Complete List of Topics
Day 1
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
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
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
Converting
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
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
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
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
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