New Ways for Mediation – Pt. 1

On January 15th, we released a new Prerecorded Webinar on the new method of mediation I am calling “New Ways for Mediation.” New “ways” means new skills – for clients and for professionals. This mediation method builds on and reinforces the skills that parents learn in the New Ways for Families method [www.NewWays4Families.com], which is being used in several family court systems in the U.S. and Canada. However, New Ways for Mediation is much broader, because its principles can be applied in ANY mediation, including civil disputes and cases involving no one with a high conflict personality. That’s why I encourage any mediator to watch this Webinar, including Part 2 which will be released on February 12, 2014. By combining New Ways for Families and New Ways for Mediation, we believe that 90% of high-conflict separation and divorce cases can be managed entirely out of court. We are seeing results in this direction from our two Canadian programs, which are part of a 3-year study with just 1 year to go. When New Ways for Families skills training for parents is immediately followed by mediation – or other ADR method such as Collaborative Divorce – almost all cases resolve out of court. If the mediation – or other ADR method – applies the principles of New Ways for Mediation, I believe we will be getting 90% or more resolved out of court. This is especially important in these days of court budget cut-backs and the presence of high-conflict personalities in separation and divorce – who are unable to handle the court process productively – for whom New Ways for Mediation was originally designed.

When we released this Webinar, we said I would be answering questions a week later in a blog, based on questions submitted Jan. 15-22 to tdicomes@highconflictinstitute.com. Surprisingly, we have had no questions. So I will answer questions I have received during trainings I have given on this method. (My next 2-day training on this method will be in Toronto on June 2-3, 2014. Sign up for our High Conflict Institute eNewsletter for notice about that training if you or someone you know may be interested.)

Here’s two common questions and my answers:

Why do I almost completely disallow talking about the past, such as excluding “Opening Statements” or learning the “facts of the case.” The reason for this is that high-conflict clients get so easily stuck in the past and it reinforces their stuck positions from the start of the mediation. Since they know the facts of the case from their own point of view, they can take those into account when they make their proposals later in the process. The mediator doesn’t need to know a lot, except for safety issues, such as domestic violence, which can be determined in separate coaching or screening sessions before the mediation.

Instead of Opening Statements, this New Ways method gives each person an opportunity to state their “initial thoughts and questions” about the decisions lying ahead of them. This gives them each an opportunity to talk and get attention, while focusing on the FUTURE and decision-making. It is the first step in training them to make decisions, rather than to focus on blame and past behavior. Of course, there’s a lot slipping into the past, but the mediator brings them back to the future. This also reinforces FLEXIBLE THINKING, because their “initial thoughts and questions” don’t allow positions. It starts out the mediation as an information gathering and problem solving process.

Why am I so specific about providing detailed background legal and child development information early in the mediation? This appears to be quite different from more transformative and other non-directed styles of mediation. However, with potentially high-conflict clients, they are so far apart in their expectations and knowledge of the legal realities, that it is important to get them into the same “ballpark” of information surrounding their decision-making. Often high-conflict clients come in stating that they know they will win in court and they may have a friend, therapist or lawyer who agreed with them. By giving them “neutral” legal “information” (not advice), the mediator helps set the tone of the mediation as about gathering information and making proposals, rather than arguing in a vacuum of  common information.

New Ways for Mediation Part 1 Webinar (a 90-minute seminar explaining the method) will continue to be available on our website and on February 12 we will release New Ways for Mediation Part 2, which is also 90 minutes with 60 minutes of demonstration and then additional commentary. This is, after all, a new year and there is a great need for some for “New Ways” for high-conflict clients.

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Bill Eddy is a lawyer (Certified Family Law Specialist), a child and family therapist (Licensed Clinical Social Worker) and the Senior Family Mediator at the National Conflict Resolution Center. He is the President of the High Conflict Institute, which provides training worldwide in managing “high-conflict people” in legal disputes, workplace disputes, healthcare disputes and educational disputes. He is the author of several books, including The Future of Family Court: Structure, Skills and Less Stress. www.HighConflictInstitute.com.