Maximizing Mediation
with
James C. Melamed, J.D.
copyright 2005 - Oregon Mediation Center, Inc. - All rights reserved
Maximization in Dispute Resolution
A. What do we mean by "maximization?"
1. assisting participants to be at their individual best
2. assisting participants to most capably work together
3. assisting participants to obtain the greatest possible satisfaction of their interests.
B. If Maximization is to take place, it will be with Mediation: Compare: Adjudication, Negotiation and Mediation
C. Beyond Barely Sufficient Agreements to Most Capable Agreements
D. Maximization at Micro and Macro Levels
A Theory of Maximizing Mediation
A. Sample Maximizing Opportunities
- Location
- Number and Length of Meeting(s)
- Homework
- Caucus
- Internet
- Advisors
- Contemplation
B. Empowerment & Maximization Compared
C. Theoretic Options Regarding Power Disparity and Mediator Response:
- Operate under the illusion that the mediator does not influence participant power
- Attempt to balance participant power
- Seek to "comparably" empower (or disempower) participants or
- Embrace empowerment and carry it to the fullest extent of "maximization"
Creating a Context for Maximization
A. Accepting the Clients As They Are
B. Identifying Individual Client Needs
C. Parallel Processes - Tolerating Each Other's Process
Managing Professional Expectations
A. Overcoming the Medical Model
B. Reflecting Responsibility
C. Problem Solving Model - need for complimentary approaches: Mediator Guessing and Heat
D. A Part of Participants Intrinsically Wants to Maximize
Adjudicatory Assumptions and Being Heard
A. The Need to be Heard
B. Dispelling the Illusion of Being Able to Get Their Way
C. The Adjudicatory Conveyor Belt
Working with Dichotomous Thinking
A. Positionality, Demands and Battle Thinking
B. The Unacceptability of Losing
C. Meet Parties and Representatives Where They Are -- Don't Fight the River
D. Depositioning to Motivating Interests and Positive Intentions
E. Cumulating Motivations
F. Directional Movement and Use of A Gradient
G. Keeping Participants in the Room
Three Ways Mediators Work
A. The Interest-Based Option Generation (Problem-Solving) Approach
B. The Hypothesis Generation and Testing Approach and
C. The Doubt and Dissonance Approach
Interest-Based Option Generation Approach
A. Consent to Process
B. Sharing Perspectives
C. The Common Ground
D. Establish a Problem-Solving Agenda
E. Desired Information and Documentation
F. Clarify Desired Outcomes, Interests and Positive Intentions
G. Develop Options
H. Select from Options
I. Integration and Finalization
The Hypothesis Generation and Testing Approach
Mediation Facilitation as a Process of Successive Approximation
A. Strategic Summarization
B. Hypotheses Development
C. Hypotheses Testing
D. Revise Hypotheses
E. Test Revised Hypotheses
F. Confirmation and Integration
The Doubt and Dissonance Approach
Creating a Healthy Tension of the Mind
A. Mutualized Dissonance Techniques
B. Two Sets of Arrangements
C. The Exchange Environment
D. The Hypothetical Question
E. Fact-Finding Analogue
F. "It Always Amazes Me"
G. "If You Were to Reverse Representational Roles"
H. The Parade of Horribles
I. "The Eight Questions"
Assisting Participants to be at Their Best
A. Structuring the Mediation
B. The Fly By
C. Framing, Resistance and Homework
D. Future Pacing Success and Memorializing Progress
E. Be Flexible!
F. Be Outfocused and Look for Attraction and Resistance Responses
Rapport Development, Anchoring and Indirect Communication
A. Matching
B. Pacing
C. Leading
D. Physical Rapport as a Metaphor for Substantive Rapport
E. Language to Use to Match, Pace and Lead
F. Anchoring
- Conceptual Anchoring
- Establishing and Anchoring Resource States
G. Indirect Techniques
- Shift Participants from Battle Metaphor to a Journey Metaphor
- Utilize Analogies within Participant Maps of Reality
- Consider Utilizing Quotes or Speaking Through Another Voice to Introduce Suggestions
- Normative Statements are an Effective Way to Introduce Settlement Options in a Non-Threatening Way
- Maneuvering or Manipulation?
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