1. Advanced Mediation Skills: Generating Capable and Durable Agreements Presentation Outline James C. Melamed, J.D. © 2002 The Mediation Center, Inc. All Rights Reserved www.internetmediator.com jmelamed@mediate.com

2. Advanced Mediation Skills2 Ongoing Themes n Durability from a Capable Effort, Satisfying Agreements, Rationale and an Effective Working Relationship. n An Integrative Environment n The Shadow of the Law / Other Shadows n Incremental Progress – Creating an Upward Spiral n Strategic Mediation n Less is More n The Goal(s) of Mediation? - agreement or a best opportunity to agree? - fairness & reasonableness? - empowerment / maximization? - relational? - future conflict resolution capacity? 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

3. Advanced Mediation Skills3 Rapport Development n Matching (mirroring) n Pacing (inquiring) n Leading (departing) n Physical and Substantive n Managing Resistance n Language “Bonding Phrases” to introduce new ideas: – appreciating that... – understanding that... – acknowledging that... – accepting that... – accepting, if only for the moment, that... – respecting your perspective that... – assuming... presuming... Departure Language “leaves an out” – I wonder... I’m curious whether... – A part of me wonders... – I wonder whether a part of you...

4. Advanced Mediation Skills4 More Language Ideas Directional and Gradient Terms – It seems that we are moving in the right direction to the extent that... – The more, the better? – To the extent that we ___, you are pleased? – Something in the direction of... – the closer the better? Speak to Parts: – I get it that 99% of you does not want to be here, but that other 1%, what does that part think might be a way that we could make progress... – That part of you that would like to get this thing resolved, what does that part think is... Language to Avoid: – I think... – You should... – but... – however... – except

5. Advanced Mediation Skills5 Indirect Techniques n Metaphor (Journey) n Resource States n Anchoring n Quotes (speaking through another voice) n Normative Stories allow options to be considered n Manipulation?

6. Advanced Mediation Skills6 Framing Discussions with Questions n The Ideal Mediator n Questions Create Frames n Mediator as Frame Master n Question Forms opening information gathering clarifying/specifying justifying hypothetical leading stimulating participation focusing alternate-choice closure (focus) n Outcome Questioning n Evidence Questioning n Cumulating Outcomes n The Conditional Close n The Reference Point timetime

7. Advanced Mediation Skills7 Keys to Agreement n perspective (assist to be heard) n beliefs and values (work within) n interests/positive intentions (distill from positions – the magic word “Imagine”) position interests positive intention if negative or revenge To deal with position, negative or revenge, ask: what would be accomplished if you: 1. Got your position; 2. Successfully Avoided, or 3. Got your revenge?

8. Advanced Mediation Skills8 Facilitating the Sharing of Perspectives Early Notice n Anticipatory Time Frame n Presumption of Disagreement n Semi-Active Listening n Summarize Golden Nuggets n Feedback n Refine Summary n Confirm Heard n Acknowledgement by Other

9. Advanced Mediation Skills9 Problem-Solving Facilitative Structure n Consent to Process the process is always negotiable n Sharing Perspectives n Remember the Common Ground n Problem-Solving Agenda (statement of mutualized problem to be most capably solved) “How can we best...” or “What is the best way for us to...” n Desired Information/Documentation On each problem to be solved: n Interests and Positive Intentions n Options n Selections n Integration Problem Solving Statement: How can we best...? Interests, Intentions, Goals Possible Solutions

10. Advanced Mediation Skills10 Negotiation Power and Maximization 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 Balance power? n “Maximization” – Personal capacity – Problem solving ability – satisfaction of interests Party AParty B Mediator complete support Minimum competency improvement

11. Advanced Mediation Skills11 Mediative Strategy Mediators use different strategies at different times, including the following approaches. n Interest-Based Option Development (problem-solving) n Hypothesis Generation and Testing (mediator guessing) n Doubt and Dissonance (heat) Interest-based problem-solving Mediator guessing Heat GOALGOAL Rapport building Information gathering Interests and options Harvest easy agreements Package Deals Base on outcomes, interests and principles Importance of Rationale Base on rapport Mutual and individual

12. Advanced Mediation Skills12 Interest-Based Problem-Solving n Interests and Positive Intentions n Options n Selections – cumulative arrangements – parts – easy agreements – exchanges – priorities n Integration

13. Advanced Mediation Skills13 Hypothesis Generation and Testing Agreement by Successive Approximation n Strategic Summarization n Hypothesis Development n Hypothesis Testing n Adjust Hypothesis n Test Adjusted Hypothesis n Confirm Agreement n Integration

14. Advanced Mediation Skills14 Doubt and Dissonance Creating a “healthy tension of the mind” n why create dissonance? n options n base upon rapport n assume people will make the best choice they perceive available n individualized or mutualized? n examples: – two sets of arrangements – exchange environment – hypothetical question – fact-finding – if you were in our shoes – the parade of horribles – the eight questions

15. Advanced Mediation Skills15 Emotional/Relational Management Options n teflon n relevancy check n ground rules n summarization n normalization n mutualization n acknowledgement n referral little content attention more content attention

16. Advanced Mediation Skills16 Theoretic Model n Desired Outcomes n Interests n Positive Intentions Give Direction to Agreement n Attraction to Agreement n De-positioning n New Perspectives n Doubt and Dissonance Create Flexibility and Willingness to Move to Agreement n Principles, Standards & Criteria n Rationales n Rationalizations Provide an Explanation (Rationale) that Makes Agreeing Safe and Adaptive