The ‘P’s of Mediation, Negotiation, Arbitration and Collaborative Law

“There are so many divorce options: litigation, mediation, negotiation, collaborative law. How do I decide which is best for me?”

Whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or kids, the same two factors will determine the best dispute resolution process for you: Preferences and Power.

Preferences
You must know what you want before you can choose a process. Is it the most money you can get? Is it fairness? Is it the outcome that most closely resembles what a judge would do? Is it the most amiable relationship for the sake of the children? It is a quick settlement so you can move on?

Is the process by which decisions get made as important to you as the decisions themselves? Or is the outcome what matters most?

Do you wish to work together to find the most creative options or are you anxious to get this over with? Are you willing to accommodate the other person’s needs, or do you need to get what you want? Are you able to sit and negotiate with the other person, or do you need to have someone do it for you?

Are you afraid of your partner, or does either of you have any significant concerns about the other’s ability to participate in a mediation or a collaborative process? Do you need to preserve the option of court to get a restraining order, or a preservation order, or an order for disclosure? Or do you have sufficient trust in the other person to be able to safely waive the protections of the court? Will you feel better knowing that neither of you will use the courts to gain negotiation leverage, or do you think you might need this leverage to get the other person to negotiate reasonably?

All of these factors will help you assess which process is most likely to lead to a successful outcome for you.

Power

Power comes from many places:

  • personalities (is either of you the kind of person who has to have their way?)
  • emotions (is either of you experiencing a lot of anger or guilt?)
  • negotiation approach (do you both approach negotiation the same way, or is one of you a hardball negotiator and the other an accommodator?)
  • history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
  • resources: who has the money and ability to withstand each procedural option best?

The most important source of power comes from the respective strengths of your alternatives to a negotiated agreement. By alternatives, we mean what you will do if you do not reach a settlement.

Will you need to go to court? Will you be content to do nothing? Can you afford to pursue your alternatives? What are your chances of getting what you want in another process, such as court? What are the other person’s chances?

All of these go into determining what your alternative is to a settlement and how strong it is.

Before you choose a dispute resolution process, make sure that you have considered all of your preferences, and all the various sources of negotiation power that each of you has. This should help you choose wisely.

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How Can I (and My Lawyer) Help Prepare for Mediation?

Often clients starting mediation do not realize that they are beginning a negotiation. Many have no experience in negotiation and have not properly prepared themselves for the process. A well prepared client will be more comfortable in mediation and will negotiate more confidently and effectively.

We strongly recommend that all mediation clients at least have a consultation with a lawyer before they come to mediation. We prefer that the lawyers attend mediation whenever possible as we find that often leads to the best process with the best results.

Whether your lawyer is attending the mediation with you or not, here are some basic negotiation planning tips:

  1. Clarify the issues in dispute: there are usually three kinds of issues that are discussed in mediation:
    1. process issues — like whether to mediate or have mediation-arbitration; whether the parties can be in the same room together; who needs to be at the mediation; how to retain third party experts such as appraisers, an actuary or accountant; how the voice of the child will be heard; the role of lawyers; necessary disclosure, etc.
    2. substantive issues — such as how will decisions about the children be made; the children’s schedule; immediate cash flow or payment issues; emergency decisions ; child or spousal support; what to do with the house, pensions, businesses, or other property; how to value assets and liabilities; and the equalization payment, and;
    3. personality or behaviour issues — such as how the parties are communicating with each other and the children; concerns about emotional abuse or physical violence; concerns about alcohol or drugs; the role of new partners; and so on.
  2. Define your “interests”: draw on your lawyer’s experience to understand the difference between what you want (your position) and why you want it (your interests). Most lawyers are well trained in negotiation theory or collaborative law, and understand how important it is for you to be clear about your own interests, and also the other person’s interests. This will help you bargain with a sense of purpose in the mediation, and will also help you try to find solutions that meet the other person’s needs too.
  3. Discuss your alternatives to a settlement and know your own limits: ask your lawyer to help you realistically analyze your options, so you can know what you will do if you don’t reach a deal. This knowledge will help you make reasoned decisions in mediation, rather than make emotional decisions under pressure. It is important for each person to know when no deal is better than a proposed deal.
  4. Analyse the other party: what are their interests? How will they approach the negotiation? What strategy might their lawyer take?
  5. Discuss what information the mediator needs to have in advance: Does either party have any religious, dietary or health-related needs that the mediator should know about? Are there unique cultural aspects of this mediation that the mediator needs to be educated about?
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Overview of Family Relations (3 of 3)

A mediator’s tool kit is made up of many things. How we ask questions, the language we use, and how we conceptualize our role as mediator are a big part of this…

Day Three of the Family Relations Course provides prospective family mediators and ADR professionals with an opportunity to explore various models of mediation, including Narrative, Transformative, and Therapeutic Family Mediation. Additional skills and strategies such as Motivational Interviewing are discussed to further expand on the prospective mediators’ toolkit.

Focusing on role play and class discussion, Day Three of the Family Relations course provides participants with the opportunity to reflect on the Family Relations Courses’ three days of training. Participants are provided time to try out new skills in a focused small group setting to enhance how they approach issues of Family Dynamics, Mental Health, and Client Narrative.

Day Three of the Family Relations course further explores special topics in mediation, including the importance of self-care. Self-reflective vs. Self-reflexive practice is also discussed. As a mediator or ADR professional these topics are instrumental in ensuring we provide the best process we can for our clients, and that as professionals we are focused, engaged, and present.

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J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

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Overview of Family Relations (Part 2 of 3)

Mental health and mental wellness can be primary factors in relational issues and conflict, and how it is expressed. Aspects of mental health also impact upon how parties engage and participate in mediation and other ADR processes…

The Family Relations course is designed to provide non-mental health ADR practitioners with additional training in understanding and working with these issues.

Day Two of the Family Relations explores the difference between mental health and mental wellness, and examines the complex and often highly personalized experience of mental health issues. This understanding allows practitioners to connect with clients on a more personal and respectful level, and can enhance both engagement and effectiveness within the mediation process.

Day Two continues to examine issues of suicide and grief, and begins to look at skills necessary to work with difficult emotions. Additional focus is given to understanding and unpacking client narratives, and appreciating how each divorce is unique and experienced differently. Challenging topics such as stepfamilies and the roles of new partners are explored in a narrative and family systems context, and prospective mediators are given the opportunity to develop active listening skills and identifying mental health related issues at intake and in mediation.

________________________

J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

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Overview of Family Relations (Part 1 of 3)

As mental health and family law professionals we know that every family we work with is unique. We also know that families are incredibly complex and dynamic systems…

How we understand and respond to a family’s uniqueness informs our mediations and other ADR processes at every stage – from intake to completion. Developing and expanding on our skills of analysis allows for richer conversations, deeper connection, and more tailored interventions.

The Family Relations Course is designed to provide non-mental health professionals with additional skills and knowledge to analyze and work with a family’s uniqueness, and to understand their complexities which may be contributing to their conflict.

Day one of the course examines how families are changing and evolving. We as professionals can benefit from increased awareness and sensitivity to what this means for our clients and how this meaning may impact their preferred outcomes. Day One also expands on the concepts of Family Dynamics and Family Systems Theory, and examines how a Family Systems approach to intake and mediation can yield necessary information which can enhance your process and expand ones’ understanding of the conflict. Topics such as attachment theory, child development, the impact of separation and divorce on children, and parenting styles are also explored.

________________________

J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

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UK Parenting Coordination (PC) Roadshows

It was back in 2016 that London England based Family Law in Partnership (FLiP) founder Gillian Bishop first joined us in Toronto for the Riverdale Mediation PC trainings. She and fellow FLiP colleague Felicity Shedden had recognized the benefits that PC can provide to high conflict separated co-parents, and held the belief that while PC was foreign to the UK, that if a PC model existed, then there would likely be a demand for the necessary service.

In the winter of 2017 Gillian and FliP launched FLiP faculty, the training wing of FLiP, to offer a range of trainings for family law professionals. The aim in part to enhance ones “softer” skills and to develop a more reflective practice. While each of the courses sound amazing, it is the launch of FLiPs 8-module PC training launching in October 2017 that has brought me “over the pond” for two weeks.

At present I have the pleasure of accompanying Gillian Bishop on a whistle-stop tour of England to talk to family law and other professionals about Parenting Coordination and to promote FLiP’s upcoming PC trainings. Gillian and I have found eager groups in Bristol, Birmingham and of course London. We are scheduled to present in Leeds and Manchester next and will no doubt find other eager and curious crowds.

The family law professionals are quick to identify that their high conflict clients need help. After each of the presentations there has been shared acknowledgement that children need buffering from on-going parental conflict, and that something must be done to keep co-parents from continuously returning to court. As I have provided examples of my own PC practice and how specific interventions are applied, our curious crowds have recognized the possibilities for their own clients and cases.

It is truly an exciting time as Parenting Coordination is coming to the UK. It will be interesting to watch the UK model of PC form to meet the needs of the UK population. Equally as interesting is having a front row seat as family law and other professionals craft a model that fits their practices, which while supported by AFCC practice guidelines, will be uniquely their own. Exciting times indeed, and one which this PC is privileged to be part of if even in a small way.

________________________

J. Norton (B&W) ®MCP (324x420)

Jared Norton is a Parenting Coordinator with Riverdale Mediation.  Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children.  Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.

Click here to read Jared’ complete bio and CV.

 

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