CONFIDENTIALITY
• Parties’ Expectations Depend on
Circumstances and Agreements
• Reasonable Expectations Shall Be Met
• All Confidences Shall Be Kept Unless Given
Permission or Required By Law
• Confidentiality Should Not Prohibit Data
Collection for Research Purposes
Key Sources
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Mediator Contract
California Evidence
Code Sections 1115-1126
Cases
Copyright Forrest S. Mosten, 2011
Areas Covered by Mediator’s Contract
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Confidentiality
Admissibility-Privilege
Roles of the Mediator
Ground Rules
Financial Arrangements Between
Mediator and Parties
Copyright Forrest S. Mosten, 2011
#24.
Case Assessment and
Management
ASSESS
 WHO NEEDS TO MOVE?
 SELECT INTERVENTION
Indicators That Mediation is
Appropriate
Adapted from form developed by John Wade
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Grieving Process is Ongoing or Complete
Attorneys Retained are Supportive of Mediation
There Are No Acts of Hiding Assets
Parties Agree to Accessibility to Documentation
No History of High Conflict or Litigation
Parties Have Ability to Understand Math, Budgets, Commercial
Realty and can Grasp Parenting and Financial Issues
Indicators That Mediation is
Appropriate (CONT’D)
Adapted from form developed by John Wade
 There is no History of Violence or Abuse
 Parties Have a History of Cooperation and Successful
Problem Solving
 Parties are Capable and Willing to Communicate
 There is Some External Pressure to Settle
 Parties Have Achieved Emotional Divorce
 Adequate Resources to Fund a Compromise
 Parties’ Desire for Settlement is High
Case Management
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Discovery
Court Hearing
Time Lines
Monitoring
Telephone Conference Calls
Neutral Experts
Bifurcation of Issues
#25.
Conflict of Interest
#26.
dr. murray bowen
can teach us
SMOOTHING OUT
THE BUMPS
EMOTIONAL ASPECTS OF
DISTRIBUTIVE ISSUES:
NORMALIZATION AND SOLVABILITY
NORMALIZATION AND SOLVABILITY
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Replay Of Relationship
Deep Seated Condition
Values Clash
Lack Of Reality
Fear
Uncertainty
Deprivation
UNDERLYING THEORY:
Increase Differentiation of Self
(Dr. Murray Bowen)
• Fusion creates emotional dysfunction
• Attempt to allow rational sense of self to overcome fierce reactive
emotions
• Move toward Balance—differentiate oneself from destructive
behavior
Bowen’s Systems Theory
• There is an automatic, almost hypnotic, repetitiveness to
negative interactions
• Emotion overwhelms rational thought
• The more intimate the relationship, the more reactive people
are
Communications Theory Conflict in Distressed Parties
• Negative sequences of communication - criticism
begets criticism
• Any type of interruption of negative sequence
promotes resolution & better feeling
COACHING
• Focus on how the parties can help themselves
• Help parties have supports outside of the hurtful
relationship
• Reduce level of emotional reaction--increase
rationality
APPLICATIONS FOR MEDIATION
• Parties have historical system, roles, negative sequence of
communication
• Important to disrupt negative sequence of communication
• Person in conflict overwhelmed by emotion, hypnotized by
system
• Break from system, strengthening of rational over emotional,
promotes new coping, more rational problem solving
SELF-SOOTHING
What Can You (Party ) Do for Yourself to Feel Better?
• Acknowledge pain of party or fear of underlying conduct
• Try to Get Commitment by Party to gain grip and continue in Mediation
process
• Ask Party what has worked in past and applies to Situation
• Party chooses self-soothing approach
• Support Self-Soothing
• Stop Negotiations until soothing occurs
MONITOR RECOVERY AND PREPARE
FOR RETURN TO SESSION
 Check- In With Party And Affirms
Party’s Readiness To Return
 Choreograph Return To Joint
Session
 Role Play And Coach What To Say
And How To Say It
SELF- CONFRONTATION:
What Can You Do To Take
Responsibility for Improving Readiness
to Negotiate?
SELF-CONFRONTATION
 Acknowledge progress from self-soothing
 Ask what party thinks he/she can do to move
negotiations along
 In addition to party’s thoughts, asks if Party is
ready for challenge that is even more difficult than
self-soothing
 Explain how self confrontation apology work and
how they benefit
 Coach
SELF-CONFRONTATION (2)
Inquire if Party can think of something
that he/she could have done better or
for which apology can be made
• Identify fact or incident for Party to self-confront
• Coach Party how to Self-Confront and Apologize
• Lower Expectations of Successful Reaction of Other
Party or Movement
RETURN TO JOINT SESSION
• Summarize and Stress Positive Work
By Both Parties And Preview Next
Steps
• Inquire Which Party Want To Go First
• Re- Discuss Ground Rules
RETURN TO JOINT SESSION
• Start With Each Party Request For Other
Party’s Understanding
And Pain
LATE STAGE
• Self-confrontation Or Apology Of Each Party
• Acknowledgment Of Other Party And Move
On With Other Issues
#27. balance sequential and single
session formats
MEDIATION FORMATS
• SINGLE SESSION
• SEQUENTIAL SESSIONS
28. #telephone intake model
MODELS OF INTAKE
 LONG INTAKE
 SHORT INTAKE
 USE OF
ASSISTANTS/CASEMANAGERS
 INTAKE WITH COUNSEL
STRATEGIES FOR
PHONE CALL
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Inquire—don’t Sell
Focus On Process
Use Agenda Reframing For Facts And Questions
Packet And Appointment Are Sole Goals
Rapport; Integrity; Confidence
CHOICE OF PROCESS
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How Can I Help?
Services I Offer
Send Packet Arrange Appt
Mediation—other Party Agree
Choice Of Role Before Other Party Contacts Me
Packet—next Steps
CLIENT PACKET
• WHAT IS INCLUDED?
• WHY IS IT IMPORTANT
• HOW IS IT USED
CONTENTS OF
MARKETING
• Brochures
describing PracticePACKET
and Mediation Process
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Mission Statement
Short Biography
Article(s) about you
Article(s) by you
Mediation Agreement
Directions to office and Parking information
Business Card
Material should be attractively arranged in a quality Bond Double-Pocket Folder with you
Practice Name Printed on Front. Color copies should be used, if available. All duplicates
should be made directly from originals.
#29. hot topics and trends
#30. Court House Field Trips And
Mythology
HAVE YOUR CLIENTS TAKE A
COURTHOUSE FIELDTRIP
MEMO FROM CLIENT
My second field trip, as you requested that I take, was a visit to the
family law court in downtown L.A. where our case would be heard
should we go to court. My court experience was eye opening on
many levels. First of all, it was definitely a “cattle call” as there was
over 18 cases to be heard that day. Second, the courtroom was
packed with “suits”, aka lawyers,
#31.
reframing
FACTS
INTERESTS
EMOTIONS
AGENDA ITEM
• LEGAL CONCEPTS
• PROPOSALS