Public Resources | Webinar: Crash Course on the Stages of the Mediation Process

Webinar: Crash Course on the Stages

of the Mediation Process

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Transcript of the Webinar

Welcome. You could be resting or spending time with your children or doing laundry, but you're here instead and I appreciate it, thank you :) I'm Barry, and this is a crash course on the stages of the mediation process, from start to finish. What happens in a mediation session, in what sequence, and what the mediator is working to achieve at each point.

A quick word on what I’m presenting tonight. Everything I'm going to say comes out of our training, almost word for word and that is deliberate. This is the material our students work through, and I'd rather give it to you straight than to give you a watered-down version of it.

What you’ll walk away with:

First, the seven stages of a mediation session — your seven strategies — and the tactics you’ll be using in each of the seven stages.

Second, two detour strategies — now these aren’t stages, they are tools or interventions you can use to bring the session back on track when things go wrong.

Third, the one strategy that runs underneath the entire session, which is of course risk containment.

And fourth, we will identify the trigger that tells you it’s time to move onto the next stage or strategy.

To the newcomers: don't try to memorise anything tonight, just follow along. To the practising mediators in the room: stay with me through the stuff you already know, I promise you’ll learn something new.

One more thing before we start. This section is a practical guide on conducting a mediation session and should be read with the cheatsheet (download it at the top of this webpage).

The Map

Here's the whole process on one slide.

Now just a note on the vocabulary we’ll be using. In the previous webinar we spoke about strategies, tactics and techniques.

Your strategy IS the stage you're in. You can see them on the cheat sheet numbered 0-6. Every stage IS its own strategy.

Tactics are WHAT that strategy must deliver, in other words how we implement the strategy. You’ll see them on the cheatsheet in the column titled “deliverables”.

The techniques are HOW you deliver it, so if you look at the “examples” column and the “tips” column, those are the techniques we use.

The common mistakes column is exactly what the name says.

So looking at the cheatsheet and reading it from left to right: Strategy (or stage), tactics (or deliverables), and techniques (or examples and tips).

From top to bottom, the stages start at stage zero or strategy zero, which is preparation.

Then One, the introduction and asking for opening statements.

Then Two, setting the agenda and asking for opening statements.

Three is exploration — where we find what matters.

Four is option generation — where we allow the parties to build the proposals.

Five is reality-testing and evaluation — where we test whether the proposals are going to be strong enough to work in real life.

And six is negotiation and consensus building — where we close and record each of the points of agreement.

Now two of these strategies are not stages. We’ll call them ‘detours’, because if the parties go off track we’ll use these strategies to get them back onto the road.

The first one is called ‘de-escalation’, and its job is to stabilise the room.

The second one is called the ‘domino’, like when you played dominoes as a child and you would knock one over and there’s a whole cascade that happens. The job of this strategy is to remove the thing blocking your path, and you’ll find that when you knock the first domino over, it becomes easy to resolve all of the issues standing behind it.

The detour will temporarily take you off the stage you’re working on. You take the detour, you do the work, then you come right back to where you were. When you’re doing your practicals and you’re in the coaching sessions, you can even say out loud: "Let's park this for a moment", and then afterwards you pick it up where you left off.

So the one thing running underneath everything we do in the sessions with our clients is risk containment — where we make the process safe before making it productive. It is not a stage and it is not a detour. It is a strategy that never switches off.

Now, one caution on the sequence of the stages (or strategies) before we get into the details on each of them. Your mediation sessions always start at the beginning and terminate when we reach the end, but there’s a part in the middle — the yellow stages on the cheatsheet — where there is fluidity, like in a regular conversation.

The yellow stages give the mediator the freedom to move between exploring, generating options, and testing whether they actually work.

Then once an option or a proposal survives reality-testing, we take them into the final stage where we negotiate and record the details.

Once an issue has been settled, we’ll go back for more issues, we’ll spend more time in the yellow stages, and take them into the final stage until we run out of issues.

That’s the whole thing on one page. If you can follow this model, you can meditate.

Triggers

Every strategy — every stage and every detour — has a trigger. If you’re going to take a screenshot or a photograph tonight, this is the slide you’re looking for.

Stage 0 is preparation, so when you prepare to mediate, you're going to study the case file and you’re going to arrive in the right frame of mind.

Stage 1 is introduction: when you open the mediation session. Here you’re going to deliver a short introduction in about 45 to 90 seconds, and then you’re going to ask the parties for their opening statements.

Stage 2 is where you set the agenda after the introduction. Here we’re going to turn what the parties said into a neutral list of agenda points.

Stage 3 is exploration, so once the agenda has been set, we’re going to get all the facts on the table, and then we’re going to start the process of moving from positions to interests.

Stage 4 is option generation, so once you’re able to separate the positions the parties came in with from their interests, we get them to put proposals on the table.

Stage 5 is reality-testing, where once the parties have generated an option or proposal, we test it against real life implementation.

Stage 6 is negotiation and consensus. When an option has passed reality-testing, we flesh out the details and then we record points of agreement.

Now those are all the stages of the mediation process, but we’re not done with the list.

De-escalation is a detour at my disposal. If the room gets heated, I can use de-escalation to bring the temperature down.

The Domino is another detour that I can use. If the session gets stuck, or if a party keeps coming back to an issue, I know I need to find the domino, and I need to remove it so we can move forward with the session.

All of this gets underpinned by risk containment: where we make the process safe before making it productive, and we keep on doing this throughout the session.

Here’s the catch: if you’re busy with your practicals, we might stop you mid-session and ask: "What are you trying to achieve at this moment, and why?" If you are able to answer the question, I know that you know what you’re doing.

A solid response might be: "I'm in exploration, because he still can't tell me what she's worried about." In other words, the positions have not yet been separated from the interests.

Right, let’s get into stage zero.

STAGE 0 — PREPARATION

This stage of the mediation process is the easiest one to overlook, and it will cost you the most if you skimp on it.

Before your mediation session, do the following:

Study all the relevant documentation, previous agreements, court orders, the works. Do it at least a day before the session, not on the same day.
Prepare yourself mentally so that you’re in a state of relaxed awareness — a.k.a. "being in the now", or being "fully present".

Let me say a bit about the last one, because it sounds ‘airy fairy’ but it isn't.

Every morning when you wake up you are programming yourself for the rest of the day, whether you know it or not. That first hour of the day is the most precious hour.

Skip Facebook, skip WhatsApp, skip the news. Create a relaxed, focused state of mind while you’re getting ready for the day, a kind of "centre point" that you can come back to any time during the day.

Now going into the mediation session, remind yourself: “I have fully prepared, I’ve done everything I needed to do, and all that I have to do today is to just listen to what my clients are saying”. We’re just going to have a conversation, there is never any need for a "performance" on the part of the mediator.

If you’re mediating online, like most of us do: keep the cheatsheet open on your computer — nobody can see what’s on your screen.

The common mistakes to avoid in this stage: trying to keep a zillion concepts in your head, which means you’re not being fully present. And of course you have to actually prepare the case.

STAGE 1 — INTRODUCTION & OPENING STATEMENTS

Your introduction is going to set the tone for the rest of the session. It is not just a formality. It creates structure and clarity for the rest of the session. See the introduction as an icebreaker: you want to move the room from a formal feel to an informal feel as quickly as possible.

The introduction covers five things: welcoming, neutrality, confidentiality, voluntariness, and opening statements.

You’ve already met with the parties and you’ve already explained all of these concepts to them before, today you’re just reminding them of the roles each person is going to play.

Now, as a mediator, you are always working against the clock. Keep your introduction short, they’re not going to remember it anyway. Save time for the later stages in your session.

Here’s the introduction I like to use:

"Thank you for being here."
"What we discuss in today’s session is confidential."
"My role is to help you to explore solutions while remaining neutral, and we're going to explore different options to arrive at a good settlement for both parties."
"The process is voluntary: I’m not going to force you to do anything and you're welcome to get a legal opinion before you sign any agreements."
"Next, I’m going to ask each of you for brief opening statements. Let's start with Party X. Now there's no benefit to going first. Party X, tell me, what are the key issues we need to resolve today?"

That's the whole introduction. Less than a minute and everybody knows what’s happening.

Here’s the technique: Practice your introduction on camera or in front of the mirror. Slow down. Imagine you're explaining something to a close friend.

If you’re nervous, stick a photo of that friend or family member onto your laptop next to the webcam, and pretend you're talking to them instead of the parties.

Try to shake the formality as early in your session as possible. Your clients are going to open up about some very private matters, let your voice and your presence show them that it’s safe.

The most common mistake mediators make is not rehearsing the introduction or putting a whole bunch of words into it that really serves no purpose.

Ok, introduction done.

STAGE 2 — AGENDA SETTING

Here we’re going to turn the parties' opening statements into a short, clear list of issues.

The mediator listens closely for what the parties are saying, but even closer for what they are implying. The next step is to record the agenda points, summarise them while filtering out abrasive language, and then check if you missed any points.

If you still have the cheatsheet open on your screen you can see how easy it is to let the cheatsheet do the work.

Filter for content rather than emotional detail. This means not recording accusations as agenda items. Use neutral language instead.

Look for the subtext, the implied issues that are not being said in words. And then confirm the agenda with both parties.

Now here's where it’s easy to get things wrong: The issues raised by the parties are not the agenda points. The agenda is the neutral list of issues to be addressed.

So: "I don't want him to see the children" becomes "contact arrangements".

"I want the house and the Mitsubishi" becomes "the division of the assets, including the house and the cars".

Neutralise abrasive language. "He cheated on me with his assistant" becomes "the outside relationship".

The final product looks something like this. "Thank you, Party X. To summarise: your agenda points are: one, contact arrangements. Two, division of the assets, including the house and the cars. And three, the outside relationship." Then: "Did I miss any points? Ok, Party Y — what are the key issues we need to resolve today?"

A few techniques:

Use the Notepad on your computer to write down single words or phrases as the parties speak, and then keep it open so that you can record additional information as the parties are speaking during exploration.
Resist the urge to "fluff" the agenda points, or to try to explain concepts to the same people who explained them to you a second before. You're just reading a list. The parties will provide the context and the explanations later. So don’t explore yet, that’s the next stage.
If the parties interrupt each other, here's what you do. One: let them run out of steam. Two: wait in silence for two or three uncomfortable seconds. Three: say to the offender, "Party Y, we'll explore this after we set the agenda. Party X, please continue."
If the parties again interrupt each other, let them run out of steam, wait two to three seconds, and immediately go into side meetings without explaining anything.

The most common mistakes mediators make include:

Missing agenda points — where they’re not looking for implied meaning
Exploring during agenda setting, and
Losing your composure during interruptions

Onto stage 3 - exploration, where we find that matters

STAGE 3 — EXPLORATION (FIND WHAT MATTERS)

Now we're into the middle of the session, and I want to show you the shape of it before we start.

We’re moving between three stages and each one is its own strategy: three, exploration; four, option generation; and five, reality-testing and evaluation, where we’re going to prepare solutions for stage six, negotiation and consensus building.

The yellow bar on the left of the cheatsheet indicates this. Once an issue has been resolved, you can move back into exploration, or you can go straight to option generation.

This part of the session does not have a rigid structure — rather, it is fluid.

The purpose of exploration is to determine the status quo, to find targeted information, and to resolve the dominoes and the agenda points.

Here the mediator uses joint sessions and side meetings.

Save time by establishing the status quo in the joint session, checking for only that information that will give you the lay of the land. For example, what the current arrangements are, whether they are still living in the same house, how often each parent sees the children, when the last time was that maintenance was paid.

From here, you have complete freedom to choose between joint sessions and side meetings.

And here's the test I'd like you to apply: before you go into caucus, can you name the purpose of the side meeting? If not, stay in the joint session.

By now you probably already know what the dominoes are.

Choose one or two big issues and focus exclusively on those. Trying to get all the facts on all the issues is going to cost you precious time and it’s just going to create confusion.

So: explore only the one or two most important issues at a time.

Let me give you the actual words. In the joint session, for establishing the status quo:

"Are you both living in the family home? … When did you move out, Party X?"
"How often are you seeing the children, Party X?"
"When was the last maintenance payment for the children received, Party Y?"

Then for the side meetings, for targeted exploration, you announce it as: "Now that we have an agenda, let's flesh out the issues in side meetings. I'd like to chat with Party X first, then we catch up immediately afterwards, Party Y."

In the side meeting with Party X, you open with: "What we discuss in side meetings is confidential." Then, immediately: "What's the one issue that matters the most to you?"

When you find what you’re looking for, you might ask something like: "If I take this back into the joint session, how would you like it to be framed?"

And at the end of the side meeting: "Is there any of this that I cannot take back into the joint session, Party X?"

Note that we ALWAYS open side meetings with confidentiality, and ALWAYS close side meetings by checking what we cannot take back into the joint session.

Ok, so let’s take a look at good questions and bad questions.

Good questions vs. Bad questions

The quality of your exploration depends on the quality of your questions, so let me compare the two side by side:

Bad questions are yes/no questions. Good questions are open-ended.
Bad questions are stuck in the problem. Good questions are future focussed.
Bad questions are party-centered. Good questions are child-centered.
Bad questions deal in positions only. Good questions look for interests.
And in bad questions, the mediator comes up with the solutions. In good questions, you allow the parties to come up with the solutions.

Let’s take a look at two examples.

On drug testing and supervised contact: the bad version is "would you be ok with him doing drug tests to prove he's sober?" Notice how it has a yes/no answer and how it focuses on the problem.

The good version of this question is "how do we keep the children safe?"

Let the parties come up with the solution. All the research out there shows that this is crucial for a durable agreement between the parties.

On rehabilitative maintenance: the bad version is "would you be willing to pay her R15,000 p/m in maintenance until she finds a job?"

The good version is "how can we get her to become financially independent?"

The way the question is structured is important. Look at the difference between these two: "Why do you want that?" comes across like an attack.

"What would it mean for you if XYZ happened?" sounds like you’re genuinely looking for an answer.

Some techniques for this stage:

Ask short, open-ended questions.
Build rapport with active listening in side meetings. This is the currency that’s going to allow you to do reality-checking later. Ask about what happened, and listen actively.
Normalise emotions, not positions or conclusions. For example, you can say "that's completely understandable", instead of "your anger is justified because he treated you badly".
Mediate with certainty — not asking "is it ok if XYZ ?" When you go to the dentist, he doesn't ask "is it ok if I inject you now?" He just does it. And you trust him to do it because he’s a professional. You don't need to explain yourself to the parties.

Some common mistakes in exploration:

Asking "how do you feel about…?" The question doesn’t serve any purpose.
Leaving questions hanging and then not reaching a conclusion. It’s always better to finish the issues one by one, as far as possible, before moving on to the next issue.
Trying to explore all of the issues at the same time instead of having a laser focus on one or two issues.
Another bad habit all of us start our mediation careers with is making statements instead of asking questions. Keep your statements to a minimum and you'll sidestep a lot of unnecessary problems.

Ok, onto stage 4 - option generation, where we build proposals.

STAGE 4 — OPTION GENERATION (BUILD PROPOSALS)

Option generation is the stage where the mediator lets the parties generate the options. While the parties are doing this, the mediator guides them from positions to interests. A position is what a party says they want. An interest is why it matters.

For example, the position is stated as: "I want the children every weekend" but the real interest is: "I want meaningful time with the children and to remain involved in their lives."

Can you see the difference between the two? We have to read between the lines.

Once the interest becomes clear, more options become possible.

So here are the tactics:

Let the parties generate the options
Uncover the underlying interests, and
Get workable options onto the table, with both parties making a contribution

My favourite play for this stage is called ‘future mapping’.

It goes like this: "I want you to skip forward in time, two years from today. The divorce is over, you have an amazing relationship with your children, and you have a good working relationship with your ex. Maintenance is paid on time every month. Your children are flourishing. Help me to see what you're seeing. What will your life look like in two years?"

Let them answer. And then: "Ok — how do we get there?"

This one is my fallback question: "What is your suggestion for resolving this issue?"

Here are the techniques:

Allow the parties to generate options. You're going to feel tempted to give them the solutions — don't. This is where you shine as a mediator: by asking the type of questions that guide the parties to the solutions. You already know what a good solution might be, use that, but do it indirectly.
From time to time you will be blessed with parties that cannot generate options. Go as far as you reasonably can with guiding questions before you make suggestions. Recognise that making suggestions is second place, because now there’s a solution but there’s no buy-in.
Write down the options the parties generate in their own words - doing this creates buy-in.

The most common mistakes we as mediators make are:

Getting stuck on positions. If you get stuck, go back to the best interests of the children. Work on creating that mental picture in your client’s mind two years into the future.
Suggesting solutions too quickly
Stopping the process of option generation the moment you have your first option on the table, and
Evaluating options while you're still collecting — because this kills the creative process and now we’re not generating options anymore.

STAGE 5 — REALITY-TESTING & EVALUATION (TEST IT)

Reality-testing is where we help the parties to evaluate whether their ideas are practical, sustainable and workable.

Challenge their beliefs. They came to the mediation session expecting to be challenged.

Your friends are too kind to tell you where you miss the plot, and your enemies don't want to waste the time. But a good mediator is fearless, and a good mediator will help you to see where you’re wrong in a way that is respectful.

So: challenge their beliefs. Test their options to see if they will survive the real world. Use the standard of the best interests of the children to show you where North is.

Let me give you some questions to ask the parties:

"Talk me through how this would work in practice."
"Is this affordable?"
"Walk me through next Tuesday — what happens the first time someone's late?"
Or even BATNA: "If we don't reach an agreement today, what is the next best solution?"
And: "What would have to be true for this arrangement to still work in a year from now?"

All of these questions are designed to show the potential weaknesses of an option or a proposal.

Here are two techniques you can use:

Create an environment where it's ok to be wrong. That’s what brainstorming is all about.
If somebody comes up with a terrible proposal, ask, don't tell. "If a judge heard that argument, what do you think they'd ask you next?" This one does the work of an opinion without costing you rapport.

And here's how you know you're finished. You're finished when both parties can say what happens if the plan fails, and the proposal has a who, a when and a consequence.

"Every second weekend" is not a proposal. "From Friday 18:00 to Sunday 17:00, collected from the house, and if he's going to be more than 30 minutes late he phones her" — that’s a proposal.

The most common mistakes mediators make are:

Avoiding reality-testing.
Or doing the exact opposite and cross-examinating the parties, or
Giving legal advice.

Onto the final stage in the process.

STAGE 6 — NEGOTIATION & CONSENSUS BUILDING (CLOSE AND RECORD)

Negotiation and consensus building is the stage where you build the agreement.

It is also where you close an issue by turning it into points of agreement, and then you record the exact details. The focus now becomes: what can the parties agree on, and what still needs to be resolved?

So what are we aiming for? It’s one of two results:

You either reach a detailed final agreement on key issues — care, contact, maintenance, division of marital property — or
You reach an interim agreement

And then you confirm and record the points of agreement.

Time is always an issue, so especially when you’re dealing with a complicated case, you’re probably not going to have enough time to get all of the issues resolved in a single session, so interim agreements are fine.

Work on the immediate issues first. Dividing the assets could take days or weeks, what about the immediate issues like, getting interim maintenance paid and ensuring that the children have contact with both parents.

Remember the details. Amounts of maintenance payments — five thousand rand a month. Dates of maintenance payments — paid on the 30th of each month. Dates and times for contact arrangements — every second Friday afternoon at 18:00, starting this Friday.

See how the agreement is actually a detailed plan for the future?

Compare options. Address risks. Trade concessions. Mutualise common interests. Bank each agreed item in writing as you go.

The words you might use might sound like this:

In a side meeting: "What could you offer in return for that concession?"
Or: "Which of these options are most workable?"
"Is there a possible middle ground?"
"What do we still need to resolve?"
And when you’re closing the session: "Let's confirm what we agreed today."

Here are the techniques:

Elicit apologies only if they remove a domino. Do not ask the aggrieved party whether they would like an apology. Do not discuss the apology with the aggrieved party — the apology must come as a surprise.
Mutualise common interests.
Trade concessions between the parties, and thank them for their concessions.

The single most common mistake mediators make is to not go into enough detail.

That's the seven stages. Now the two detours.

Detour: De-escalation (stabilise the room)

The first detour is De-escalation and this where we bring the emotional temperature down low enough so that the parties can think, listen and decide.

It is not a stage. Take the detour, do the work, and continue on the stage you left.

Choose this detour when the parties keep interrupting each other. When accusations are flying and when the parties are not hearing each other.

Choose de-escalation when the resistance is bigger than the logic of the situation.

The tactics are simple: bring the temperature down. Get the parties back to a place where they’re speaking one at a time.

In the joint session, let them run out of steam. Then two to three uncomfortable seconds of silence. Then: "Party Y, we'll come back to that. Party X, please finish."

Here we’re going to use two techniques:

Slow down and drop your volume
Use silence to your advantage when you ask a question. Get over your need to fill every silence with words.

A common mistake mediators make is to say "let's keep this constructive", it comes across like you’re taking sides.

Next, the domino detour.

Detour: Dominoes (clear the blockage)

The domino is that one thing that is stopping the session from moving forward.

Again — it is not a stage. Take the detour, do the work, and continue where you left off.

Choose this detour when one of the parties keeps returning to the same issue. Or when a party attributes motive — "he’s only doing that to spite me".

Sometimes a party might need acknowledgement before they can negotiate - an affair that hasn’t been worked through emotionally is an easy example.

But stick to this one rule before you go anywhere near the domino: do not take this detour while the room is still hot. De-escalate first.

The tactics here are two things:

Give the blockage a name, and get permission to work on it.
Then get whatever needs to be said, out there so the parties can move on.

I want to give you a super valuable tip: rehearse the apology in a side meeting. When I mediated a case last year without rehearsing the apology, it turned out to be a 10 minute monologue about how she was pushing him to have the affairs and how it’s actually her fault. Learn from my mistakes.

Detours done, now for the last strategy.

What runs underneath: Risk containment (make it safe first)

Risk containment is where we’re making the process safe before making it productive.

It is not a stage, and it is not a detour — rather, it is something that we keep in place throughout the session.

You're going to contain risk:

When the safety of a child or a party is in question.
When the parties cannot negotiate freely: think substance abuse, violence, intimidation, or a severe power imbalance.
When a party agrees to everything without asking a single question.
Or when a party cannot participate today — the more senior mediators in the room might have a story about that time one of their clients was drinking before a mediation session. It sounds unreal but mediate for a couple of years and you might come across it.

The tactic is one line: build safeguards into whatever the parties agree on.

And here's the test for whether you've done it correctly. The agreement is still working 100% if one party stops co-operating tomorrow.

One final tip: safeguards are only relaxed on evidence, never on pressure from the parties or their legal representatives.

Make it stick

So — what do you actually do with this? Three things:

Learn the triggers. If you can answer "what am I trying to achieve right now, and why?" At any moment in your session, you're meditating.
Rehearse your introduction. There is no excuse for this being the weakest part of your session.
Pick one thing from tonight and use it this week. Not in a mediation — in a conversation. Master that two-or-three seconds of silence.

And please use the cheatsheet. I use it in my sessions with my clients.

In closing

That's the stages of the mediation process — thank you :)

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