Family Dispute Resolution: engaging the other participant

Recently I received an enquiry from a colleague:

“I was wondering what the guidelines are for the timeline for participant B when making an appointment for FDR? I use the 21 day timeline for a response, to engage in the process, however if they engage and don’t want to make the appointment for several months, where do I stand?”

 

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Participant A

My reply:

“I assess each situation on a case-by-case basis.I am guided by the principles of mediation and the obligations of FDR Practitioners, including and not limited to mediator even-handedness; mediator responsibility for the process; mediator confidentiality; mediator consideration of the individual circumstances;  participants’ self-determination; procedural inclusivethisness; procedural consideration of relationships.

Participant B

Participant B

“The principle from which all others flow, in my opinion, is participant self-determination. This is my opinion, even considering the obligation of potential participants to ‘make a genuine effort’ to reach agreement regarding the children’s arrangements in mediation before they can file in the Court. The obligation of potential participants to ‘make a genuine effort’ is triggered by a coinciding of their timing.

“It is a fundamental characteristic of mediation that it can go ahead only when the participants are at the table, whether in literally or virtually. If they are not, the choice of each is to

  • wait
  • go their own way
  • wait while going their own way

“Each of their choices involves considering their ATNAs (Alternatives To Negotiated Agreements). ATNAs are each of the processes that is available to potential mediation participant, that is not dependent on the voluntary involvement of the other participant. A self-determining participant has the scope to consider each of their ATNAs and to decide on their BATNA.

“Waiting is an ATNA that needs little explanation.

“Going their own way involves considering their other ATNAs.

“As a non-lawyer FDRP, you can provide information and not advice to assist participant A to develop a list of alternative processes and to consider each. (As an aside, it is my firm opinion that this guideline should apply to all FDRPs, independently of their primary qualifications.) How can you distinguish information from advice? Information is what you would say to anyone in a similar situation; advice is individualised.

“The  ATNAs of participant A include waiting until the other is ready; asking for a certificate and not filing in court; asking for a certificate and filing in court; commencing legal negotiation etc. Participant A’s ATNAs do not include private negotiations with participant B because this alternative is dependent on the voluntary involvement of the other participant, disqualifying it from being an alternative to a negotiated agreement.

“In my opinion, it is the role of the mediator to take participant B’s decision to postpone mediation, at face value. That is, you do not ask why they would prefer a delay because that would put you in the position of forming all being assumed to have formed an opinion and possibly being seen to compromise or compromising your evenhandedness. You might decide to ask participant B

  • “What is important to you about how you come to arrangements with participant A?”
  • “What is important to you about the timing of coming to arrangements?”
  • “What might you do if participant A decides against mediation?”

and in response to the answers to that question

  • “What are the strengths of each of those alternatives, for you and for the children?”

The same questions will assist participant A to clarify their thoughts.

The reason for asking these questions rather than ‘Where do I stand?’ is that the questions above address  the principle of interests focused decision-making and the principal of self-determination. The  question ‘Where do I stand?’ is premised on the principles of entitlement and mediator-determination. (It is true that once the mediation is underway, the mediator will make determinations about the process. At this stage, however, the mediation is not underway.)

“If participant A decides to wait for a fixed period and/or indefinitely, you might decide to wait for a fixed period and/or indefinitely. If participant A moves on to another of their ATNAs, you might decide to put their file on hold. After approximately 6 months, in my practice, either mediation is going ahead or I close the file.

“In summary and in very general terms, as I see it, a mediator follows the lead of the participants in establishing the mediation; leads the participants in the process of the mediation and follows the lead of the participants with regard to the content of the mediation.

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Mediators: from tweeting to carolling

This is the third in an occasional series of how I conceptualise the roles of people who attend a mediation. The first in the series was ‘ Mediation: the skilful lawyer‘;  the second was ‘Mediation:participants are the raison d’être.’

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At @HalsmithDisRes I explore the essence of mediation. For example, five among 400+ characterisations of mediation include:

  • Mediation is a meeting of visionaries: those who envision global peace and those who envision local peace.
  • Mediation is effective because it asks ‘What is important?’ rather than ‘Who is entitled?’
  • Mediation is victorious when there are victories without victors.
  • Mediation is authentic and accountable procedural leadership of authentic and accountable thought leaders.
  • Mediation is the facilitated shift from self-interest to joint interests in order to meet self interest.

As I see it, in CDR (Complementary Dispute Resolution) all aspects of mediators’ roles integrate into role models of demonstrating acceptance of and reverence for the uniqueness of each participant. Practically speaking, it is the role of mediators to think of participants ‘You are each right; each equally right and you are stuck. I am here to assist you to find a practical way to move forward.’

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Mediators as proactive designers of a tailored mediation process

  •  listen respectfully to each participant to design the framework for cooperative decision making
  • think compassionately to analyse the conflict so that they can design an approach and interventions which assist participants to fully participate
  • speak optimistically to each participant regarding the mediation process so that the roles of all complement each other
  • facilitate diligently to provide participants with a demonstratively evenhanded process prepare participants’  expectations of the process so that mediation begins smoothly
  • conclude sincerely to have designed a plan for the mediation that is tailored to the participants and their circumstances and that can be adjusted fluently during the mediation

Mediators as evenhanded facilitators of a structured process

  •  listen respectfully to hear what is important to participants so that an interests based dialogue is established
  • think compassionately to implement an approach that is inclusive, participatory, future focused, people oriented and situational so that a continuing refinement of the design is undertaken
  • speak optimistically to explain the process in a way that conveys evenhandedness, informality and each participant’s self determination
  • facilitate diligently to maximise the opportunity of participants to listen generously, think productively and speak moderately so that the purposes of each phase of the mediation can be accomplished and participants can then decide wisely and conclude satisfactorily
  • conclude sincerely to continue to convey the compassion and evenhandedness which the mediation was conducted

Mediators as procedural leaders of progress

  •  listen respectfully to hear mutual interests so that interventions accentuate the creation of mutually satisfactory outcomes
  • think compassionately to indicate the uniqueness of the circumstances of the participants individually and collectively
  • speak optimistically to contribute to a mindset of the possibility of reaching agreement
  • facilitate diligently to provide participants with the opportunity to thoroughly explore all options so that they have choice
  • conclude sincerely to acknowledge the progress of participants and the validity of the outcomes

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Cartoon credits:Morten Ingemann

Mediation: participants are the raison d’être

There are very few aspects about my mediation practice that can be generalised. The a few things are: almost every participant I meet has been having a really difficult time in the weeks, months and years leading up to the mediation; almost every participant I meet has been through a period of blaming themselves and others and almost every participant I meet, because they are ready to consider doing things differently.

As I see it, in CDR (Complementary Dispute Resolution) participants’ roles can almost always be generalised as three interdependent roles: to express themselves assertively, to demonstrably cooperate with others and to actively contribute to each stage of the mediation proceeding smoothly. In each role, participants like all others involved, complement the roles of the mediator(s), the personal supporters and the legal advisers.

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Participants as assertive contributors of content

  • listen generously to be well informed so that they can refine their own points of view
  • think productively to clarify their concerns so they know when the mediation is working satisfactorily
  • speak moderately to express themselves so that they can keep their options open
  • decide wisely to consider advice from personal and professional trusted advisors
  • conclude satisfactorily to focus on the future so that they can move on with their lives

Participants as cooperative contributors to progress 

  • listen generously to hear how others’ concerns are connected to theirs so that joint, creative possibilities can be considered
  • think productively to include the concerns of all  so that proactive discussions can be held
  • speak moderately to respond to what they hear so that each comment is easily heard by other participants
  • decide wisely to persevere through short difficult phases so that all involved benefit from the progress being made
  • conclude satisfactorily to show good faith so that resolution brings benefits for all involved

Participants as partners in the process

  • listen generously to contribute to the mediation accomplishing the purposes of each stage of the mediation
  • think productively to demonstrate curiosity so that they contribute to the inclusive nature of mediation
  • speak moderately to keep the focus on the future so that they contribute to practical outcomes being reached
  • decide wisely to call breaks for thinking time so that the issues receive suitable consideration
  • conclude satisfactorily to acknowledge recognition of having accomplished sufficient of what is important to all

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