Outline of a Basic Family Mediation Process: Part 5 of 8 – Starting the Mediation

5 - Starting the MediationReference to the guiding principles of the process is appropriate at this stage, as well as ensuring that the parties are comfortable…

___________________________

As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators.

PART 5 – STARTING THE MEDIATION

There are several distinct aspects of an early phase of a mediation session. They include:

(a) Introduction: reviewing the purpose of mediation, the terms of the agreement, the time that the parties have available, the role and purpose and rules of caucusing, the limits on confidentiality, the issues that the parties wish to discuss, and an overview of how the meeting will progress. Reference to the guiding principles of the process is appropriate at this stage, as well as ensuring that the parties are comfortable. In some cases, it will be appropriate for the mediator to re-screen the parties before each session, meaning to check in privately and confidentially with each before the mediation to ensure that the assessment of suitability and process design remains appropriate.

(b) Inventory of issues: it is wise to ask the parties to inventory all possible issues at the start of the mediation. This reduces the risk of a party putting a new issue on the table at the 9th hour.

(c) Selecting the order: if there are urgent matters that need to be addressed, these should be dealt with first. Accordingly, you should briefly canvass each issue and ask the parties whether there is any urgency.

(d) Determining whether the parties wish to deal with issues one at a time or all together. Mediation clients can be justifiably nervous if they feel that they are making concessions on important issues before they have gained any concessions themselves. Anticipate this reasonable anxiety and discuss it with them.

(e) Assess whether there are any issues that either party needs to have legal or other advice on before proceeding further. It is the mediator’s responsibility to understand the circumstances in which a party may be prejudiced by proceeding with mediation—eg/ an expiring limitation period; negotiating parenting schedules without understand the implications for child and spousal support—and mediators should not allow parties to suffer harm unknowingly.

(f) Allow parties the freedom to talk, at their pace, and in their way, without interruption unless you determine bullying, coercion or abuse. Be comfortable with the parties’ own tolerance of conflict, and emotionality. Your role at this stage is to ask open ended questions, assist the parties in identifying their interests and understanding each other’s concerns. You will use this phase of the process to model respectful listening, and to emphasize that to listen and understand is not the same as agreement. Use this phase of the process to encourage the parties to feel safe enough to make the shift from blame, judgement and taking positions to exploring ways to problem-solve together.

(g) Assist the parties in arriving at a clear understanding of the real issues they need to resolve, and in framing them in a way that is forward-thinking and constructively problem-solving.

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Coach your client to be a better negotiator!

2006_0622June060115I recently gave a workshop to a fantastic group of mediators in Winnipeg at the ADR Institute of Manitoba.

The topic: Coaching in ADR: attitudes, questions and strategies to help you help your clients negotiate more effectively.

Here are some tips from the presentation:

1. Our clients all come to us from a place of fear. They fear loss: of what they want or need, of a relationship, of control, or of bargaining power. We know from research that people are more likely to focus on what they have to lose in a negotiation than what they have to gain.

They also may fear reprisal from the other party or others; the impact that an emotional discussion might have on them or the other party; or the process itself, as many clients have never engaged in facilitated bargaining before.

2. People who are afraid are likely to act defensively, unpredictably, positionally and perhaps uncooperatively.

3. Our job is to create a safe place for them to have difficult conversations, so that they can overcome fear and the behaviours that it causes, and instead focus on powerful negotiation.

4. Our best tools for doing this? Genuine curiosity, non-judging observation and questioning, and a keen self-awareness of our own responses to conflict and personal biases.

5. Structure your process in a way that allows you to be curious, non-judging and aware. Have clients complete pre-process confidential intake forms for example, so you have some information from them, about them, before you meet them. Give them time at the pre-process stage, preferably in confidential one-on-one meetings, to tell you about themselves, their concerns, their needs, their fears.

6. Learn the skill of conflict analysis and use all the available tools to identify the sources of conflict. Use these tools to help the clients analyze their own conflicts too.

7. Help clients focus on creative feelings to generate a positive, forward-thinking and optimistic sense of future possibilities.

8. Understand the research on basic human emotional needs, and design your process to enable clients to have those needs met, and to empower them to meet these needs in the other.

9. Cultivate an atmosphere of respect. Encourage clients to understand that basic human respect can be the least expensive, and most effective, concession they can make in a negotiation.

10. Keep clients focused on making and responding to concrete proposals to avoid getting mired in blame and the past. “Who can do what today to move this matter forward?” is the question you want to ask them when they get stuck.

With these skills, you will find your clients better equipped for the bargaining process. Good luck!

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Outline of a Basic Family Mediation Process: Part 4 of 8 – Views & Preferences of the Child

150525 - View & Perspective of ChildThe law requires the (mediation) process to enable the views and preferences of the children to be heard and understood…

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As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators.

PART 4 – VIEWS & PREFERENCES OF THE CHILD 

In any mediation affecting children over the age of 4 or 5, and sometimes even children that young, the law requires the process to enable the views and preferences of the children to be heard and understood, to the appropriate extent given all the circumstances.

It is the mediator’s job to ensure that this requirement is discussed with the parties and that they agree on the appropriate steps to take. If they do not agree, outside assistance will be required, either in the form of a legal opinion, court assistance, or hiring legal representation for the children.

Your agreement to mediate should address the elements of any child interactions that might occur. Such terms should deal with:

  • The parties understanding that, under the United Nations Convention on the Rights of the Child, to which Canada is a signatory, children have the legal right to be provided with an opportunity to express their views about decisions that affect their well-being, consistent with their age, capacity and desire to participate.
  • The mediator may recommend that our children be interviewed as part of the mediation process to elicit the child’s/children’s views, experience and preferences as may be appropriate in their circumstances parent’s consent is required before such an interview may occur.
  • Should the parties consent, which may be done verbally or in writing, a mediator who is trained to interview children, or someone the mediator designates, will meet with the child/children on the following basis:
  1. The interviewer will first meet with each parent to explain the process in more detail and to agree on the time and place of the meeting/s;
  2. the interviewer will then meet with the child/children;
    the specific content of the meeting shall remain confidential between the child/children and the interviewer;
  3. the interviewer will meet with both parties and the mediator to share the overall impressions and concerns of the children;
  4. the information shared during this meeting will be used to help the parents reach informed decisions that will be in the best interests of their children;
  5. the interviewer and/or the mediator is required to disclose to a Children’s Aid Society any disclosures from the child/children that reasonably lead the interviewer/mediator in good faith to believe that a child is in need of protection, and to disclose to the police or other appropriate third party any information that reasonably leads the interviewer/mediator in good faith to believe that there is an actual or potential threat to human life or safety; and
  6. the interviewer is not a compellable witness in any legal proceeding unless so ordered by a court.

 

illustration by Frank Guerreiro
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Outline of a Basic Family Mediation Process: Part 3 of 8 – On-Going Screening

150512 - On-going screening (640x470)A case that appears appropriate for mediation can change at any time into a case that is inappropriate for mediation; it is your job to monitor signs…

___________________________

As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators.

PART 3 – ON-GOING SCREENING

On-going screening is not a separate stage of mediation, but rather a continuous observation that you will make from the time you decide to take the case until the time the process is terminated. A case that appears appropriate for mediation can change at any time into a case that is inappropriate for mediation; it is your job to monitor signs, body language, intuitions, behaviours, and confidential information that the parties may provide to you as the process progresses, and continuously assess negotiation power, safety and suitability of the process to continue.

Throughout any mediation, the mediator should be prepared to “safely terminate” the process. This requires a solid understanding of the steps to take (and not to take) when a previously safe or appropriate case becomes unsafe or inappropriate. Mediators need to know how to respond to threats, suicide risks, drug or alcohol abuse and child protection concerns. Familiarity with accessible safety planning resources is essential to competent family mediation practice.

illustration by Frank Guerreiro
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Outline of a Basic Family Mediation Process: Part 2 of 8 – Post-Decision & Pre-Mediation Preparation

150421 - Post-Decision (640x494)

If you decide to take a case, your next step is to learn what you need in order to design a mediation process that will meet each client’s procedural needs…

_________________________

As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators.

PART 2 – POST-DECISION & PRE-MEDIATION PREPARATION

If you decide to take a case, your next step is to learn what you need in order to design a mediation process that will meet each client’s procedural needs. This includes:

  • determining whether either party has any disabilities that need to be accommodated
  • discussing with each what process adaptations they need; from all-caucus to no-caucus; from including lawyers to excluding them; from short meetings to full-day meetings; from dealing with one issue at a time to addressing all issues at once; from allowing emotions to enter the room to agreeing on boundaries; from providing for separate arrivals and departures, including advocates and supports, hiring translators, including family members; your job at this stage is to canvass every procedural step you can take to design a process that will empower both parties to participate in a process that complies with your principles.
  • Assessing the amount of information and documentation that the parties have, and what each needs in order to participate fully, and determining the best way to obtain that information. Sometimes it will form part of the process; other times you will determine that the circumstances require the parties to obtain advice and exchange disclosure prior to starting the mediation.
  • Learning what existing orders or agreements impact the mediation and ensuring that you and the parties (and their lawyers) all understand and agree on the implications of such orders or agreements on the procedure in the mediation.
  • Assessing, with each client separately, how prepared they are to proceed. Refer to the prior pages on preparing for negotiation; all of these steps must be taken with each client.
  • Ensure that each client understands the Agreement to Mediate, and has had an opportunity to get advice on it and ask you any questions they may have.
illustration by Frank Guerreiro.
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Outline of a Basic Family Mediation Process: Part 1 of 8 – Before Deciding

150324 - Before Deciding (P1) - Outline of a Basic Family Mediation Process (640x553)

Before deciding whether to take the case, the client, conflict and case are analyzed to assess whether the case is suitable for mediation, and/or you are the most appropriate mediator…

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As with negotiation, the mediation process follows150324 - Before Deciding (P1) - Outline of a Basic Family Mediation Process a basic framework. The framework that a mediator uses will be determined by the principles that guide through.150324 - Before Deciding (P1) - Outline of a Basic Family Mediation Process

At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.

Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.

The following series are excerpts from one of our training manuals for new mediators:

PART 1 – BEFORE DECIDING

Before deciding whether to take the case, the client, conflict and case are analyzed to assess whether the case is suitable for mediation, and/or you are the most appropriate mediator. Lawyers, judges, other professionals and clients will all refer to mediation with you. It is your responsibility, and yours alone, to assess whether the case is an appropriate one for mediation, notwithstanding what anyone else thinks about the case. The factors to consider include:

  • Are the issues and problems within your sphere of competency?

  • Are you neutral? Are you capable of being truly impartial?

  • Are there any real or perceived conflicts of interest?

  • Do you feel that you can provide a process that is consistent with your guiding principles?

  • Are the parties ready to negotiate?

  • Is the power balance between them one that you can work with in a way that will do no harm?

  • Are the parties willing to comply with your requirements for financial and other disclosure?

  • Do the parties understand the limits on confidentiality and are they comfortable with that?

  • Is there an appropriate mechanism for including the child’s views and preferences?

  • Is mediation the best process for both parties?

  • Are both parties able to tell you what they need in order to participate in a process that complies with your guiding principles?

You will want to design your pre-mediation procedures in a way that will enable you to obtain the answers to these questions. Generally this will consist of a pre-mediation intake form, some telephone interviewing, and a confidential intake-screening meeting with each party (and their counsel if they wish) before deciding whether to take the case. Comfortable knowledge of screening tools, awareness of the predictors of high risk and ready familiarity with appropriate resources for referral, including safety planning, are all essential components of a competent pre-decision process.

illustration by Frank Guerreiro.
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