aspirational Goal, Never Fully Achieved

  • An Imperfect Model
  • "Sweet Spots"
  • Mediator As Activist
  • Maximization as Distinguishing Quality for Mediation in the MarketPlace
  • Your Agreement House? 
  • What Do You Do To Empower & Maximize?



Mediator Strategies

Three Basic Ways Mediators Work:

  • Interest-Based, Option Development (joint problem solving)
  • Hypothesis Generation & Testing (mediator guessing)
  • Doubt & Dissonance (heat)

Facilitative Problem Solving Road Map

  • Process
  • Perspectives
  • Common Ground
    (interdependence, common interests, easy points of agreement)
  • Problem Solving Agenda
    how can we best . . ?
    what is the best way for us to . . ?
  • Information & Documentation
  • Goals, Interests & Positive Intention
  • Options
  • Selections
  • Integration

Interest-Based Joint Problem Solving

Working with Positions, Interests & Ultimate Positive Intention

Development of Options

  • how are you doing it now - what is working, what not?
  • what might make it better?
  • what other options might there be?
  • would you want to hear of a few other possibilities?

Negotiation - Selection from Among Options

  • item by item
  • the exchange environment and package deals
  • priorities
  • the shelf of differences


  • revisit shelf of differences for cross category packages and exchanges
  • the "Integrative Question" (repeat as necessary)
  • review the string of pearls - individually / jointly

Hypothesis Generation and Testing

Perfect Compliment to Participant Centered Problem-Solving

Best Balance May Depend on Assumptions Regarding Time and Resources

Mediation as a Process of Successive Approximation

  • Strategic Summarization
  • Hypothesis Development
  • Hypothesis Testing
  • Revise Hypothesis
  • Test Revised Hypothesis
  • Confirmation and Integration

Doubt and Dissonance

Why Turn Up the Heat?


  • De-position
  • Speak to Parts
  • New Perspectives

Why Does Heat Work? People Want to Make the Best Choice They Perceive Available
(a healthy tension of the mind)

Two Ways to Change People's Thinking:

  • Increase Number of Choices
  • Re-examine Perception of Best Choice(s)

Two Types of Heat: Individual and Mutual

Preferrability of Mutualized Process?

Two Types of Technique (actual and imagined)

Samples of Mutualized Doubt & Dissonance:

  • Two Sets of Arrangements
  • The Exchange Environment
  • The Hypothetical Question
  • A Fact-Finding Analogue
  • A Mini-Trial Analogue
  • "It Always Amazes Me . . "
  • "If You Were To Reverse Representational Rules . ."
  • The Parade of Horribles

Emotional - Relational Management

Manage toward what end(s)?


  • Teflon Mediator
  • Relevancy Check
  • Use of Ground Rules
  • Backtracking
  • Normalization
  • Mutualization
  • Acknowledgement Process (e.g., Getting Current)
  • Referral

Divorce Mediation and the Internet

  • Changing the Way Work and the Clients We Are Working With -
    Examples: Parenting Plan Center; Our Family Wizard; Child Support; Filing for Divorce
  • Not a Matter of Face to Face or Online - Rather, How Best Configure Face to Face, Online and Additional Communications
  • What Are All of the Ways We Use the Internet?
  • The Joys of Asynchrony
  • Issues of Distance & Cost, e.g., Post-Decree Modification
  • Part of Overall Empowerment and Maximizing Scheme?
  • Creation of Internet Capacity for Each Participant
  • Confidentiality and Security
  • Email, Instant Messaging, Cell Phones, etc., Use Between Parents and Between Parents and Children?
  • The "New (partially virtual) Family" and "Moving On"
  • The Future: "OnStar Mediation?"

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