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Wow! I’ve been overwhelmed with work and haven’t posted in months. But I’m back now and thinking about the topic: Is there good and bad mediation practice?
What Is Mediation – Revisited
Within the field of family and divorce mediation, there exist two different types of mediations and two different types of processes which depend upon the needs and desires of the parties. Any given couple could at one point desire and need "structural divorce mediation" and at another point desire and need "impasse divorce mediation." The processes are not interchangeable. They serve different needs within the same field, although there is undoubtedly some overlap between the two. 1 Comment
Needs and Interests
For many mediators, the starting point in a mediation is to identify needs and interests and then to work from there toward a mutually agreeable resolution. In the view of these mediators — and based upon the seminal work “Getting to Yes” by Fisher and Ury — this helps parties move off their positions and toward a resolution that would be acceptable to both parties.
Structural Mediation vs. Interpersonal Mediation
In the ongoing debate among mediators, questions frequently arise as to whether one needs subject matter expertise; whether a mediator should be evaluative or not; and how much training in the process of mediation is necessary.
Group Bonding Discussions and Mediation
I have noticed a particular phenomenon in some of my mediations when parties discuss things in a way that may be appropriate in a group bonding experience instead of discussing it in a way that is appropriate with the particular person in the room.
Emotions are not a Fixed Commodity
I recently shared a personal experience with a friend. The details are not important. Her response upon hearing my story was to register outrage at someone’s behavior, on my behalf. I explained that I did not feel outrage, that I understood the perspective of the other person, and that I was able to move on from it without anger. She continued to insist, however, that what the other person had done was “wrong”, and seemed to imply that I should feel outrage: and that I was doing myself an injustice, or perhaps being made a fool of, by not feeling it.
It is a basic principle of mediation, that mediators should focus on the needs of the parties. While the needs of parties are always relevant, in my view, focusing exclusively on the needs of the parties as the mediator understands them or as the parties express them is often insufficient.
Questions such as: “Who do I want to be?” and “What assumptions am I making about what I want to do or what will make me happy or what comports with my values or my morality?” can yield answers that not only have an impact on the direction of one’s entire life but on the conflict at hand.
An expert is not someone you throw your entire problem to and just wait for a result to pop out. An expert, when consulted appropriately, can be an extremely helpful aid to a problem. However, an expert, when consulted without care, can give you the false confidence to make exactly the wrong choice.
Questioning Assumptions — the Key to Self-realization and Conflict Resolution
I look around and see an overload of discussion about mediation and conflict resolution. There is so much writing that it begins to feel that there is not enough focus. When I ask myself what is the simplest message I would want to convey to both parties and mediators, one of the most basic is to help parties question their assumptions.
We Each Have Something Different to Offer
It is no secret that there are many different approaches to mediation. In the world of mediators, we often classify them as facilitative, evaluative and transformative. Even these labels are unclear and possibly incomplete. Why do we have such vast differences in our approaches? I think one reason is that mediators are “called” to the practice of mediation for different reasons. So, some mediators want to help resolve disputes that are in the court system.
Helping Parties Have the Conversation They Want to Have
How often have we all wanted to say something to someone important in our lives, and yet our meaning is misunderstood; our words fail us; or confusion ensues and we wonder what happened. The same holds true for parties, and for many parties this is the cause of their conflict.
From Diane Cohen
Mediate.com has provided a wonderful service to the mediation community to both those who want to write about mediation and those who want to read about it. By offering ready access to such articles and a simple way of publishing one's work, they facilitate communication about mediation in a way that is a benefit to all.
Standards of Practice in Mediation
In an effort to promote mediation and to avoid internal squabbling within the field, mediators over the past 16 years (since I became a mediator) have declared a truce on differences in mediation approaches.
Judging Before You Listen
This morning I watched a Ted Talk by Evelyn Glennie about how to listen (See below). I found it fascinating for a few reasons.
The Other ADR
I recently had two unsatisfying small dollar amount purchases, which I would have never pursued in small claims court, but which got resolved happily through the strong arm of the credit card company in one case, and Amazon, in the other. I see this as a great ADR service by private companies with clout.
An important goal of mediation is to understand anger, to explore it, to get behind it and to help the parties both understand what led to it. Once they do understand, they will be in a position to decide rationally where to go from there.
Understanding Not Diagnosing
As humans we are often driven to try to understand what goes on around us. Often, we jump to conclusions in trying to reach that understanding. As mediators, we should resist the urge to make assumptions about what motivates parties.
To Caucus or Not To Caucus
I recently had a discussion with a group of mediators who felt that caucusing was a good intervention.
Power and Mediation
When Parties Argue In an Unfocused Way
Spreading the Word About Mediation
As mediators, we often wonder how to spread the word about mediation — both as a way of helping those in conflict, and as a way of drumming up business.
Argument versus Analytic Discussion
Pinpointing the Disagreement
When parties come to mediation, they usually do not know why they are having trouble with their conflict; if they did, they’d probably fix it themselves
Evaluative mediation is generally understood to be a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case
Playing the Role of Coach
Someone I know works for a large retail corporation, and has been suffering fears of being fired recently. As he talks about his concerns, he speaks with anger and resignation about how other people tell him that he is being targeted to be fired and how unfair his manager is in his criticisms. As a friend, I engaged him in a dialogue about his work and the criticisms the manager was offering and asked for his objective view about the specific criticisms. It turned out that there were areas in which he thought he could improve.
Fairly Legal Strikes A Real Note
Although I hesitate to take the new television series, Fairly Legal, too seriously, it can be an opportunity to see how the makers of the show — and therefore, perhaps, the public — imagine that parties might react to particular mediator interventions.
Mediation And Self-Actualization
One of the things that has always drawn me to mediation is the role that the mediator plays in helping parties think meaningfully about what they want in ways that they may never have before. This seems counter-intuitive since a mediation is a discussion between two parties, rather than an in-depth discussion with one party (especially if the mediator does not caucus, as I almost never do).
A Graceful Exit
As anyone who has observed history over the last century can attest, the handling of the situation in Egypt can yield results that range from the dire to the glorious. Obama’s conflict resolution skills may play a role in determining which way things will go.
What Is The Role Of A Lawyer In A Divorce Case?
Although I have been involved in the mediation field for 15 years, started out with a course in divorce mediation, and am immediate past co-president of the Family and Divorce Mediation Council of Greater New York, I have only dipped my big toe into actually practicing divorce mediation. Mostly, I have concentrated on custody and visitation, workplace and other relationship types of mediation. Why have I steered clear of divorce mediation?
When parties come to mediation, they may or may not have a clear idea of what they should expect, or in fact, what mediation is. It is therefore common practice for mediators to tell parties what the process of mediation is, so that everyone is clear. Although it is appropriate for mediators to make sure that both the mediator and the parties agree on what the process will entail, should the mediator be the one deciding — or mandating — what the process is? Ironically, a basic principle of mediation is self determination. Yet, is it self-determination to decide for the parties what the process should be?
Walking The Walk
Something compels me, every once in a while, to ask other mediators what they have learned from mediation that guides them in their daily lives. I always expect them to say that they try to listen to what others have to say and to express themselves clearly; and in both cases, to check for understanding. But mediators always surprise me by saying other sorts of things. I’ve discovered that everyone has a different take on what’s important and also, of course, that even upon reflection, a lot of the experience we have as mediators gets lost when we are the “parties”.
A Productive Mediation Can Pay Untold Benefits
Sometimes in the course of a mediation, a party will express a concern about the nature of the communications with the other party in their ongoing lives. In general, my approach is to let the parties figure it out themselves, just as I would any other issue in the mediation. This has the benefit of not only avoiding “blame” by the mediator, but it also allows for the party to reflect upon how they are hearing the dialogue. I am often reminded in such mediations that my ear for their dialogue is different than theirs. This is especially so if they have a long relationship: they may in fact share a common shorthand and because of their experiences with one another, make certain connections which I would not make.
Mediating the issues that parties have in an ongoing relationship is one of the most satisfying uses of mediation I know. It is wonderfully complex and non-linear, employs all the skills of a mediator and thrives on unadulterated self-determination. Relationship mediation involves such parties as married couples, divorced parents, co-workers, friends, romantic couples, or related parties; in other words: any pair or group of people in an ongoing relationship. A recent mediation is a case in point. It involved a divorced couple, still passionate in their feelings, yet so different in their sensibilities that every simple interaction was fraught with intense emotion.
Freeing The Parties To Agree To What They Really Want
One of the things I love about mediation, is the way it so often helps parties agree to things they really want, but somehow felt they shouldn’t ask for. A case in point was a recent custody and visitation mediation.
Why Do People Get Married? (And Why Do They Get Divorced?)
Pairing up for life is the ideal in our society. We take it so much for granted that we don’t question why people do it and are saddened when the marriage ends. Yet, in order to understand why marriages end, it may be important to first look at why people get married in the first place. 1 Comment
Unpacking What Mediators Do
After being intensely involved in the field of mediation for 15 years, I am struck by the fact that mediators still can not reach a consensus on what mediators do.
Serving The Needs Of Our Clients In Mediation
Clients seek the services of a mediator for a variety of reasons. The services the mediator provides should reflect the reasoned desires of the clients. In this brief article, I will list some of the reasons clients consult a mediator and how these reasons determine what type of services the parties need.
Is Mediation The Right Word?
There has been a debate going on in mediation circles for many years about the validity of different approaches to mediation. In recent years this debate has been muffled, but still lingers beneath the surface. It occurs to me, however, that some of these differences are not differences in style, but actual differences in the services being offered. Some mediators are offering hybrid services, perhaps without being aware that they are doing so.
What Facilitative Mediation Has To Offer
Facilitative mediation (as I know it and practice it) is the only process I know of which helps parties think about how to work through difficulties and toward a resolution of their own making without outside pressure. 1 Comment
Mediation As An Alternative To Therapy
I was drawn to mediation because of what I saw as its unique ability to create greater happiness. I saw it as an alternative to therapy in many ways that was more suitable for people who were not mentally ill and who did not feel they needed to be diagnosed and treated, but to be understood and have their needs and desires addressed. 6 Comments
The Art and Science of Summarization in Mediation
There is often nothing more important to a successful mediation than insightful summarization of the parties’ perspectives. 2 Comments
Neutrality Is Desirable And Attainable
It is a fundamental principle that a mediator should be unbiased as between the parties. It is also generally accepted that a mediator should avoid acting upon his or her opinions. It is not universally accepted, however, that it is possible for the mediator to avoid forming opinions, or at least having them solidify, regarding the parties’ situation in the first place. 1 Comment
Mediating How People Get Along
Mediating how people get along is important in many different areas of mediation. In some case, the entire set of issues between the parties may be matters of tone, subtle behaviors, etiquette, style and world view. Helping parties deal with these sorts of issues effectively can be the key to many mediation cases, and can add value to the resolutions achieved in a mediation case.