Maximizing Mediation Outline

Maximizing Mediation
(www.mediate.com/Integrating)

with
James C. Melamed, J.D.

Maximization in Dispute Resolution

A. What do we mean by "maximization?"

1. assisting participants to be at their individual best

2. assisting participants to most capably work together

3. assisting participants to obtain the greatest possible satisfaction of their interests.

B. Mediation as best opportunity for maximized problem solving.
Compare: Adjudication, Unassisted Negotiation and Mediation

C. Beyond Barely Sufficient Processes and Agreements to Most Capable Processes and Agreements

D. Maximization at Micro and Macro Levels

A Theory of Maximizing Mediation

A. Theoretic Options Regarding Power, Power Disparity, Competence and Mediator Response:

Operate under the illusion that the mediator does not influence participant power

Attempt to balance participant power

Seek to "comparably" empower (or disempower) participants or

Embrace empowerment and carry it to the fullest extent of "maximization"

B. Sample Maximizing Opportunities

Location

Early Communication with Parties

Number and Length of Meeting(s)

Homework

Caucusing

Use of the Internet

Use of Cognitive and Resource State Anchors

Use of Advisors

Contemplation

C. Suggested Adjustments to Evaluative Model

1. Mediators Moving Beyond the "Medical (evaluative) Model" to Reflect Responsibility back to Parties and Counsel

2. Become Capable at Problem Solving
(need for complimentary approaches to guessing and evaluation)

Three Ways Mediators Work

A. The Interest-Based Option Generation (problem-solving) Approach

B. The Hypothesis Generation and Testing Approach (guessing) and

C. The Doubt and Dissonance Approach (evaluation)

Interest-Based Option Generation Approach

A. Consent to Process

B. Sharing Perspectives

C. Common Ground - Common Interests, Interdependence, Easy Points of Agreement

D. Problem Solving Statements

"How can we best . . .?"

"What is the best way for us to . . .?"

E. Desired Information and Documentation

F. "De-positioning" to Interests and Positive Intentions - resetting the table

G. Develop Options

H. Selecting from Options - The Exchange Environment and Package Dealing
I. Integration and Finalization

The Hypothesis Generation and Testing Approach

Mediation as a Process of Successive Approximation

A. Strategic Summarization

B. Hypotheses Development

C. Hypotheses Testing

D. Revise Hypotheses

E. Test Revised Hypotheses

F. Confirmation and Integration

Doubt and Dissonance - Creating a Healthy Tension of the Mind

A. Mutualized Dissonance vs. Individualized Heat

B. Two Sets of Arrangements

C. The Exchange Environment

D. The Hypothetical Question

E. Fact-Finding Analogue

F. The Parade of Horribles

The Challenge: Supporting Most Capable Problem-Solving

A. Structuring the Mediation

B. Locating the Mediation

C. Resistance and Homework

D. Memorializing Progress

E. The question: Can we do better than a single sit crisis mediation?

Presentation Center

James C. Melamed

Interest-Based Option Generation Approach

Doubt and Dissonance - Creating a Healthy Tension of the Mind