Optimizing Mediation: Complete List of Topics from ‘Mediating Divorce Agreement”

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Complete List of Topics from “Mediating Divorce Agreement“

“Mediating Divorce Agreement” is one of many recorded courses available at Mediate University (www.MediateUniversity.com). This 15 hour recorded course was initially a live 40-hour course.  As a measure of respect for your time, I got rid of almost 25 hours of bad jokes in the complete recorded version!  Lucky you!

To give the reader a more complete feel for what a comprehensive mediation training is like, and also to pay homage to one of my gurus, Dettmar Cramer (to be introduced later), I here offer my complete listing of topics that I cover in my 40-hour comprehensive divorce mediation training.  This is the checklist that I share with participants. 

This long-list of issues will surely be overkill for many readers (so feel very free to scroll, scan or skip), yet I also hope that this list gives readers an accurate sense of the depth of awareness, strategies and techniques that are available and may well be helpful to you as a mediator.

Day 1

COURSE INTRODUCTION AND OVERVIEW

• Course Overview
• The Introductory Mediation Session
• The Demeanor Issue
• Rapport with Participants
• Begin with Parenting
• The Calendar Metaphor
• Current Parenting Arrangements as Entry – Identify Things that are Working and Things that are Not Working
• Child Support – Guidelines Set Legal Context
• Being a Mediator
• Mediation Strategy
• Facilitated Problem-Solving
• Hypothesis Generation & Testing – aka “Mediator Guessing”
• To what extent are children included in divorce mediation?
• Ethos of Participant Self-Determination
• What is better for children, joint or sole custody?
• Doubt & Dissonance – aka “Heat”
• Mutualized Doubt & Dissonance
• Individualized Doubt & Dissonance
• The Caucus
• Process vs. Substantive Expertise
• The End Game
• “The String of Pearls
• 3 Strategic Approaches: Problem-Solving, Mediator Guessing and Heat
• Communication Skills and Strategies
• Property & Debt Division
• Child Support Guidelines – A Rebuttable Presumption
• Checking Support Guidelines by Custom Calculations
• Spousal Support – The Lightening Rod Issue
• Does the mediator have a duty to balance power?
• General order of issues: Parenting; Property; Child Support; Spousal Support
• Financial Integration – Icing the cake 
• Drafting Issues
• Mediation Ethics
• How to develop a successful mediation business

CONTINUING THEMES

• Mediation as a Fascinating Endeavor
• The Basic Equation
• Progress by Incremental “Baby Steps”
• The Decision to Divorce as an Anguishing Comparative Choice
• Conflict as a Gap Experience
• Truth as “Irrelevant” in Mediation
• Satisfy Perspectives by Ensuring that They are Capably Heard 
• Parts Theory
• Speak to the Part(s) of Participants with which You can Make Progress
• Speak in Aspirational Terms to Access Participant Resourcefulness
• Who Should Speak First?
• All Decision-Making in Mediation is Comparative & Adaptive
• Mediation as Best Opportunity to Reach Agreement
• What Does it Mean When People Choose to not Settle in Mediation?
• Participants Make the Best Choices They Perceive Available.
• Mediation as Comparative Decision-making
• Strategic Mediation
• Relational Discussion as Strategic Intervention
• Less is More
• Potential Conflict of Interest Between Mediator’s Goal of Agreement and Participant Best Interest
• Other Possible Goals for Mediation?
• Do We Have a Goal of Participant Empowerment?
• How Do We Reconcile Participant Empowerment with our Duty to be Impartial?
• Do We Have Relational Goals?
• Do We Have Goals of Elevating Participant’s Ability to Resolve Conflict in the Future?
• The Mediator Toolbox
• Organize Techniques by the Functions that They Serve
• What Do You Do When You Don’t Know What to Do
• Ask Outcome Questions
• Ask Evidence Questions
• Evidence Questions Elicit Participants’ Experiential Criteria for Yes
• Summarize – People Can Not Stand To Be Mis-Summarized
• Normalization – Three Part Normalization 
• Mutualization
• The Associative and Dis-Associative Frames
• Flexibility Can Be Achieved by “New Perspectives” (Disassociation)
• Created by Shifting Perspective in Terms of Person, Place and/or Time”
• The Internet Is Changing Everything for Divorce Mediation 

KEYS TO CONFLICT RESOLUTION – DE-POSITIONING

• De-Positioning is a Means of Creating Flexibility in Mediation
• All Behavior is Ultimately Positively Intended
• Start De-positioning with a word such as “Imagine”
• “If You Got Your Position, What Are All of the Things That Would be Taken Care Of?”
• Four Possible Responses to De-Positioning “Imagine”
• A Positive Interest is Something a Participant is Attracted To
• A Negative Interest is Something a Participant Would Like to Avoid
• Clarify and Specify Abstract Responses to the Concrete Experiential
• Working with Revenge Motives – Even Revenge is Ultimately Positively Intended
• Summarize Positive Interests and Intentions for Participant in Directional Terms and/or on a Gradient”
• Summarize Cumulative Positive Interests and Intentions for Both Participants
• Joint Challenge to Get Each as Much as Possible of What Each Wants”

DAY TWO

KEY CONFLICT RESOLUTION CONCEPTS (cont.)

• De-positioning
• Perspectives
• Assist Perspectives to be Heard, Really Well, One Time
• First Question for Each New Discussion is: “What is Your Perspective Regarding …”
• Until Participants Have Had the Experience of Being Heard, They are not
• Open to Any New or Other Possibility
• Work Within Participants’ Respective Beliefs and Values
• Beliefs and Values Will Change only when New Behavior is Inconsistent with Previously Held Beliefs or Values
• Participants Need to Agree on Who Will Do What (and When), not Why Those Things Will be Done

THE SHARING OF PERSPECTIVES

• Capably Sharing Perspectives
• Early Notice of Requested Sharing
• Offer Anticipatory Time Frame 

GETTING CURRENT

• “Getting Current” – A Past-Focused Perspective Sharing Frame
• In Perspective Sharing, Presume Disagreement
• “Semi-Active Listening” in Joint Session
• Ask Clarifying Questions to Ensure that Participant Experience Mediator that Mediator Capably Understands
• Mediator Prepares to Summarize Participant Sharing
• The Goal is to Give the Participant the Experience of Being Heard by Effective Summarization
• Discretionary Choice By Mediator Whether To Seek Acknowledgement from Other Participant
• The Mission is to Give Participants the Experience of Being Heard

PARTS THEORY

• Inter-personal and Intra-personal Conflict
• Confusion Indicates Lack of Integration of Parts
• Explore Individual Participant Confusion in Caucus
• Parts Theory
• Mediator As Ally of Participant’s Integrating Part
• Specifically Identify Parts or Voices – Converting to Positive Interests if Possible
• Segregate Identified Parts By Relative Important
• Come Up With Specific Proposals to Get You Your Most Important Parts
• Resolution: Who Will Do What When – A Convergence of the Means

BATTLE TO JOURNEY METAPHOR

• Converting Battle Metaphor to Journey Metaphor
• Tailor Journey Metaphors to Participants
• Base Metaphors in Participant Resource States

DISPUTE RESOLUTION MYTHOLOGY – BARGAINING IN THE SHADOW OF THE LAW

• The Shadow of the Law is a Matter of Perception and Perspective
• Non-Legal Shadows Just as Important and Effective as Legal Context

NEGOTIATION POWER

• What is Negotiation Power?
• Power is Relative Between Participants
• Power Changes Over Time
• Power is Limited
• Real and Apparent – Perceived and Believed Power is Operative
• Exercise of Power will have Both Benefits and Costs
• Power is Ability to Benefit or Punish the Other
• Power is Enhanced by Resources
• Power Enhanced By Participant’s Ability to Endure Uncertainty
• Power is Benefited by a Good Negotiating Relationship
• Power Depends on Other’s Perception of Your Options: BATNA: Best Alternative to a Negotiated Agreement MLATNA and WATNA
• Power Only Exists if Accepted
• Negotiation Power is No Single Thing
• Option 1: Equalize or Balance Negotiation Power
• Option 2: Mediator Does Not Impact Power
• Option 3: Comparable Treatment
• Option 4: Maximization
• Assist Individual to be at Their Best
• Assist Participants to Most Capably Work Together
• Assist Each Participant to Get as Much Substantive Satisfaction as Possible
• When in a Does the Mediator Make Competency Decisions?
• What is Decision-making Competency?

EXPERIENCING ADR: NEGOTIATON, MEDIATION & ARBITRATION

• The Unsuccessful Negotiation Experience
• The Concerned Observer Perspective
• The Participant’s Mediation Experience – A Mixed  Bag
• How Manage Conflict Between Participant and Mediator?
• The Mediator Experience – A Mixed Bag
• The Participant Arbitration/Adjudication Experience
• The Arbitrator/Adjudicator Experience

ALTERNATIVE DISPUTE RESOLUTION (ADR) OPTIONS

The ADR Options

• Adjudication – by the People
• Private Arbitration – by Agreement
• Court-Annexed Arbitration
• Private Tribunals
• Ombuds
• Fact-Finding
• Distributive and. Integrative Negotiation
• Mediation
• Conciliation
• Mixed Processes: Med-Rec and Med-Arb

DEFINING AND DESCRIBING YOUR MEDIATION PROCESS

• Use Written Descriptive Materials and Send in Advance to Participants
• Make a Short Mediation Opening Statement
• Key Qualities of Mediation – also Empowering Technique
• Mediation as a Voluntary Process
• Mediation Defined as “Assisted Negotiation”
• Mediation as a Collaborative Process
• Participants in Control – Nothing can be Imposed
• Mediation as a “Confidential” Process
• Possible Use of the Caucus
• Mediation as an Informed Process
• Mediation as an Impartial, Neutral, Balanced & Safe Process
• Description of the Mediation Process as a Rapport Development Opportunity

DAY THREE

TYPES OF CONFLICT

• Relational Conflict: Segregate Past from Future
• Past-Focused “Getting Current” Relational Sharing and Acknowledgement
• Future Relationship as a Problem-Solving Discussion
• Data Conflicts Have Data Solutions
• Interest-Based Conflict Addressed by Seeking Maximum Satisfaction of Interests
• Structural Conflicts call for Structural Responses
• Work Within the Context of Existing Beliefs & Values

WAYS OF RESOLVING CONFLICT

• Denial/ Withdrawal
• Suppression / Smoothing-over
• Power / Dominance
• Simple Positional Compromise
• Integrative Negotiation – All Things Are Possible
• The Integrative Question – Any Improvements You Could Both Support?

NEGOTIATION APPROACHES

• Competitive and Collaborative Negotiation Approaches

PRINCIPLED NEGOTIATION

• Separate the People from the Problem
• Insist on Interests
• Generate Multiple Options Before Deciding
• Decide by Objective Criteria
• The Importance of a Face-saving Rationale
• BATNA: Best Alternative to a Negotiated Agreement
• Elevating BATNA Elevates Negotiation Power
• The MLATNA & The WATNA
• Modeling Interest-Based Approaches

INITIAL CONTACTS

• An Immediate Caucus Session
• Rely on Descriptive Materials
• Options for Beginning the Mediation
• The Mediator’s Opening Statement

THE INTRODUCTORY MEDIATION CONSULTATION

PRESSING ISSUES

• An Interim Understanding
• Interim Understanding Not Precedential
• Interim Understanding Not Admissible
• Retroactive Adjustment

OVERALL PROBLEM-SOLVING MODEL

1. Process Definition
2. Capably Hear Each Side’s Perspective
3.  Consider the Common Ground
4.  Develop Problem-Solving Frames
5.  Obtain Desired Documentation & Information
6.  Develop a Problem-Solving Knowledge Base
7.  Identifying Acceptable Arrangements
8.  The Exchange Environment – Package Deals
9.  Integration and the Integrative Question

COMMON GROUND TECHNIQUES

• Common Interests
• Interdependence
• Easy Points of Agreement

MEDIATION STRATEGY

• Participant Centered Problem-Solving
• Mediator Centered Guessing
• Mediator Heat – Individualized and Mutualized
• Hypothesis Development & Testing

Day 4

BEING A MEDIATOR: THE MEDIATOR TOOL-CHEST

• Meet Participants Where They’re At
• Balance Business and Responsiveness
• Divorce Mediation is Interdisciplinary
• You can offer evaluation information through “other voices”
• Impartiality, Neutrality & Balance
• The Right Way is the Way That Works
• Be Out-focused and Notice Attraction & Resistance Responses
• Roles of the Mediator – Be Flexible
• Benefits of Mediation – A Soft Sell

COMPARING CIVIL & DIVORCE MEDIATION

CAUCUSING WITH PARTICIPANTS

• The Use of Mediator Substantive Expertise
• How Does the Mediator Respond to Participant Secrets?

DOUBT & DISSONANCE

• Individualized and Mutualized Doubt & Dissonance
• Two or More Acceptable Arrangements
• The Exchange Environment
• The Hypothetical Question
• Fact-Finding – Non-Binding Outside Substantive Expertise
• Golden Rule: If You Were In the Other’s Shoes
• The Parade of Horribles (that might happen)
• The Eight Questions

EMOTIONAL – RELATIONAL MANAGEMENT OPTIONS

• Teflon Mediating: Ignore Unhelpful Information
• The Relevancy Check
• Ground Rules as Behavioral Norms
• Summarization
• Normalization
• Mutualization
• Acknowledgement – such as “Getting Current”
• Referral

PRACTICING PROBLEM SOLVING

COMMUNICATION SKILLS

• Question Forms
• Outcome and Evidence Questioning
• Cumulating Desired Outcomes
• The Conditional Close
• The Reference Point

RAPPORT DEVELOPMENT

• Matching, Pacing and Leading
• Cross-Matching Content and Physical
• Physical and Substantive Matching, Pacing & Leading
• Rapport “Bonding” Language”
• Work Within Existing Beliefs & Values
• Metaphors and Analogies: Convert Battle to Journey
• Quotes and Speaking Through Another Voice
• Normative Stories Introduce Options Safely
• Manipulation or Maneuvering? 

DAY 5

MEDIATING CHILD SUPPORT

• Guideline and Custom Calculations
• Almost all is a matter of Perspective
• Identifying the Child Support “Space”
• The Shelf of Differences

CHILD SUPPORT GUIDELINES

• Child Support Guideline Calculations and Spousal Support may be Interdependent
• The Duration of Child Support
• Child Support also Interdependent with Parenting Arrangements
• Documenting Child Support Guideline Consideration
• Child Support Without Tax Consequences
• Dependency Exemptions for Children
• Parties Can Freely Contract Who Gets Dependency Exemptions
• Dependency Exemptions Can Be Conditioned
• Head of Household Tax Filing Status

CUSTOM CALCULATION OF CHILD SUPPORT

• Presenting and Refining Budgets
• Custom Calculation of Child Support from One Party’s Perspective

MEDIATING SPOUSAL SUPPORT ISSUES

• Spousal Support as Lightening Rod Issue
• Spousal Support is Generally Modifiable
• Life Insurance Generally Backs Up Spousal Support Obligation
• Each Party Entitled to a Style Not Overly Disproportionate
• Both Amount and Duration Issues
• Comparable Suffering Standard
• What are the Goals and Purposes of Support?
• Many Tax Issues Associated with Spousal Support
• Make Assumptions Explicit
• Make Triggers and Non-Triggers Explicit
• Excess Support
• Custom Calculation of Spousal Support
• Parties Will Commonly Comparably Share a Shortfall
• Calculate Recipient’s Adjusted Entitlement
• Consider Adding Tax Liability
• Consider Sharing Tax Savings
• Charting Spousal Support
• Changes in Amount are Based on Some Assumption(s)
• The Area of Overlap is an Area of Agreement
• Quantify Disagreements
• Consider Converting Disputed Support to a Property Issue
• Mediating Temporary Spousal Support

PROPERTY & DEBT DIVISION

Community and Equity States

1.  Disclose the Property
2.  Characterize the Property
3.  Determine Values
4. Determine any Reimbursements
5.  Determine Allocations

• Quantitative and Qualitative Considerations
• When Do We Value?
• Personal Property Division
• Inventory and List Property
• Participants Initially Value and Indicate Preferences
• Consider Resolving Mutually Desired Items by Auction
• List Important Property Items in the Agreement
• The Marital Home
• Qualified Retirement Assets
• Balancing Property & Debt Division
• Charting Property & Debt Division

SUMMARY OF TAX ISSUES

DRAFTING THE UNDERSTANDING

ETHICS SUMMARY

DEVELOPING A SUCCESSFUL MEDIATION PRACTICE

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