Elements of Mediation

, by Leviton, Sharon C.

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ISBN: 9780534401580 | 0534401589
Cover: Paperback
Copyright: 6/1/2004

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Supplemental Materials

CHAPTER ONE Approach to Mediation

(8)

1. Know what Mediation is

2. Differentiate among Mediation, arbitration, conciliation, litigation, psychotherapy, and crisis intervention

3. Recognize the appropriate mix of procedures listed in number 2 above

4. Determine whether the dispute is appropriate for Mediation

5. Determine whether the disputants are appropriate for Mediation

CHAPTER TWO Prepare to Mediate

(8)

1. Recognize reasons parties choose Mediation

2. Know how cases come to Mediation

3. Understand the mediator's role

a. Establish rapport, confidence, and trust

b. Convey competency

c. Convey the impression of an ability to help parties resolve the conflict

d. Convey the ability to act as a neutral party

e. Control the process

f. Facilitate the process

g. Develop an atmosphere conducive to problem solving

h. Balance personal need for control with parties' need to discuss issues with each other

i. Monitor personal feelings regarding the conflict

j. Maintain fairness

k. Open communications channels

l. Translate and transmit information

m. Help distinguish between wants and needs

n. Create options

o. Serve as an agent of reality

p. Help the parties to save face

q. Recognize and respond to mounting tensions

r. Recognize and respond to withdrawal of either party

s. Help to break impasses

t. Be sensitive to ethical considerations

u. Stay within the boundaries of the process

v. Set the time and place for Mediation

w. Insure privacy for all during the sessions

CHAPTER THREE Preparing the Physical Setting

(5)

1. Choose a neutral site

2. Plan and arrange the office setting appropriately

3. Plan furniture and seating arrangements carefully

4. Use information gained from the referral source, the intake, and the "field trip" in planning the setting

CHAPTER FOUR Beginning the Mediation

(9)

1. Bring the clients into the mediation room

2. Seat the parties

3. Deal with the feelings of the clients, as needed

a. Be aware of brewing or overt hostility

b. Be aware of unusual concerns or of withdrawal

c. Be sensitive to any behavior that seems inappropriate or unusual

4. Make the environment safe to negotiate

5. Make an opening statement

a. Introduce yourself

b. Establish yourself as credible and open

c. Obtain the names and identify the roles of all persons in the room

d. Disclaim bias or partiality

e. Explain mediator's role and authority

f. Emphasize the informal nature of the process

g. Review the mediation process

h. Outline the procedures to be followed

1) Designate the order of initial presentation

2) Set the ground rules

i. Explain the caucus and when it might be used

j. Discuss confidentiality and privilege

k. Clarify parties' ability and authority to enter into an agreement

l. Deal with the logistics

m. Clarify parties' time commitments

n. Clarify parties' willingness to mediate in good faith

o. Answer questions and respond to concerns about the process

p. Get a commitment to begin

CHAPTER FIVE Ventilation, Information Gathering, Problem Solving, and Bargaining

(7)

1. Allow for ventilation to occur

2. Gather information about the dispute

3. Clarify issues

4. Establish negotiating distances

a. Identify what the parties want

b. Identify what the parties need

c. Establish the distance between the wants and the needs

d. Remain interest based rather than position based

5. Generate options and alternatives

a. Focus on needs

b. Discover ways of meeting the needs of all parties

c. Be creative

d. Discover ways to maximize the gains and minimize the losses

6. Analyze costs and benefits

a. Focus on arrangements most likely to be acceptable

b. Discuss the advantages and the disadvantages of each. Include such factors as

1) Attorneys' fees and court costs

2) Emotional costs of continued involvement

3) Time delays

4) Publicity

5) Risk of further damage to relationships

6) Benefit to maintaining relationships

7) Uncertainty of judicial discretion

8) Risk of damage to children

9) Risk that other party will not honor judgment

7. Encourage the parties to write a memorandum of understanding

CHAPTER SIX Techniques for Empowering, Caucusing, and Breaking Deadlocks

(14)

1. Empower the parties as appropriate

a. Place the burden of the problem on the disputants

b. Place the power of problem resolution on the disputants

2. Use the caucus as an adjunct to Mediation

a. Move from general session to caucus

b. Explore options

c. Discuss sensitive information

d. Determine case strengths

e. Determine case weaknesses

f Discuss perceived fair range of settlement

g. Speculate on what the other party might do

h. Speculate on what this party might do

i. Move from caucus to general session

j. Caucus as needed

3. Break deadlocks

CHAPTER SEVEN Family Conflicts

(12)

1. Be aware of the broad use of family mediation

2. Understand what makes family conflicts unique

3. Recognize behavior

4. Recognize feelings

5. Recognize power

6. Be alert during intake

7. Set ground rules carefully and sensitively

8. Be sensitive to continued impasses, missed appointments, or other delays

9. Know when to include the involved children in the Mediation

10. a. Attend to guardian ad liter issues, if necessary

b. Assess the age and maturity of the children as factors for determining the appropriateness of their involvement in the Mediation

11. Use homework assignments

12. Be creative in generating options, especially when children are involved

13. Be caring and empathetic and stay in role

14. Don't let your personal issues contaminate the process

CHAPTER EIGHT Co-Mediation

(4)

1. Consider co-mediation as the rule rather than as the exception

2. Know the advantages of co-mediation

3. Be clear about the role of the co-mediator

4. Develop clear signals between the mediator and the co-mediator

5. Review guidelines for effective co-mediation

CHAPTER NINE Ethical Considerations in Mediation

(2)

1. Reveal conflicts of interest

2. Reveal previous relationships

3. Charge a fair fee

4. Communicate confidentiality and privilege

5. Communicate the rules of Mediation

6. Advise that mediator is not a witness for either side

7. Deal with contacts between all parties involved

8. No subpoenas will be served immediately before, during, or immediately after a mediation session

9. Allow for problem ownership by the disputants

10. Avoid giving personal opinions

CHAPTER TEN Dealing with Hostility

(2)

1. Review guidelines for understanding and for handling hostility or hostile gestures in Mediation

CHAPTER ELEVEN Stressors, Stress Management, and Crisis Intervention

(9)

1. Be aware of the potential for heightened client stress in Mediation

2. Take a proactive approach to minimize client stress

a. Recognize the stressors related to Mediation

b. Screen the parties and the case

c. Arrange the office carefully

d. Take a field trip through the waiting room

e. Plan the opening statement

f. Caucus as appropriate

g. Empower the parties

h. Remain aware and sensitive

3. Recognize maladaptive behavior

4. Know how to intervene in a crisis

5. Move from Mediation to crisis intervention

6. Abort the mediation session, if indicated

7. Move back to Mediation, if possible

CHAPTER TWELVE Practical Tips for the Mediator

(4)

1. Take personal safety and the possibility of weapons seriously

a. Arrange your office

b. Seat the parties carefully

c. Approach the subject of weapons directly with clients

d. Review the Mediator's Safety Checklist

e. At the completion of a hostile or emotional mediation, arrange for each party to leave separately

2. Take notes judiciously during the mediation sessions

a. Keep notes private

b. Encourage disputants to take notes

c. Write only as much as absolutely necessary

d. Put your pen or pencil on the table between notes

e. Have a procedure for handling notes at conclusion of the Mediation

3. Don't believe everything that is said by the parties

4. Remember that as long as the parties remain at the table, resolution is possible, regardless of what they say

5. Change the disputants' perspective; don't try to change their mind

6. Be aware that some offers will inhibit or even stop movement toward settlement

7. Allow parties to do some venting; observe the process for clues

8. Don't spend time on nonproductive issues

9. Attend to the importance placed on an issue by the disputant

10. Assess movement gained from bad offers as well as good offers

11. Listen for the soft spots in a disputant's case and arguments

References

(1)

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