Tips for Effective Mediation

April 26, 2013

Suggestions for Effective Collaborative Negotiations: The Help List

Robert Bordett, CFP, CDFA  |    Suggestions for Effective Collaborative Negotiations: The Help ListI was reading an excellent book called Collaborative Divorce, written by Pauline Tesler and Peggy Thompson, which gave me pause to consider what people should really think about when they come in for Collaborative Divorce.  I’ve known Pauline and Peggy since they trained me in Collaborative Divorce back in 1999 and their impact on me has been immeasurable.

Another great resource is something called “The Help List”, a twelve point guide to more productive negotiations that I reprint here with gratitude to the people who developed it:

Suggestions for Effective Collaborative Negotiations – “The Help List” – developed by Steven Neustadter and Catherine Conner; adapted with permission from Process Anchors by Chip Rose.

During All Meetings with Your Partner and with the Collaborative

1  )  View your “ex” as a negotiation problem-solving partner. Although the two
of you are separating it is helpful to consider that person as someone who can
actively and constructively participate in resolving the issues created by your
separation. For that reason that person is referred to as your “partner” in this
list of suggestions.

2 )  Be constructive. Only do or say those things which will be effective. Being
effective and constructive means always remaining focused on achieving goals
that are consistent with your interests and principles and always acting in
ways that you believe could lead to a solution.

3 )  Take responsibility for your feelings and do not allow your feelings to
dictate your actions. When you feel that you have been wronged, it is hard not
to dwell on the wrongdoing that you feel has been inflicted upon you and hard
not to remain focused on blaming your partner and hard not to expect the
worst. When you allow yourself to be governed by such feelings you are
dwelling in the past and limiting your ability to move forward. Look at what
has happened — including your own part in it — and set whatever boundaries
and limits you may need to protect yourself in the future. Then focus your
attention on what will help you in the future.

4 )  Avoid using inflammatory language and gestures. Critical speech, blame,
the use of sarcastic inflections and accusatory looks, can all cause a spiral of
unproductive conversation. Notice if you are angry, fearful, hurt, or in pain
and if need be, remove yourself from the immediate situation until you feel
more able to participate constructively. When you catch yourself reacting in a
potentially inflammatory way, or someone else points out your reaction, use
that awareness as a tool to understand yourself and your needs.

5 )  Speak for yourself, not for your partner. When speaking about your
partner, try not to describe his/her feelings or motivations. Focus on your own
feelings. For example, if you feel that a particular statement is not true,
express your concerns by stating that “I don’t trust you. I am not able to
believe what you are saying.” Do not state “You are a liar.” The former
statement is clearly true. The latter statement may be subject to debate and
can easily precipitate an unnecessary argument. The latter statement also
does not address the serious issue of lack of trust. Negotiators refer to this
preferred manner of expression as making “I” statements. “I” statements are
never followed by the words “that you . . .” For example, saying “I feel that
you are a liar” is not an “I” statement. “I” statements express your own
underlying concerns or feelings; they do not describe your partner or his/her

6 )  Remember that the collaborative process is completely voluntary. You
and your partner will continue in collaboration only so long as you both wish. You
are free to terminate the process at any time. You have the right to say “no”
at any time. It is important to remember this right. Knowledge of your
entitlement to stop at any time gives you the freedom to consider options
without feeling coerced.

7 )  Be creative. Attempt to think “outside of the box.” Be willing to consider as
many options as possible for meeting your interests as well as your partner’s.
Focus on being creative. For example, “brainstorm” potential options and
develop as many choices as possible before shifting into an evaluative mode
and choosing solutions. If you already have ideas about how certain issues
should be resolved, be willing to park those ideas on the shelf while facts and
priorities are reviewed and options are developed. You can always reconsider
your original ideas later, after much more information has been gathered. The
best and most lasting solutions are those that emerge from broad consensus
about the facts and shared awareness of goals and priorities

8 )  Respect the fact that the big changes taking place in your relationship will
present different challenges for you and your partner. You are both going
through a difficult transition. Sometimes the difficulties are greater for one
person than the other. Sometimes one of you will have already fully accepted
the idea of the relationship ending, while the other is just starting to adjust to
that reality. You will each have different needs and a different timetable over
which such adjustments will occur. You will each process information
differently and make decisions in different ways. Be respectful of these
differences and difficulties and do not take them personally. Consider the
possibility that each of you is doing the best that you can.

9 )  Consider conflict as an opportunity to be creative. Most people encounter at
least a few issues which are very sensitive and which can lead to some
conflict. The potential for conflict should not lead to the avoidance of
important issues. Conflict can be useful inasmuch as it can help clarify what is
most important to each partner, and why. Conflict can be a useful tool if it
leads to a productive result and is handled skillfully and respectfully.
Collaboration does not imply an absence of conflict. Collaborative Law does
provide an opportunity to approach potential conflict with a constructive
solution-oriented attitude.

10 )  Listen carefully to your partner’s expressed feelings, priorities, concerns,
and interests. It is very Important that you try to understand what matters to
your partner, and why. True collaboration aims for maximum consensus,
which implies that everyone will be attempting to find resolutions that
encompass as much as possible of what is important to each of you. Mutual
understanding is a prerequisite for optimizing results. Sometimes when you
don’t agree with what someone else is saying you will be fearful that
expressing your understanding signifies agreement. Listening to and
understanding what someone is saying does not constitute agreement. It is,
however, an essential ingredient in the collaborative problem-solving process.

11 )  Be optimistic! There is no risk attached to choosing optimism, and much
potential benefit. You may not have chosen to separate, but even an
unwelcome separation offers unexpected opportunities to “push the reset
button.” Remain optimistic that with diligence and effort a mutually acceptable
result is possible. There is no guarantee that the process of reaching
agreement will be effortless or without difficulties. However, even the most
difficult conflicts can be resolved when there is the intention to do so.

12 )  We are all responsible for the application of “The Help List.” This process
will work best if at the commencement all participants give everyone else
permission to comment gently when one of the principles above is not being
applied. The lawyers are as responsible as the parties for applying the list.

About Institute

Bob O'Connor, MJuris, MDiv, LLM in Dispute Resolution Bob brings a wealth of experience to his work as an alternative dispute resolution practitioner and trainer. He has worked with families in crisis for nearly three decades, and has mediated hundreds of disputes. Upon his graduation from Albion College in 1977, he began his legal training in England at Oxford University where he earned an M.Juris. He pursued but did not finish his J.D. at Notre Dame Law School, and later received his LL.M. in Alternative Dispute Resolution at The Straus Institute for Dispute Resolution, Pepperdine University School of Law. In between his legal studies, Bob earned a M.Div. degree with honors from Yale University, and then served as a minister, counselor, and teacher for 17 years. He has dedicated himself to the development of the field of alternative dispute resolution. He is the author of Marital Separation Agreements A Guide for Non-Lawyer Mediators (ICR Publishing 2011), Five Essential Steps to Negotiate Your Same-Sex Marriage (Forbes 6/14/12), and Same-Sex “Marriage” What’s in a Name? (ADR Times 7/9/12) Bob lectures in leadership development to the non-ADR community, and on practice-related issues in mediation. In addition to his private practice, Conflict Resolution Specialists, he served as a certified Superior Court mediator in Florida, North Carolina, Georgia, and California. He also founded the Institute for Conflict Resolution—an education and publishing entity—and Good—a nonprofit organization helping at risk middle school teens stay in school and out of gangs. Bob founded the Institute for Conflict Resolution to respond to the need in this region for a premiere education and training organization.

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