How Can Contracting Take a Whole Session?
Date August 15, 2022
Time 12 PM PDT • 3 PM EDT • 9 PM CEST
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Contracting is a crucial part of the mediation process and often overlooked or poorly addressed. Inexperienced mediators worry that the parties (and their attorneys) will be so keen to rush into the content of their dispute that they will have no patience for crafting the container that will help carry them through. However, working with parties in mediation requires us to operate differently than parties usually behave in traditional approaches to conflict. More specifically, clarifying that the parties are in charge of making decisions together to resolve their conflict shifts traditional allocation of responsibility from the professional to the parties, calls for the parties to deal directly with each other in the same room (with the help of the mediator) and opens the basis for the decisions beyond law and includes the personal dimensions of the conflict, including fairness.
In order to achieve this shift, parties and mediator need to define and agree on what the mediation will look like and on each participant’s respective role. We cannot assume that the mediation participants have the same understanding of what will happen in the mediation sessions or that their understanding of the role of the mediator comports with our own. Many people coming to mediation think of the mediator as a judge or someone who will advocate for one of them or for both of them alternately, pressuring them to reach a settlement.
It is necessary before we begin to work, for the parties to recognize that they are co-designers of the process with the mediator and active participants in negotiating the mediation process together. This does not mean that the mediator determines the process or that the parties determine it, but that the mediator and parties negotiate the process together. The “contract” between the mediator and the parties is the container for the process and can be adjusted by agreement as the process continues if the need to change becomes apparent.
By participating in this webinar, you will learn how to:
- Interact with the parties to create the contract
- Avoid slipping into a mediator dominated process
- Maintain mutuality of participation of both parties throughout the process
Gary J. Friedman has been practicing law as a mediator with Mediation Law Offices in Mill Valley, California since 1976, integrating mediative principles into the practice of law and the resolution of legal disputes. Co-founder of the Center for Understanding in Conflict (formerly the Center for Mediation in Law), he has been teaching mediation since 1980. Prior to his work as a mediator, he practiced law as a trial lawyer with Friedman and Friedman in Bridgeport, Connecticut. After several years as an advocate, he sought a new approach to resolving disputes through increasing the participation of the parties in the resolution of their differences. At that time, he and his colleague, Jack Himmelstein, began to develop the Understanding-based model that is now practiced extensively in the United States and Europe. As one of the first lawyer mediators and a primary force in the current mediation movement, he has used this model to complete over one thousand mediations in the last two decades He has mediated numerous two-party and multi-party disputes in the commercial and non-profit realms, in the area of intellectual property, real estate, corporate, personnel, partnership formations and dissolutions, and family law.
Katherine Eisold Miller is an attorney practicing mediation and collaborative practice in Westchester County, NY. She has been practicing family law since 1987, first as a litigator and now exclusively outside the court system. She has taught family law at the White Institute and NYU as well as with the Center and lectures regularly on mediation and collaborative practice. She is a Board member of the New York Association of Collaborative Professionals.