© Kathryn Marshall, Esq. 2014 www.WestsideMediator.com

Presented at SCMA 26th Annual Fall Conference, 2014 Pepperdine University · Malibu, California

Charting the Path Out of the Forest

Goal setting unites the parties by creating a mutually agreed upon purpose.

Goal setting is an important tool for parties in conflict to develop creative and cooperative solutions.

Goal setting preserves civility and encourages a balance of powers for the participants.

Goal oriented decision making allows the Mediator to offer a formal structure to address both the emotional expressions and factual discussions of dispute resolution.

An alignment with a goal oriented structure provided by the Mediator enhances the participants’ autonomy rather than inhibiting it.

The parties are empowered to create customized and confidential solutions tailored to their specific needs and interests.

In Mediation, the parties control the

outcome.

In Mediation, the Mediator must control the process.

The Mediator must also be prepared with a wide variety of intervention strategies.

"We are continually faced with a series of brilliant opportunities disguised as insoluble problems." John Gardner

To empower the participants to view their conflict as a positive problem-solving exercise focused on the future, not the past.

Decision making in close relationships like husband/wife, often takes place in patterns that are far removed from normal rational information-based models.

Decisions can be hampered significantly by personal biases created from past experiences which stifle each party’s ability to explore mutually beneficial goals.

Take a moment and see if you can read

the following paragraph: It dseno't mtaetr in waht oerdr the ltteres

in a wrod are, the olny tihng taht is iproamtnt is taht the frsit and lsat lttrees are in the rghit pclae.

Even though we rationally know the words make no sense, our minds insist on creating legible words and read the word as a whole.

This is the way our brains instinctively process

missing information by relying solely on our prior experiences.

Life requires us to rely heavily on our instincts in making decisions, particularly when confronted with new information or unfamiliar and stressful situations.

People’s perceptions are viewed through glasses colored by their prior experiences. This is why couples describing the same shared event often report it so differently.

Fortunately, we are not limited by what we already know or life would be pretty dull.

We also possess the unique ability to rationalize and

problem solve by accepting and considering new information that may be contrary to what we have experienced.

We are able to integrate the new information into effective problem solving. This is called creativity.

The creative side of problem solving is called brainstorming. When people can propose solutions without fear of judgment, they are free to consider all ideas, even prior ideas with modifications that can become an integral part of the final mutual agreement. The Mediator should assure the parties that no idea will be taken off the table until all proposals are on the table.

It is important for the Mediator to give permission

to the parties to view their conflict as an opportunity for growth and not evidence of failure.

Acknowledge there is a natural tendency to assign blame.

Remind them that California is a no fault state and through goal setting they will be able to focus as a team and decide their future together.

Together we determine the issues for goal setting through the parties’

Wants Needs

Expectations

When parties write down their wants, needs and expectations, they no longer have to hold onto their beliefs subjectively.

Through the act of writing, they have fixed their beliefs in place and time where they may be considered objectively without fear of loss of validation.

Parties who write their beliefs become more amenable to exploring new ideas and are less threatened when considering the other party’s beliefs.

Wants forms the beginning of goal setting.

Wants can include concerns and reveal both a

party’s positions and their interests. Without first understanding what each party

wants it is difficult for the parties to agree upon goals, making it very easy for the mediation to get off track.

Needs are what the parties require to get to

the Wants.

Needs are rational requirements and can be Information Monetary support Emotional support Cooperation

Needs are ultimately defined by Resources

Expectations may reveal each parties’ vision of what a workable solution or relationship may look like in the long term and allow the parties to identify shared goals.

Expectations may also reveal the parties’ biases and stumbling blocks that create obstacles to agreement.

Identifying each parties’ Expectations opens the

dialog to understanding the other party’s perception of the issues and allows the participants to address specific fears and identify common points.

Together, this information becomes the

building blocks towards mutual goal identification and provides the framework of successful settlement structuring.

An essential component of goal setting is the validation of the other party’s beliefs and is best accomplished within a set structure assuring the parties of the Mediator‘s neutrality.

Sequencing provides order. Sequencing is structured, but flexible.

Sequencing helps parties and the Mediator keep

track of progress and success. Sequencing can guide the parties to look at the

global whole; or attempt the biggest issues first; or break the conflict down into small manageable bites and build toward the larger issues.

Goals can be more clearly defined for sequencing when parties rank their issues in order of importance such as:

▪ 1. Support ▪2. Living arrangements ▪ 3. Children ▪4. Civility

General Agreement

Incremental

Boulder in the Road

This approach involves reaching a general agreement early in the process with the intention of working out the details at a later stage.

This general agreement is purposely vague in order to keep the parties at the table, set a positive tone for the rest of the process, and build momentum.

Pros It is general enough that the parties are likely to reach an initial

agreement without having to commit to concrete provisions from the start.

It generally sets a positive tone of working together and shows the parties they can cooperate.

Cons It often gets stuck in the general agreement stage because the

devil is in the details. It is vague and open to interpretation, so parties may think they

have agreed when they really have not, or they run into interpretation problems.

It may raise hopes prematurely that an agreement will be easier than previously thought.

Incremental negotiating moves the parties step by step to the larger issues.

This strategy is particularly useful when trust between the parties is low.

When the simpler issues are addressed first, it allows the parties to become more confident the process is working and become more willing to approach larger issues.

Pros It is the most logical and the most practical of all the sequencing

strategies. It may impart a sense of ease among the disputing parties. It allows the mediator and the parties to gauge progress at different

intervals. Finding agreement on smaller issues may provide an affirmation the

process is working. It is flexible.

Cons The more powerful party can attempt to control the process more

easily. It requires patience to deal with the minutia. Parties can avoid addressing the more difficult issues and postpone

them indefinitely. Parties may attempt to revisit prior agreed upon terms if not locked into

the whole settlement.

The “Boulder in the Road" approach is the opposite of the Incremental Approach.

It attempts to address the more complex and hardest issues first, thereby moving the "boulder" or greatest obstacle, which can enable an easier resolution of the remaining issues.

Pros It is a high-reward strategy. It challenges the intentions of the parties from the outset. It prevents parties from manipulation of small agreements. It attempts to bind the parties to the resolution process.

Cons It is a high-risk strategy. A failed outcome may cause a renewed loss of trust and

increased resolve of the parties to stick with their initial positions and chose to litigate.

Many parties often see little point in continuing or trying any other approach if they believe there is no agreement on the most difficult issues.

The Mediator has additional tactical tools they may utilize with any of the sequential strategies. While some tactics are commonly employed when a certain strategy is used, they are not limited to a particular strategy

Fractionalizing Linking Slicing

When an issue has distinct parts and values

that can be negotiated separately, the Mediator can divide those up into more manageable components which further engage the parties to attempt more creative problem-solving.

Linking: The process of joining one or more

issues with another for the purposes of settling those issues.

Certain issues can be used to build upon the other to reach a more coherent agreement for the whole.

The process of taking the whole conflict or a single issue in the conflict, and slicing off small pieces until one has dealt with the entire problem.

The easier elements of a specific problem are usually dealt with first which helps the parties stayed vested in their small successes.

However the mediation is structured, the

ultimate solution lies within the parties themselves.

The Mediator provides the necessary road map for successful problem solving utilizing the parties’ mutual goals, their available resources and most importantly their own imaginations to reach the path to agreement.

Peder Kjøs, Odd Arne Tjersland & Katrina Roen (2014) “The Mediation Window: Regulation of Argumentation and Affect in Custody Mediation,” Journal of Divorce &

Remarriage, 55:7,527-538, DOI: 10.1080/10502556.2014.950901 Michael J. Mauboussin, Think Twice: Harnessing the Power of Counterintuition, (Boston: HBS

Press, 2009)

Bernard Mayer ,The Dynamics of Conflict Resolution: A Practitioner's Guide, (San Francisco: Jossey-Bass, 2000)

Lauren M. Papp, E. Mark Cummings, Marcie C. Goeke-Morey (2009) “For Richer, for Poorer: Money as a Topic of Marital Conflict in the Home.” National Institute of Health, Fam Relat. 2009 February ; 58(1): 91–103. doi:10.1111/j.1741-3729.2008.00537.x.

Joshua N. Weiss and Sarah Rosenberg. (2003) "Sequencing Strategies and Tactics." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003. Used with written permission.

©Kathryn Marshall 2014. All photographs and illustrations ©Shutterstock 2014.