Overcome the 6 stages of mediation

Mediation is not a one-time event, nor is it a one-time meeting where problems are magically resolved.

No. Mediation is a process that occurs with very predictable steps. Understanding these process steps can help you manage through the process. Separated parents who enter mediation may be more successful in understanding these steps and their role in them.

1. Premediation: this stage may have lasted from days to weeks or years. It involves the accumulation of conflict, acrimony, aversive behavior, and failed attempts at resolution, all prior to the final decision to attend mediation. These are all the issues that undermined their relationship and led to their breakup. Combined, the pre-mediation phase can create the impression that one or both parties will not negotiate in good faith; intentionally undermine the process; it will remain immovable in its position. It is vital to understand that these are the typical conditions through which virtually all separated parents first enter mediation. If it weren’t for these conditions, you wouldn’t be considering mediation in the first place. The key is not to be intimidated from the start; so as not to let your previous judgments influence your vision of what the future may hold.

2. Agreement to mediate – You have somehow reached an agreement to enter into mediation. This is where there is often a build-up of tension and positioning. One or both parents may try to harden their position, entrench themselves, or anchor themselves in hopes of gaining an advantage in doing so by entering the actual mediation phase. This can be scary and unpleasant for some. It can erode confidence in the upcoming mediation. The challenge at this stage is to resist engaging in defensive or offensive stances. If / when faced with posture, the challenge is to resist responding. This is not the time or place to start negotiations because often intimidation tactics are only used to exercise or scare you into submission. Ignore and seek support from others. Save your comments and concerns for the negotiating table. Don’t be admitted.

3. Initial stage: this stage can be quick or take some time. It involves the mediator getting to know you and your situation. It is riddled with triggering events – hearing things from the other side that you are opposed to, sometimes an extreme exception. You may feel that the other side is lying, taking a dramatic stance, trying to induce the mediator. You may feel outraged, scared, or disappointed. Note that most mediators were not born yesterday. Your mediator will understand that some clients enter the process ready to take down the other side early on. These are just opening salvoes where one or both people try to gain the upper hand, sometimes through direct or indirect intimidation strategies. Your mediator can allow time for people to be heard without seeking to take sides. Letting someone be heard does not mean that they are influencing anything. In fact, through this process, the mediator is learning as much about people through what they do and how they communicate as well as what they actually say. Often times, the delivery of information by people says more than the content delivered. If things seem to get really inappropriate, most mediators will step in and reinforce the rules of behavior and some will instruct participants on how to deliver content more respectfully. Little or nothing is resolved in this initial stage of mediation. Often, a lot of time is spent actually controlling behavior. To the extent that participants pay attention to the rules and guidelines of behavior, behavioral subsidies. The challenge at this stage is managing yourself, not the other. To the extent that one remains cool, intimidation tactics lose their value.

4. Work stage: this is where the participants finally get down to the substantive work. Despite the accusations, denials, projections, hardened views on the results, the participants can exchange proposals to develop a plan to solve their dilemma. Interestingly, people don’t necessarily have to admit anything strange about their past. This may seem counterintuitive, but what matters in mediation is what people may do differently in the future. Since there is often little or no trust between the participants, strategies can also be proposed to monitor and evaluate the fulfillment of the plans. The consequences of non-compliance with the agreements can also be applied. Since both parties already know each other’s opening position, proposals that start unchanged are not recommended. Rather, proposals that show movement will be encouraged. Hearing topics and proposals, your mediator will also wonder about common short- and long-term interests and will be curious about mutually acceptable roadmaps to achieve those common interests. This change in the mediation process is part of this stage of work. While there may still be skirmishes, disputes, and challenging times, the real challenge is concentrating on what they need to do to meet the needs and interests of others while feeling comfortable that their needs and interests are also addressed and met.

5. Final stage: Mediation formally concludes with the preparation of a Memorandum of Understanding (MOU). This is not a formal legal document, but a document that compromises in writing the understanding of the agreement. Among participants who have gained trust with each other, they can implement the terms of their MOU in a friendly manner. If there are concerns about trust or follow-through, you can formalize the MOU into a legally binding contract. To do so, both of you should take your copy of the MOU to your own attorney for independent legal advice (ILA). Your attorney will review the MOU, make sure it is understandable as written, make sure you understand the terms of the agreement, and inform you of any concerns that arise or have not yet been sufficiently addressed. Parents are advised about choosing an attorney for this process. Some attorneys tend to create problems where they don’t really exist. To that end, I suggest that parents seek ILA with an attorney who has training in mediation and collaborative law or both. Since both parents are satisfied with their MOU, then the attorneys will incorporate the MOU into a separation agreement that will be signed and notarized making it a formal legal contract. If problems are pointed out, parents can go back to the mediator to clarify and / or resolve those problems.

6. Post-mediation: This is where the rubber kicks in in terms of your agreement, whether formalized in a settlement agreement or as a memorandum of understanding. The agreement can be tested by one or the other parent. Post-mediation discussions and meetings may be necessary to review compliance with the agreement. This does not mean that the agreement is wrong or bad. Some deals take time to adjust. There may be changes in parental responsibilities or in the living arrangement. Time to adjust is normal whenever there are changes. The key is to use the provisions of your agreement to address concerns that arise during the post-mediation adjustment phase and not simply to dismiss the agreement in the face of adjustment.

These steps are critical to most mediations.

However, the key to most successful mediations has little to do with these steps. The key is your own behavior or behavior in the process. To the extent that you competently handle yourself emotionally and behaviorally at each stage of the process, you are likely to get a better result. If you are prone to angry, controlling, or violent behavior, seek help in mastering those behaviors, as they will likely interfere with the mediation process and undermine your achievement of anything that comes close to your goals. Likewise, if you are scared, intimidated, or untrustworthy, also consider seeking help to navigate the mediation process.

As much as trying to resolve issues with a former partner may be a terrible idea, consider the alternative. Run.

The court is also plagued with the same or similar stages. However, with the court you have no control over the end result. An order will be imposed with the court which one of you may find quite unsatisfactory. If that is the case, what is the probability of adjustment and follow-up? In mediation, you are in control of the final settlement. There is no agreement until you both say so. As a result, while you may not be completely satisfied with the outcome, you will have come up with a resolution that you can at least live with and that may have provisions for monitoring and consequences. Guide yourself through the stages regardless of what the other may do. Focus on your behavior, not on others. (Provision only – dangerous, abusive or threatening behavior).