Maximizing Mediation. An Experienced Mediator s Favorite Techniques. James C. Melamed, J.D. CEO Mediate.com
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1 Maximizing Mediation An Experienced Mediator s Favorite Techniques James C. Melamed, J.D. CEO Mediate.com Maximizing Mediation - Favorite Techniques 2
2 What Mean By Maximization? Ø assisting participants to be at their individual best Ø assisting participants to most capably work together Ø assisting participants to obtain the greatest possible satisfaction of their interests. Maximizing Mediation - Favorite Techniques 3
3 Maximization More Broadly Ø Mediation as best opportunity for maximized problem solving. Compare: Adjudication, Arbitration, Unassisted Negotiation Ø Moving beyond barely sufficient processes and barely sufficient agreements to most capable processes and most capable agreements Ø Maximization has both micro and macro levels Maximizing Mediation - Favorite Techniques 4
4 Justification for Maximizing Mediation Imperfect Theoretic Options Regarding Power Disparity & Mediator Response Ø Operate under the illusion that the mediator does not influence participant power Ø Attempt to balance participant power Ø Seek to "comparably" empower (or disempower) participants Ø Embrace empowerment and carry it to the fullest extent of "maximization" Maximizing Mediation - Favorite Techniques 5
5 Framing and Questions Ø Mediator as Frame Master Ø Create Frames with Questions Ø The Ideal Mediator Ø The two most important questions: Outcome Questions and Evidence Questions Ø The Conditional Close Ø The Reference Point Maximizing Mediation - Favorite Techniques 6
6 Three Basic Strategic Ways Mediators Work to Create Agreement Ø The Interest-Based Option Generation Approach (problemsolving) Ø The Hypothesis Generation & Testing Approach (guessing) and Ø The Doubt and Dissonance Approach (heat) Key determinant is available time Maximizing Mediation - Favorite Techniques 7
7 Interest Based, Option Development Problem Solving Introductory Session: Process, Info/Doc, Questions, Rapport Dev., Future Pace Success First Session: Ø Review Info Doc Ø Getting Current Past / Present / Future Ø Easy Points of Agreement Ø Problem Solving Agenda Ø Interests & Outcomes Ø Options Ø Exchanges of Arrangements - Homework Ø Shelf of Differences Package Deals Ø Reference Point Process Ø The Integrative Question Maximizing Mediation - Favorite Techniques 8
8 Hypothesis Generation & Testing Ø I wonder...? Ø I m curious...? Ø Might it be...? Ø Would I be wrong to think...? Ø Perhaps something in the direction of..? Ø Maybe something along the lines of..? Ø Perhaps an exchange here of for or the like..? Ø Correct me if I am wrong, but might I be hearing...? Reference Point Process is Mediator Guessing as End Game Maximizing Mediation - Favorite Techniques 9
9 Doubt & Dissonance (aka Heat ) D & D or Heat is based on the concept that participants will always make the best choice they perceive available. We elegantly challenge their current assessment. Ø The mediator either challenges the positive or negative evaluation of an option; or Ø The mediator challenges a perceived comparison of options. Maximizing Mediation - Favorite Techniques 10
10 Favorite Techniques I Ø Rapport Development: Meet people where they are Matching, Pacing, Leading Ø Identifying Resource States, Anchors, and Metaphoric data-base Ø Getting Current & Framing Time: Providing time and a frame to be heard Distinguishing Past, Present and Future Frames Ø The Impact of Location The Yurt Story Maximizing Mediation - Favorite Techniques 11
11 My Favorite Techniques II Ø Managing behavioral expectations with ground rules & the relevancy check Ø Identifying easy points of agreement Ø De-positioning to motivating interests & positive intentions with the word Imagine Ø Normalization & Mutualization Ø Problem-Solving Questions: How can we best..? What is the best way for us to..? Maximizing Mediation - Favorite Techniques 12
12 My Favorite Techniques III Ø Normative stories (similar situated others) Ø New Perspectives (dis-associative techniques) e.g. Zen Fly ; If you were the other; If you were the mediator; Looking back from the future; If you were your children.. Ø Homework exchanges and package deals ( shelf of differences ) Ø The Reference Point Process Ø The Integrative Question end Maximizing Mediation - Favorite Techniques 13
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