interest-based mediation: building from the collaborative law ADR model

By Alexandra Moore-Wulsin, a principal at Strata Law Group, PLLC

My client felt prepared for her mediation. She knew her facts, had her narrative, had collected and organized and analyzed her data. In sum, she felt ready to engage in a negotiated process to resolve the outstanding issues needed to end her marriage. Yet she asked me, “How can I prepare for mediation?” I thought for a moment and then shared my observations of what, in my 33 years as a lawyer, I have seen yield results. While this client was going into a facilitative mediation without me, her attorney, present, as we discussed the mindset, I realized it was beneficial regardless of what mediation model my clients use. The other party may not share this same mindset, and strategically, that is unimportant.

Following are some guidelines for emotionally preparing your client to reach a durable settlement in mediation, one to which both parties can say, “Yes.” The key is identifying the client’s underlying interests. Visualize an iceberg. Interests are the submerged portion of an iceberg, and with some introspection, they can be seen and articulated.

  • Come into the mediation with high-end goals. A key to interest-based negotiations – as opposed to issues-based negotiations – is knowing what those interests are. Issues are easily understood as one’s rights – predicting what a judge could rule or knowing what the law says should happen given a client’s facts. Interests, on the other hand, are understood as the needs, fears, concerns, hopes, and aspirations she has as she approaches the mediation. Visualize that iceberg. The issues appear above the water line. The interests lurk below the water line and can be perilous if not identified and factored into a settlement. The client who knows her interests can return to those to measure offers as the mediation progresses.
  • Stay future focused. Mediation works when clients focus on the future. Past grievances and arguments cannot be resolved here, although sometimes an apology or a thank you may emerge. By focusing on the future, a temporal space somewhat within one’s realm of influence, the client does not become bogged down in negative emotions perilous to her ability to think through the many options to possible solutions.
  • Assume that the other party’s statements are made either with good intentions or from a place of fear. The filters through which the client listens to the other party’s goals and proposals affect her feelings in response to those goals and proposals. When the client assumes that the information from the other party comes from a place of bad intentions or anger, she becomes triggered by that information. In a triggered place, my client shuts down. She cannot be generative and cannot listen to the proposal, reflect on how it interfaces with her interests, and develop a reasoned response. By acknowledging that the other party has fears and by ascribing good faith – even when it may be lacking – the client does not herself become bogged down in anger, fear, and anxiety and can continue to steer the mediation towards meeting her high end goals.
  • Participate from a place of good faith. At the end of the day, the client must look herself in the mirror and process her feelings about the mediation. The emotional baggage of how she participated in that mediation may carry forward into the remainder of her life. Knowing that one put one’s best foot forward feels better in the mirror of history. Additionally, operating from a place of good faith is generative of solutions.
  • Manage her expectations – The goal is a durable agreement, one that is good enough. The other party is now beyond the client’s sphere of influence. She will not change that former partner’s behavior. She does best to operate under the assumption that barring a major intervention, historic patterns will emerge in herself and in the other party.
  • Forgive. When the client falls into anger or fear or vindictiveness, if the client can re-center, return to future focus, and forgive herself, she increases the likelihood of reaching a solution and of feeling okay about herself at the end of the day.
  • Organize one’s chits and be prepared to compromise. Think through, ahead of time, what is really important and think through what one is willing to give-up to accomplish what is really important. Whether the client divulges high value issues or interests to the other party depends upon the style of mediation.
  • Ask oneself what, in 5-10 years’ time, one wants the important people in one’s life – children, oneself, or others – to say about this divorce. By modeling respectful dispute resolution, those important people will internalize this respectful approach and will have the opportunity to carry it forward as those people resolve major disputes in their lives. What a gift to one’s children!These are written in no order of priority. Bottom line, come into mediation with a plan to stay centered and future focused and a plan to re-center if anger, fear, or anxiety begins to control the mediation. When one does not identify interest, those three emotions will be the unidentified, perilous, and ultimately destructive interests below the iceberg’s water line. By paying attention to the steps outlined above, the client greatly increases the likelihood of concluding the mediation with a durable agreement.