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Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved

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Presentation on theme: "Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved"— Presentation transcript:

1 Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved www.smartmediator.com jmelamed@mediate.com

2 Mediating Divorce Agreement2 Overview of Time Together n Day One – Course Overview/Introductions/Outcomes – Continuing Themes – Conflict Resolution Theory/Skills – ADR Processes/Skills n Day Two – Negotiation Theory/Skills – Overview and Structure of Mediation – The Introductory Session – Mediating Agreement on Parenting Issues – Psychological Experience of Divorce n Day Three – Mediating Agreement on Parenting Issues (cont.) – Being a Mediator – Mediation Strategies – Communication and Facilitation Skills n Day Four – Mediating Agreement on Property/Debts – Mediating Agreement on Support Issues – Abuse and Capacity Issues n Day Five – Financial Integration and Tax Issues – Drafting the Understanding – Ethics – Building a Practice

3 Mediating Divorce Agreement3 Introductions and Desired Outcomes About You and what you would like to get out of our time together?

4 Mediating Divorce Agreement4 Continuing Themes n A Fascinating Endeavor n The Basic Equation n Truth, Perspective and Parts n Adaptive and Relative Decision-Making n Baby Steps n Strategic Mediation n Less is More n The Goal(s) of Your Mediation Services - agreement or a best opportunity to agree? - fairness - reasonableness - best interest of child? - empowerment? - recognition? - other? n What to do when you don’t know what to do Outcome Questions, Evidence Questions, Summarize, Normalize Mutualize, Suggest New Perspectives n The Internet is changing everything

5 Mediating Divorce Agreement5 Keys to Agreement n perspective (assist to be heard) n beliefs and values (work within) n interests/positive intentions (find) position interests positive intention if negative or revenge To deal with position, negative or revenge, ask: what would be accomplished in the positive if you: 1. Got your position; 2. Successfully avoided your negative or 3. Got your revenge?

6 Mediating Divorce Agreement6 Facilitating the Sharing of Perspectives Early Notice n Anticipatory Time Framing n Presume Disagreement n Semi-Active Listening n Gentle Inquiry n Summarize Golden Nuggets n Feedback n Refine Summary n Confirm Heard n Acknowledgement of Other?

7 Mediating Divorce Agreement7 More Agreement Creation Concepts n Conflict as Evolution normalize n Interpersonal and Intrapersonal parts theory for dealing with confusion n “Resolution?” A convergence of means. Parties only need to agree on what, not why n From Battle to Journey organizing metaphor n Adjudicatory Model or Myth? myths of justice, finality, rationality and objectivity n Bargaining in Shadow of the Law perceptions of the law n Other Shadows

8 Mediating Divorce Agreement8 Types of Conflict By recognizing the type of conflict you are dealing with, you have an advantage in developing an effective mediation strategy n Relational Conflict past: express one time. real well future: what are your future relational interests n Data Conflict data conflicts have data solutions n Interest-Based Conflict what we can work with maximize satisfaction of interests presented as positions n Structural (External) Conflict comrades seeking structural solutions n Value Based Conflict will not be resolved by words, only new experiences

9 Mediating Divorce Agreement9 Ways of Managing Conflict n Denial/Withdrawal n Suppression/Smoothing Over n Power/Dominance n Simple Compromise n Integrative Collaboration (enlightened self interest) assumptions: n some common interests n benefits of sharing perspectives, interests, and intentions n we face complex challenges which are best addressed through our combined intelligence and creativity

10 Mediating Divorce Agreement10 ADR Concepts/Skills An infinite spectrum of processes Commonalities and benefits: – motivated preparation – a “hearing” – capable presentation of other side – a window of opportunity Negotiation Mediation Arbitration Experiencing the ADR Processes

11 Mediating Divorce Agreement11 ADR Processes n Adjudicatory – adjudication – arbitration – court-annexed arbitration – private tribunals n Consensual – ombudsperson – fact-finding – negotiaton – mediation – conciliation n Mixed – med-rec – med-arb – mini-trial – summary jury trial

12 Mediating Divorce Agreement12 Negotiation Concepts & Skills competitive/positional and integrative/problem-solving interest-based/collaborative n not personality, but content approaches n creating and claiming value n dispute/transactional negotiation competitive approach, assumptions, risks integrative approach, assumptions, risks principled negotiation separate people/problem insist on interests generate options decide by objective criteria what if they have more power? your BATNA inducing principled negotiation (matching, pacing leading) competitive/positional and integrative/problem-solving interest-based/collaborative n not personality, but content approaches n creating and claiming value n dispute/transactional negotiation competitive approach, assumptions, risks integrative approach, assumptions, risks principled negotiation separate people/problem insist on interests generate options decide by objective criteria what if they have more power? your BATNA inducing principled negotiation (matching, pacing leading)

13 Mediating Divorce Agreement13 Negotiation Power n What is it? – relative – changes – limited – real/apparent – exercise has benefits/costs – ability to punish/benefit – enhanced by ability/resources – increased by ability to endure uncertainty – a good negotiating relationship – perceived batna – only exists if accepted n Any duty to balance power? n Concepts of competence, empowerment and maximization

14 Mediating Divorce Agreement14 Being a Mediator n Science and Art n Develop Your Toolbox n Meet Parties Where At n Balance Structure and Responsiveness n Interdisciplinary n Impartiality, Neutrality, Balance n The “Right Way” n Roles of the Mediator n Benefits of Mediation

15 Mediating Divorce Agreement15 Mediation Cultures n Comparing Divorce and Civil Mediation – Agenda setting – Use of Caucus – Overall Structure – Attorneys? – Physical Setting – Offer Recommendations? – Ex Parte Contacts n The Decision to Caucus – the price you pay – strategic, not automatic – reasons to caucus – confidentiality understandings – homework n Subject Matter Expertise and Offering an Opinion

16 Mediating Divorce Agreement16 Getting Started n A Capable Description of the Mediation Process – Define Mediation: “Assisted Negotiation” – Describe Key Qualities n Voluntary n Collaborative n Controlled n Confidential n Informed n Impartial, Neutral, Bala