Training Manual
The Effective Negotiation and Mediation of Conflict: Applied Theory and Practice Handbook
by Robert D. Benjamin
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Overview of Handbook
INTRODUCTION
PART ONE: Theoretical Foundations and Practice Skills
1. Systems Theory, Conflict Systems, and Modes of Conflict Management
Modes of Conflict Management: Overview 1.1
Mediation/Negotiation: Private Ordering and the Legal System 1.2
The Comparison Between Business and Divorce Mediation 1.3
Applications of Generic Mediation Theory and Strategies in Other Contexts 1.4
Factors That Make Matters Susceptible to Mediation 1.5
Systems Theory and Conflict Systems 1.6
Theory, Strategy, Technique, and Skill 1.7
Generic Structure of the Mediation Process 7.1 Structuring the Process: Distributive Issues/Limited Party/Personal Injury 10.1
Structuring the Caucus Session 10.2 "Managing Conflict in the Health Care System" 12.1
"Picture of the Conflict" - Medical Treatment Dispute/Elderly Nursing Home Dispute, Special Education Dispute (Graphic) 12.2 "Picture of the Conflict" - Construction Dispute, Land Use Dispute (Graphic) 13.1
Structuring the Process 13.2
Managing Scientific and Technical Information in Environmental Cases 13.3 18.
19.
Google Mediation/Negotiation: Private Ordering and the Legal System 1.2
2. The Role of the Mediator
Practice Hints 2.1
Articles of Relevance 2.2
“The Risks of Neutrality — Reconsidering the Term and Concept,”
“The Natural Mediator”
“Gut Instinct: A Mediator Prepares”
“Mediation As Theater And Negotiation As Performance Art”
Understanding "Operative Mythology" 2.3
Reconsidering Conventional Wisdom 2.4
“Impeachment Follies — The Mediation Angle,” 2.5
The Spectrum of Rationality 2.6
Analysis, Theory and Skills Necessary to Mediate/Negotiate a Dispute 2.7
The Thinking Frame of a Mediator 2.8
The Making of a Mediator: Systematic Intuition 2.9
The Role of the Mediator 2.10
Distinguishing Process from Outcome 2.11
Articles of Relevance 2.2
“The Risks of Neutrality — Reconsidering the Term and Concept,”
“The Natural Mediator”
“Gut Instinct: A Mediator Prepares”
“Mediation As Theater And Negotiation As Performance Art”
3. Communications Theory & Skills
Practice Hints 3.1
Communications Theory and Practical Applications 3.2
Words and Reality 3.3
Basic Skills for the Application of Communications Theory 3.4
Mediator "Tricks": The Practical Application of Communication Theory 3.5
Graphics and the Visual Display of Information in the Mediation Process 3.6
Crisis Management in Mediation 3.7
Communications Theory and Practical Applications 3.2
4. The Conflict Terrain: Conflict Analysis and Management Strategies
Practice Hints 4.1
Conflict Analysis (Graphic) 4.2
Conflict Management Strategies and Techniques 4.3
Approaches to Conflict 4.4
Managing High Conflict and Impasse 4.5
Conflict Analysis (Graphic) 4.2
5. Negotiation Theory, Strategies, and Skills
Practice Hints 5.1
Framing Issues 5.2
The Traditional Ritual of Negotiation: Offer/Counter Offer 5.3
The Interactive Negotiation Format 5.4
Overview of the Negotiation Process 5.5
Formulating Your Negotiation Perspective 5.6
Guidelines for Generating Options 5.7
Process Checklist for Informed Decision Making - Assuring the "Fairness" of Agreements 5.8
Styles of Mediation 5.9
Formulating Your Style of Mediation/Negotiation 5.10
The Protean Negotiator: Synthesizing the Rituals of Negotiation 5.11
Mediation Style/Approach: Comparative Analysis 5.12
Gender Differences or Variances in Communication and Negotiation 5.13
The Use of Caucus 5.14
Co-Mediation: Risks and Advantages 5.15
Avoiding Impasse 5.16
When and How to Involve Attorneys, Accountants, and Other Experts in the Mediation Process 5.17
Negotiation in Protracted/Intractable Disputes 5.18
Basic Strategies, Techniques, and Skills for Effective Negotiation 5.19
Framing Issues 5.2
6. "Power Balance" in the Mediation Process
Practice Hints 6.1
Power Balance: Assessment and Intervention 6.2
Domestic Violence, "Power Balance" and Mediation 6.3
Mediation of Disputes Involving Domestic Violence 6.4
Power Balance:
PART TWO: Structuring the Mediation Process in Various Dispute Contexts (Forms, Graphics, Exercises, and Agreement Formats)
7. Overview of the Structure Mediation Process
8. Family and Divorce Conflicts
8.0 Applied Systems Theory: The Family Picture (Graphic) 8.0.1
“The Negotiated Family: The Evolution of the Family and the Emergence of Mediation Practice”
Structure of the Mediation Process in Family and Divorce Conflicts 8.0.2
Comparative Time Lines: Emotional/Personal and Legal Process of Divorce 8.0.3
8.1 The Initial Contact
Practice Hints 8.1.1
"A Critique of Mediation—Challenging Misconceptions, Assessing Risks and Weighing the Advantages," 8.1.3
"Does Getting a Divorce Have to be a Battle?" Robert D. Benjamin (Advertisement) 8.1.4
Cover Letter to Prospective Clients (Form) 8.1.5
How to Choose a Mediator (Form) 8.1.6
8.2 The Consultation Session: Gaining Commitment to the Process Practice Hints 8.2.1
Consultation Session: Organization and Agenda (Graphic) 8.2.2
The Family Picture (Graphic) 8.2.3
Traditional Process vs. Mediation Process (Graphic) 8.2.4
Timing/Stages of the Separation Process (Graphic) 8.2.5
Rules of Mediation (Form) 8.2.6
Client Reading List (Form) 8.2.7
Mediation and the Legal Process of Divorce/Settlement (Form) 8.2.8
Agreement to Mediate (Form) 8.2.9
8.3 The First Working Session: Structuring and Organizing the Process Practice Hints 8.3.1
First Session Agenda (Graphic) 8.3.2
Relationship Expectations (Graphic/Exercise) 8.3.3
Goals/Interests—Agreement: Fairness (Graphic/Exercise) 8.3.4
Agenda of Issues (Graphic) 8.3.5
Financial Profile (Statements of Income and Expenses and Property) and Addendum (Form) 8.3.6
Client History (Form) 8.3.7
Client Letter to Attorney Advising of Mediation (Form) 8.3.8
8.4 Parenting Responsibility Issues, Family Systems and Child Development Practice Hints 8.4.1
The Demographics of Divorce and the Impact of the Divorce Process on Children 8.4.2
Parenting Responsibilities: Agenda of Issues (Graphic) 8.4.3
Stages of Personality Development and the Impact of Parental Divorce 8.4.4
Distinguishing Form and Substance in Parenting Planning (Graphic/Exercise) 8.4.5
Distinguishing Parenting Style from Values Issues (Graphic/Exercise) 8.4.6
Choosing Mediative Strategies in Parenting Disputes (Strategy) 8.4.7
Child Abuse Reporting and the Mediation Process 8.4.8
Structure of Approach to Intractable Parenting Disputes (Strategy) 8.4.9
Managing Value Conflicts: A Case Study: "He Drinks Too Much!" (Technique) 8.4.10
When and How to Involve Children in the Mediation Process 8.4.11
8.5 An Overview of the Conceptual Framing of Property Division and Financial Responsibility Issues Practice Hints 8.5.1
Distinguishing Financial Responsibility from Property Division Issues (Graphic) 8.5.2
Proposal Format 8.5.3
8.6 Property Division Issues: Basic Assets Practice Hints 8.6.1
Property Division Tasks (Graphic/Exercise) 8.6.2
Property Division: Approach to Issues (Technique) 8.6.3
Household Personal Property Division (Technique) 8.6.4
Inventory and Valuation of Assets (Graphic/Exercise) 8.6.5
Summary of Property Division (Graphic/Form) 8.6.6
The Process of Valuation 8.6.7
The Valuation Process: Assessing Parties’ Ability and Determining Method of Valuation (Graphic) 8.6.8
8.7 Property Division Issues: Complex Assets Approach to the Division of Complex Assets 8.7.1
Assessing Risk/Return Tradeoffs: Helping Parties Formulate Their Needs, Interests, and Negotiation Perspective 8.7.2
Understanding of Business Investment Assets 8.7.3
Valuing a Closely Held Business (Form) 8.7.4
Understanding Deferred Compensation Plans (Graphic) 8.7.5
Understanding Real Property Division (Graphic) 8.7.6
Use of Outside Experts and Resources: Professionals, Accountants, Financial Planners, Attorneys 8.7.7
8.8 Financial Responsibility Issues Practice Hints 8.8.1
Financial Responsibility: Approach to Issues 8.8.2
Factors in the Negotiation of Financial Responsibility (Graphic) 8.8.3
The Distribution of Financial Responsibility (Graphic) 8.8.4
The Budgeting Exercise: Financial Profile (Income and Expense Statements) 8.8.5
Practice Hints: Child Support Guidelines in the Mediation Process 8.8.6
Sample: Missouri Form 14: Child Support Worksheet and Guidelines (Form) 8.8.7
8.9 Administrative Issues and Tax Considerations Practice Hints 8.9.1
Incorporating the Property/Financial Settlements into Legal Formats 8.9.2
Tax Information for Divorced or Separated Individuals, IRS Pub. 504 (Form) 8.9.3
8.10 Confirming the Understanding: Preparing Effective Agreements and the Integration of the Mediation Process with the Formal Legal Process Practice Hints 8.10.1
Preparing Effective Memoranda/Agreements 8.10.2
The Enforceability of a Mediated Agreement: Compliance vs. Enforcement 8.10.3
Format: Proposed Property Settlement Agreement and Parenting Plan/Memorandum of Understanding (Form) 8.10.4
Format: Trial Separation Agreement: Letter of Understanding (Form) 8.10.5
Format: Post Dissolution Modification of Parenting Responsibility and Financial Responsibility (Form) 8.10.6
Cover Letter to Clients (Form) 8.10.7
Letter to Attorneys: Role and Importance of Legal Counsel in Mediated Cases (Form) 8.10.8
9. Overview: Mediation in Business and Civil Dispute Contexts (Employment/Organizational, Lane Use/Environmental, Personal Injury/Damage Claims, Health Care/Treatment)
Practice Hints 9.1
Generic Structure of the Mediation Session 9.2
Checklist for Mediator Introduction of Parties to Mediation: Gaining Commitment to the Process 9.3
Agreement to Mediate (Form) 9.4
Format: Business/Commercial Disputes– Memorandum of Understanding (Form) 9.5
10. Personal Injury/Damage Claims
11. Employment and Organizational Disputes
The Organizational System 11.1
Identifying and Assessing Options 11.2
Federal Laws Prohibiting Job Discrimination: Overview 11.3
U.S. Equal Employment Opportunity Commission: Agreement to Mediate 11.4
State Civil Rights Enforcement Process 11.5
12. Health Care/Treatment Disputes
13. Environmental/Land Use Disputes
PART THREE: The Professional Practice of Mediation: Ethics, Economics, and Law
14. Ethical and Professional Issues and Standards of Practice
Practice Hints 14.1
Types of Dilemmas in Mediation Practice 14.2
Distinguishing Legal, Ethical, Personal and Professional Issues 14.3
"Ethical Considerations in the Use of Arbitrative Styles or Models of "Med-Arb Mediation Practice," 14.4
“Ethical and Professional Issues in Transformative Mediation,” 14.5
“Ethical and Professional Predicaments: Complaints Against Mediators: Some Practice Hints,” 14.6
“Mediation and ‘The Unauthorized Practice of Law’,” 14.7
“Mediation and Therapy — The Legal and Ethical Considerations,” 14.8
“Professional Associations May Create Conflicts of Interest,” 14.9
Model Standards of Practice For Family and Divorce Mediation (2000)14.10
Joint Standards for ABA and SPIDER 14.12
Uniform Mediation Act, Approved Draft (February, 2002) 14.13
A Brief History of Ethics in Negotiation 14.14
Types of Dilemmas in Mediation Practice 14.2
15. "The Law" and Legislation Relevant to Mediation Practice/Court-Related Mediation Practice
Practice Hints 15.1
“Mediators As Peacemakers: The ‘Revenge Effect’”
“Lessons From Frogs: The Place Of Mediation In Our Cultural Ecology”
Legislation/Court Rules Enabling Mediation 15.3
Sample Court Order for Mediation (Example) 15.4
Selected State Statutes Relevant to Confidentiality in Mediation 15.5
“Mediators As Peacemakers: The ‘Revenge Effect’”
“Lessons From Frogs: The Place Of Mediation In Our Cultural Ecology”
16. The Economics of Practice and the Marketing of Mediation
Practice Hints 16.1
Marketing Strategy: Conflict Mediation as a Fanciful Idea or Realistic Option 16.2
Mediation and Conflict Management Services (Brochure) 16.3
Advertisement Sample: Divorce 16.4
Web Site Design and Resources: www2.mediate.com 16.5
PART FOUR: Resources and Reference Materials
17. Professional Organizations in Dispute Resolution
Professional Organizations 17.1
Consultation and Advanced Training in Mediation 17.2
Association For Conflict Resolution: Membership Information 17.3
Association of Family and Conciliation Courts: Membership Requirements and Information 17.4
18. Bibliography & Internet Resources
19. List of Forms Index