Mediation: The Basics

What is your mediation style?

Our mediation style is basically facilitative.  We believe that most people are capable of solving their own conflicts. Some can do this on their own, while others can benefit from the guidance of a trained mediator. Our role is to help our clients talk over difficult or complex issues and to help them find mutually satisfying and beneficial resolutions.

Because the dynamics among each group of people is unique, a “one size fits all” approach to mediating is not realistic. Our mediation style encourages flexibility in the pursuit of effective solutions.

Some goals, values, and techniques reflecting various mediation models that are incorporated into in our work include:

• helping parties understand and appreciate each other’s perspective (empathy) (Transformative Mediation);
• helping parties attain a sense of their own value and their own capacity to handle life’s problems productively (Transformative Mediation);
• intervening in the parties’ conversation to bring attention to opportunities for recognition and empowerment (Transformative Mediation);
• focusing the parties’ conversation on the present and future, rather than past, to ensure progress (Facilitative Mediation);
• helping parties identify their underlying needs and interests (Facilitative Mediation);
• helping parties create and consider options for resolving their conflict, focusing on their underlying needs and interests (Facilitative Mediation);
• suggesting options that others have used to address similar issues when parties are stuck (Directive Style);
• providing legal and financial information (Directive Style); and
• helping parties with conversation styles (Nonviolent Communication).

In addition, Transforming Conflict provides several types of mediation services that are specially designed to further address the parties’ unique needs. You arrive at an outcome that serves your needs.

What types of family conflicts are appropriate for mediation?

Mediation is effective for addressing just about any family conflict, in both traditional and non-traditional family settings, whether the disputes involve matters of law or are interpersonal (e.g., family business working out sibling rivalries).

But mediation is not right for everyone or for every situation. Parties should consider other forms of dispute resolution if any of the following conditions is present:

• There is a history of physical, sexual or psychological abuse AND it is continuing.
• One party is fearful for his/her safety.
• There is alcohol or drug abuse.
• One of the parties lacks the mental capacity to understand the economic and legal implications of his or her agreements.

NOTE: Transforming Conflict, LLC now offers a co-mediation model for high conflict personalities and high assets (High Conflict Co-Mediation) and a Collaborative Mediation model for clients who need a little extra support from their attorneys.

How does mediation differ from other dispute resolution processes?

Litigation

Litigation is an adversarial process in which private individuals or organizations, through their attorneys, present their opposing views to a ruling body (basically, judge or jury).  The process is much more formal than mediation.  The parties’ attorneys try to persuade the arbiter to decide for their client by presenting evidence and interpretations of relevant statutes, case law, public policy and the like that are most favorable to each of their client’s interests.  After considering the various legal arguments in light of the specific details of the conflict, the judge or jury renders a decision on each of the issues presented.  The judge is limited to remedies prescribed by law.  Often, the losing party will appeal the judgment to a higher court.  If there is no appeal, or if all avenues for appeal have been exhausted, the judgment is final and binding.

Arbitration

Arbitration, like litigation, is a formal process in which the parties present their dispute to a neutral third party, the arbitrator, for a ruling.  The arbitrator reviews documents and hears witness testimony before rendering a decision.  As in litigation, the parties may question each other’s witnesses.  Ordinarily, the arbitrator’s decision is binding and cannot be appealed.  A perceived advantage of arbitration over litigation is that the former is often faster and less costly than the latter.

Collaborative Law

Collaborative Law is a bit of a hybrid of legal representation and interest-based negotiation.  Although each party is represented by counsel, the attorneys, clients and allied professionals enter into an agreement (a.k.a., “Participation Agreement”) by which they commit to work collaboratively to reach a resolution that mutually satisfies the parties.  This working relationship is intended to be one of transparency.  The parties agree to disclose to each other all information that is pertinent to a fair resolution of the dispute.  Negotiations are confidential and private.  The parties also pledge to refrain from engaging the litigation process (e.g., by filing a motion or formal discovery request).  In the event that a party makes an adversarial move, the attorneys will automatically withdraw from further representation.

All families have disagreements!  How can I tell if we need mediation now?

There’s a Chinese proverb that says, “If we don’t change the direction we are going, we are likely to end up where we are heading.”

If you or other family members are feeling frustrated by a persistent problem or conflict, family mediation likely is a good solution.  Any one of the following conditions may indicate that you and your family need a bit of help becoming “unstuck”: 

• There are prolonged silences and family members are avoiding each other;
• You’re afraid to raise and discuss difficult issues, even when it’s absolutely necessary;
• It’s taking more time than anyone would reasonably expect to resolve the issue;
• Emotions are often high and intense;
• Parties lack motivation to reach a conclusion;
• Parties are presenting contradictory information;
• Increasing spending is seen as the only solution; or
• The same solution has been tried repeatedly without success.

The optimum time to mediate is as early as possible—before anger escalates, feelings are hurt, and relationships are damaged—but it also can be used to resolve a dispute even after attorneys have been retained and legal action initiated.

How can we prepare for mediation?

Prepare for the conversation. Parties using interest-based mediation need to understand the needs and interests of all stakeholders in order to arrive at a mutually satisfying agreement. This is quite different from the kind of mediation that most attorneys are accustomed to, where parties or their counsel prepare a statement of their positions and most persuasive legal arguments and make trade-offs and 50/50 compromises. To get the most out of interest-based mediation, spend some time considering the following questions and then write down your answers:

• What is the problem? How do I know that it is a problem?
• How is this situation affecting others?
• Am I willing to put aside my anger and deal with the issues in a rational manner?
• Am I willing to make some compromises and let go of some of my hopes, fears and disappointments?
• Am I willing to work towards our most constructive and fairest agreement?
• What is it like to be in his/her shoes?
• What is s/he trying to say to me? Am I really listening? Does s/he know that I am listening?
• What is his/her preferred outcome?  Do I understand his/her real needs?
• What outcome am I seeking?
• Why do I prefer this outcome? (e.g., safety, fairness, expense, financial security, efficiency, relationship preservation, closure)
• Are there any similarities between the outcomes each of us prefer?
• Am I seeing the whole picture—not just my own point of view?
• How can we look at this problem differently so that we can work on a solution to it together?
• What options might resolve our disagreements in a way that I genuinely believe will work for both of us?
• How can I improve on this solution for the two of us?
• Do I trust this person to keep this agreement? If not, what will I need to feel assured that the agreement will be kept?

Prepare to do the work. Facilitative mediation is based on the principle of self-determination in which the parties are responsible for determining their own destinies. Working with mediator, they decide which issues need to be addressed and how to resolve them. This process will involve homework assignments such as identifying, locating, copying and producing documents; obtaining appraisals of property; or consulting with legal or financial experts. If your mediator assigns homework or if you and the other party/parties agree to work in-between sessions, you will need to do this on a timely basis.

NOTE: In certain instances, however, such as at the beginning of a divorce when parties are particularly emotional, counseling may provide much needed emotional support while the parties are in mediation.