In dispute resolution, a mediator can serve to separate the people from the problems, to prevent personal attacks, suggest some objective standard and help to draft the final agreement based on discussions. This text is called the One-text Procedure. Even if the parties are still far from agreement or refuse to speak, the mediator can “caucus” between the parties, showing each the agreement and inviting revisions. The mediator is an unbiased third party who is more interested in agreement than in specific issues involved.
Throughout mediations, the mediator must show respect for each individual, expressing appreciation for any efforts to negotiate or propose settlement suggestions. Giving praise and support encourages the party to act in a manner to continue to deserve them. Good listening skills again come into play, wherein the mediator paraphrases statements, asking if the understanding is correct. When understood, an individual is usually willing to listen and be receptive. You might say something like “let me explain one problem I have with your solution…”.
Encourage the parties to concentrate on fairness. This will give them a basis for agreement on one point. Additionally, explain that the case should be decided on “independent standards”, not on one individual's power or will. In this manner, an imbalance of power can be set aside in mediations. Such an imbalance should be openly discussed.
Before giving a proposed solution to the problem, always give all your reasons first, detailing the rationale behind your suggested solution. In this manner, the opposition doesn’t view the proposal as arbitrary, but based on objective standards. You might begin by saying “one fair solution may be…”. In this manner, you haven’t set it up as this solution or nothing.
Be willing to delay a decision to another session, saying something like “now that I understand your point of view, let me get back to you”. Good mediations are not made quickly or on the spot. It is sometimes more advantageous to postpone the final agreement to the next meeting. If mediations have been going for hours, it may allow for a weakened agreement that goes against the principles.
Striving for Fairness:
When one side is resorting to unfair practices, you first must recognize the tactic and bring it out in the open. For instance, some ploy to lock the other side into a position can derail mediations. Pointing out to them that this will delay or otherwise impede mediations may be sufficient to get them into principled mediations. Confront the tactic, not the person. It is easier to change the negotiating process than the person employing the tactic.
When it is necessary to confront an individual about unfair statements, try to focus on the underlying interest. Ask questions as to their motives. Ask whether they wish for both sides to use this tactic. Treat the tactic as a proposed method for continuing to negotiate. You may have to delay mediations to another day, stating something like “we will meet another day when we can negotiate in a manner to produce results”.
If the other party claims to be unable to reach an agreement due to needing to consult with another party, use this as an opportunity to tell them that you will assume that the agreement in hand is just a draft subject to revision on both parts. In this manner, you are not committed to solutions drafted.
Full disclosure is not necessary in all instances, although this doesn’t include divulging all financial matters involved in a divorce. Sometimes, you should be careful what you divulge during mediations that may give power to the other side.
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