COURSE INTRODUCTION

Course Overview

The Introductory Mediation Session

The Demeanor Issue

Rapport with Participants

Begin with Parenting

The Calendar Metaphor

Current Parenting Arrangements as Entry

Identify Things that are Working and Things that are Not

Child Support – Guidelines Set Legal Context

Being a Mediator

Mediation Strategy

Facilitated Problem-Solving

Hypothesis Generation & Testing – aka “Mediator Guessing”

To what extent are children included in divorce mediation?

Ethos of Participant Self-Determination

What is better for children, joint or sole custody?

Doubt & Dissonance – aka “Heat”

Mutualized Doubt & Dissonance

Individualized Doubt & Dissonance

The Caucus

Process vs. Substantive Expertise

The End Game

The String of Pearls

3 Strategic Approaches: Problem-Solving, Mediator Guessing and Heat

Communication Skills and Strategies

Property & Debt Division

Child Support Guidelines – A Rebuttable Presumption

Checking Support Guidelines by Custom Calculations

Spousal Support – The Lightening Rod Issue

Does the mediator have a duty to balance power?

General order of issues: Parenting; Property; Child Support; Spousal Support

Financial Integration – Icing the cake

Drafting Issues

Mediation Ethics

How to develop a successful mediation business

CONTINUING THEMES

Mediation as a Fascinating Endeavor

The Basic Equation

Progress by Incremental “Baby Steps”

The Decision to Divorce as an Anguishing Comparative Choice

Conflict as a Gap Experience

Truth as “Irrelevant” in Mediation

Satisfy Perspectives by Ensuring that They are Capably Heard

Parts Theory

Speak to the Part(s) of Participants with which You can Make Progress

Speak in Aspirational Terms to Access Participant Resourcefulness

Who Should Speak First?

All Decision-Making in Mediation is Comparative & Adaptive

Mediation as Best Opportunity to Reach Agreement

What Does it Mean When People Choose to not Settle in Mediation?

Participants Make the Best Choices They Perceive Available.

Mediation as Comparative Decision-making

Strategic Mediation

Relational Discussion as Strategic Intervention

Less is More

Potential Conflict of Interest Between Mediator’s Goal of Agreement and Participant Best Interest

Other Possible Goals for Mediation?

Do We Have a Goal of Participant Empowerment?

How Do We Reconcile Participant Empowerment with our Duty to be Impartial?

Do We Have Relational Goals?

Do We Have Goals oF Elevating Participant’s Ability to Resolve Conflict in the Future?

The Mediator Toolbox

Organize Techniques by the Functions that They Serve

What Do You Do When You Don’t Know What to Do

Ask Outcome Questions

Ask Evidence Questions

Evidence Questions Elicit Participants’ Experiential Criteria for Yes

Summarize

People Can Not Stand To Be Mis-Summarized

Normalization

Three Part Normalization

Mutualization

The Associative Frame

Flexibility Can Be Achieved by “New Perspectives” (Disassociation)

Created by Shifting Perspective in Terms of Person, Place and/or Time”

The Internet Is Changing Everything for Divorce Mediation

KEYS TO CONFLICT RESOLUTION - DEPOSITIONING

De-Positioning is a Means of Creating Flexibility in Mediation

All Behavior is Ultimately Positively Intended

Start Depositioning with a word such as “Imagine”

“If You Got Your Position, What Are All of the Things That Would be Taken Care Of?”

Four Possible Responses to De-Positioning “Imagine”

A Positive Interest is Something a Participant is Attracted To

A Negative Interest is Something a Participant Would Like to Avoid

Clarify and Specify Abstract Responses to the Concrete Experiential

Working with Revenge Motives

Even Revenge is Ultimately Positively Intended

Summarize Positive Interests and Intentions for Participant in Directional Terms and/or on a Gradient”

Summarize Cumulative Positive Interests and Intentions for Both Participants

Joint Challenge to Get Each as Much as Possible of What Each Wants”

DAY TWO

KEY CONFLICT RESOLUTION CONCEPTS (cont.)

Depositioning

Perspectives

Assist Perspectives to be Heard, Really Well, One Time

First Question for Each New Discussion is: “What is Your Perspective Regarding . . .”

Until Participants Have Had the Experience of Being Heard, They are not Open to Any New or Other Possibility

Work Within Participants’ Respective Beliefs and Values

Beliefs and Values Will Change only when New Behavior is Inconsistent with Previously Help Belief or Value

Participants Need to Agree on Who Will Do What (and When), not Why Those Things Will be Done

THE SHARING OF PERSPECTIVES

Capably Sharing Perspectives

Early Notice of Requested Sharing

Offer Anticipatory Time Frame

GETTING CURRENT

“Getting Current” – A Past-Focused Perspective Sharing Frame

In Perspective Sharing, Presume Disagreement

“Semi-Active Listening” in Joint Session

Ask Clarifying Questions to Ensure that Participant Experience Mediator that Mediator Capably Understands

Mediator Prepares to Summarize Participant Sharing

The Goal is to Give the Participant the Experience of Being Heard by Effective Summarization

Discretionary Choice By Mediator Whether To Seek Acknowledgement from Other Participant

The Mission is to Give Participants the Experience of Being Heard

PARTS THEORY

Inter-personal and Intra-personal Conflict

 

Confusion Indicates Lack of Integration of Parts

 

Explore Individual Participant Confusion in Caucus

 

Parts Theory

 

Mediator As Ally of Participant’s Integrating Part

 

Specifically Identify Parts or Voices – Converting to Positive Interests if Possible

 

Segregate Identified Parts By Relative Important

 

Come Up With Specific Proposals to Get You Your Most Important Parts

Resolution: Who Will Do What When – A Convergence of the Means

BATTLE TO JOURNEY METAPHOR

Converting Battle Metaphor to Journey Metaphor

 

Tailor Journey Metaphors to Participants

 

Base Metaphors in Participant Resource States

DISPUTE RESOLUTION MYTHOLOGY

BARGAINING IN THE SHADOW OF THE LAW

The Shadow of the Law is a Matter of Perception and Perspective

Non-Legal Shadows Just as Important and Effective as Legal Context

NEGOTIATION POWER

What is Negotiation Power?

 

Power is Relative Between Participants

 

Power Changes Over Time

 

Power is Limited

 

Real and Apparent – Perceived and Believed Power is Operative

 

Exercise of Power will have Both Benefits and Costs

 

Power is Ability to Benefit or Punish the Other

 

Power is Enhanced by Resources

 

Power Enhanced By Participant’s Ability to Endure Uncertainty

 

Power is Benefited by a Good Negotiating Relationship

 

Power Depends on Other’s Perception of Your Options

 

BATNA: Best Alternative to a Negotiated Agreement

 

MLATNA and WATNA

 

Power Only Exists if Accepted

 

Negotiation Power is No Single Thing

 

Option 1: Equalize or Balance Negotiation Power

 

Option 2: Mediator Does Not Impact Power

 

Option 3: Comparable Treatment

 

Option 4: Maximization

 

Assist Individual to be at Their Best

 

Assist Participants to Most Capably Work Together

 

Assist Each Participant to Get as Much Substantive Satisfaction as Possible

 

When in a Does the Mediator Make Competency Decisions?

 

Decision-making Competency

THE ADR PROCESSES:

EXPERIENCING NEGOTIATON, MEDIATION & ARBITRATION

The Unsuccessful Negotiation Experience”

The Concerned Observer Perspective”

The Participant’s Mediation Experience – A Mixed  Bag

How Manage Conflict Between Participant and Mediator?

Matching

Pacing

Leading

The Mediator Experience – A Mixed Bag

The Participant Arbitration/Adjudication Experience

The Arbitrator/Adjudicator Experience

ALTERNATIVE DISPUTE RESOLUTION (ADR) OPTIONS

The ADR Options

Adjudication – by the People

Private Arbitration – by Agreement

Court-Annexed Arbitration

Private Tribunals

Ombuds

Fact-Finding

Distributive and. Integrative Negotiation

Mediation

Conciliation

Mixed Processes: Med-Rec and Med-Arb

DEFINING AND DESCRIBING YOUR MEDIATION PROCESS

Use Written Descriptive Materials and Send in Advance to Participants

Make a Short Mediation Opening Statement

Key Qualities of Mediation – also Empowering Technique

Mediation as a Voluntary Process

Mediation Defined as “Assisted Negotiation”

Mediation as a Collaborative Process

Participants in Control – Nothing can be Imposed

Mediation as a “Confidential” Process

Possible Use of the Caucus

Mediation as an Informed Process

Mediation as an Impartial, Neutral, Balanced & Safe Process

Description of the Mediation Process as a Rapport Development Opportunity

DAY THREE

TYPES OF CONFLICT

Relational Conflict: Segregate Past from Future

Past-Focused “Getting Current” Relational Sharing and Acknowledgement

Future Relationship as a Problem-Solving Discussion

Data Conflicts Have Data Solutions

Interest-Based Conflict Addressed by Seeking Maximum Satisfaction of Interests

Structural Conflicts call for Structural Responses

Work Within the Context of Existing Beliefs & Values

WAYS OF RESOLVING CONFLICT

Denial/ Withdrawal

Suppression / Smoothing-over

Power / Dominance

Simple Positional Compromise

Integrative Negotiation – All Things Are Possible

The Integrative Question – Any Improvements You Could Both Support?

NEGOTIATION APPROACHES

Competitive and Collaborative Negotiation Approaches

PRINCIPLED NEGOTIATION

Separate the People from the Problem

Insist on Interests

Generate Multiple Options Before Deciding

Decide by Objective Criteria

The Importance of a Face-saving Rationale

BATNA: Best Alternative to a Negotiated Agreement

Elevating BATNA Elevates Negotiation Power

The MLATNA & The WATNA

Modeling Interest-Based Approaches

Matching, Pacing & Leading

INITIAL CONTACTS

An Immediate Caucus Session

Rely on Descriptive Materials

Options for Beginning the Mediation

The Mediator’s Opening Statement

THE INTRODUCTORY MEDIATION CONSULTATION

PRESSING ISSUES

An Interim Understanding

Interim Understanding Not Precedental

Interim Understanding Not Admissible

Retroactive Adjustment

OVERALL PROBLEM-SOLVING MODEL

1. Process Definition

2. Capably Hear Each Side’s Perspective

3.  Consider the Common Ground

4.  Develop Problem-Solving Frames

5.  Obtain Desired Documentation & Information

6.  Develop a Problem-Solving Knowledge Base

7.  Identifying Acceptable Arrangements

8.  The Exchange Environment – Package Deals

9.  Integration and the Integrative Question

COMMON GROUND TECHNIQUES

Common Interests

Interdependence

Easy Points of Agreement

MEDIATION STRATEGY

Participant Centered Problem-Solving

Mediator Centered Guessing

Mediator Heat – Individualized and Mutualized

Hypothesis Development & Testing Model”

Day 4

BEING A MEDIATOR: THE MEDIATOR TOOLCHEST

Meet Participants Where They’re At

Balance Business and Responsiveness

Divorce Mediation is Interdisciplinary

You can offer evaluation information through “other voices”

Impartiality, Neutrality & Balance

The Right Way is the Way That Works

Be Outfocused and Notice Attraction & Resistance Responses

Roles of the Mediator – Be Flexible

Benefits of Mediation – A Soft Sell

COMPARING CIVIL & DIVORCE MEDIATION

CAUCUSING WITH PARTICIPANTS

The Use of Mediator Substantive Expertise

 

How Does the Mediator Respond to Secrets?

DOUBT & DISSONANCE

Individualized and Mutualized Doubt & Dissonance

Two or More Acceptable Arrangements

The Exchange Environment

The Hypothetical Question

Fact-Finding – Non-Binding Outside Substantive Expertise

Golden Rule: If You Were In the Other’s Shoes

The Parade of Horribles

The Eight Questions

EMOTIONAL – RELATIONAL MANAGEMENT OPTIONS

Teflon Mediating: Ignore Unhelpful Information

The Relevancy Check

Ground Rules as Behavioral Norms

Summarization

Normalization

Mutualization

Acknowledgement – such as “Getting Current”

Referral

PRACTICING PROBLEM SOLVING

COMMUNICATION SKILLS

Question Forms

Outcome and Evidence Questioning

Cumulating Desired Outcomes

The Conditional Close

The Reference Point

RAPPORT DEVELOPMENT

Matching

Pacing

Leading

Cross-Matching Content and Physical

Physical and Substantive Matching, Pacing & Leading

Rapport “Bonding” Language”

Work Within Existing Beliefs & Values

Metaphors and Analogies: Convert Battle to Journey

Quotes and Speaking Through Another Voice

Normative Stories Introduce Options Safely

Manipulation or Maneuvering?

DAY 5

MEDIATING CHILD SUPPORT

Guideline and Custom Calculations

Almost all is a matter of Perspective

Identifying the Child Support “Space”

The Shelf of Differences

CHILD SUPPORT GUIDELINES

Child Support Guideline Calculations and Spousal Support may be Interdependent

The Duration of Child Support

Child Support also Interdependent with Parenting Arrangements

Documenting Child Support Guideline Consideration

Child Support Without Tax Consequences

Dependency Exemptions for Children

Parties Can Freely Contract Who Gets Dependency Exemptions

Dependency Exemptions Can Be Conditioned

Head of Household Tax Filing Status

CUSTOM CALCULATION OF CHILD SUPPORT

Presenting and Refining Budgets

Custom Calculation of Child Support from One Party’s Perspective

MEDIATING SPOUSAL SUPPORT ISSUES

Spousal Support as Lightening Rod Issue

Spousal Support is Generally Modifiable

Life Insurance Generally Backs Up Spousal Support Obligation

Each Party Entitled to a Style Not Overly Disproportionate

Both Amount and Duration Issues

Comparable Suffering Standard

What are the Goals and Purposes of Support?

Many Tax Issues Associated with Spousal Support

Make Assumptions Explicit

Make Triggers and Non-Triggers Explicit

Excess Support

Custom Calculation of Spousal Support

Parties Will Commonly Comparably Share a Shortfall

Calculate Recipient’s Adjusted Entitlement

Consider Adding Tax Liability

Consider Sharing Tax Savings

Charting Spousal Support

Changes in Amount are Based on Some Assumption(s)

The Area of Overlap is an Area of Agreement

Quantify Disagreements

Consider Converting Disputed Support to a Property Issue

Mediating Temporary Spousal Support

PROPERTY & DEBT DIVISION

Community and Equity States

1.  Disclose the Property

2.  Characterize the Property

3.  Determine Values

4. Determine any Reimbursements

5.  Determine Allocations

Quantitative and Qualitative Considerations

When Do We Value?

Personal Property Division

Inventory and List Property

Participants Initially Value and Indicate Preferences

Consider Resolving Mutually Desired Items by Auction

List Important Property Items in the Agreement

The Marital Home

Qualified Retirement Assets

Balancing Property & Debt Division

Charting Property & Debt Division

SUMMARY OF TAX ISSUES

DRAFTING THE UNDERSTANDING

ETHICS SUMMARY

DEVELOPING A SUCCESSFUL MEDIATION PRACTICE