Mediator Tips
Identifying and Understanding Domestic Violence

Note: This tip covers some of the basics of how domestic violence is dealt with in mediation. The Community Mediation Center has an entire class devoted to Domestic Violence and Mediation. It is required for anyone who wants to become a family mediator, but anyone interested in the topic is encouraged to take it for a more detailed explanation of how domestic violence works in mediation.

Domestic violence can be difficult to spot because of the strong tendency to keep it secret or rationalize the behavior as normal. As a result, the mediator must be attentive for signs of it during the mediation so that the parties – and if necessary other parties like counselors or the courts – can be made aware of it. According to Anita Vestal in her article “Domestic Violence and Mediation: Concerns and Recommendations,” domestic violence is usually divided into three types: physical abuse, sexual abuse, and psychological abuse. While the first two are generally easy to define, and thus recognize when it is brought up in a mediation, the third is harder. Examples of psychological abuse include:

• Threats and Intimidation: these include threats to take the children away, destroy someone financially, attempts to coerce someone into illegal activity, displaying or threatening with weapons, etc.


• Using Economic Resources: such forms of abuse include unilaterally maintaining exclusive access to cash, credit cards, bank accounts, accruing debt in the partner’s name, and withholding child support payments.


• Stalking: such forms of abuse include repeatedly sending letters, appearing at someone’s work or home, and incessant phone calls that carry the message of intimidation.

Not every case of domestic violence can be handled by mediation, and several tests have developed to determine whether a case involving domestic violence can be mediated. These include phone interviews, preliminary screening, and questionnaires such as the Tolman Screening Model (developed by Richard Tolman) or Conflict Assessment Protocol (developed by Linda Girdner). However, one way to help a case proceed with mediation is to have the parties agree to a couple ground rules. Anita Vestal recommends the following ground rules that both parties need to agree to:

• Acknowledgment of past abuse


• Encouragement of the abused partner to pursue an order for protection


• Requiring and monitoring attendance at anger management classes or therapy for the abuser


• Requiring and monitoring the participation of the abused partner in services for battered women or therapy for the abused partner

Anita Vestal admits that a couple of factors may make a domestic violence case unsuitable for mediation. She identifies these factors as:

• Abusers who seem to have a need to control the abused partner


• An abuser who is easily frustrated by the idea of not getting all that he wants


• An abuser who accepts no responsibility for the abuse


• An abused partner who discloses that she has been abused, but does not want it revealed to the abuser


• Patterns of psychological abuse (with or without physical abuse) that has led to a situation where the abused partner identifies with the abuser's needs as primary and necessary for her survival

Ultimately the issue of domestic violence is a tricky issue with no easy answers. In order to deal with domestic abuse a mediator must have significant training and an ability to control power dynamics. A lot will come down to the mediator’s intuition and what he or she feels they can handle.

2007 Golf Tournament Summary

The Community Mediation Center held its annual golf tournament yesterday, on May 24, 2007. For those of you who weren’t there, here’s a rundown on what happened:

Center staff and volunteers started arriving at the course around 10am to set up for the tournament. This included setting out the signs for tee sponsors, 50/50 raffle tickets, silent auction, and the gifts for the raffle. Registration started at 11am, although most of the players didn’t arrive until noon. After arriving, the players were given a goodie bag with snacks, coupons, a calculator, mints, and some other items and had the chance to purchase 50/50 or regular raffle tickets. After having a lunch consisting of hot dogs, the players went to their carts and headed off for their starting holes.

As it turned out, the weather was perfect for golfing, as well as enjoying snacks of peanuts and beer. Center volunteers were kept busy refilling the kegs and bringing other snacks to golfers around the course. No major problems came up during the tournament, and players starting arriving back at the clubhouse around 5:30pm. After milling around for a while – and buying some more tickets – a dinner was served consisting of bar-b-que, fried beans, and potatoes. While the players were eating the final scores were announced, the winners of the silent auction were able to claim their prizes, and the raffle ceremony was held. Several people got to take home some major prizes, including a dinner for 12 by the gourmet gang, an iPod shuffle, and one complementary one night stay for two at the Crowne Plaza Williamsburg at Fort Magruder. The raffle ceremony constituted the end of the golf tournament, and after it was over the players left for home.

If you want to know more, visit this site in the near future for tournament results and pictures of the event.

Nathan Eckstrand
Community Outreach Advocate

Mediator Tips
Issues of Trust

As any good mediator knows, people in conflict are rarely clashing over the subject matter of that dispute alone; their interests are a large part of the dispute as well. Unfortunately, a dispute will often lead to feelings of mistrust between the two parties as they will each feel as though the other person is acting in a mean or deceitful way (especially if the dispute is over a contract that was broken). Building back trust is an important part of getting the parties to reach a resolution. Unfortunately there is no formula for building back trust, but a good understanding of the types of trust-based conflicts people have may help in figuring out the right way to approach the issue. Steven L. Schwartz, the Managing Partner of ADRSolutions, LLC, divides trust-based conflicts into three types: calculus-based, knowledge based, and identification-based.

Calculus-based conflicts generally involve the immediate situation at issue, that is, issues where the parties are focusing on the specifics of a contract breach, for example. In these cases the parties generally do not have a long-standing relationship. In knowledge-based conflicts the parties have a more detailed knowledge of the others’ habits and activities. They are friends or acquaintances that have known each other for a while. When parties in this type of relationship lose each others’ trust, they are losing trust in that person’s qualities and not just their performance. Finally, in identification-based conflicts the parties have deep seated feelings or an intimate relationship that has lasted a long time. A betrayal of trust of this sort is taken very personally by each party, as they end up losing trust in the entire person they are in conflict with, not just an aspect of them. A solution to this type of lack of trust will have to address the deeply felt emotions each party carries.

Learning to identify the type of relationship, and thus level of trust, each party shares may help you discern what path to follow in a mediation to reach a solution.

Learning the subject matter of a dispute:
Upcoming CMC Training in “Foundations of Mediating Equal Employment Opportunity (EEO) Disputes”

Among members of the mediation community there has been a continuing debate about whether or not a mediator needs a certain degree of expertise in the subject matter at the heart of a dispute being mediated to successfully mediate, or is just skill in mediation enough? For example, is it better when mediating an EEO dispute to know about EEO laws or when dealing with construction mediations to know about the elements of construction?

The mediation purists argue that the mediation process is the same no matter what the dispute is about so there is no need for additional subject-matter expertise. Besides, they remind us that since mediators don’t give legal advice all they need is mediation skill. There are others, myself included, who believe that in certain types of disputes it helps to have some knowledge of the subject matter.

During my 32-years of Federal government civilian service I spent the majority of time as an EEO Manager, Discrimination Complaint Manager, and Mediator. In designing mediation programs as part of the discrimination complaint process, I always relied on outside neutrals who not only were skilled as mediators, but also were knowledgeable in EEO and Federal government human resources. The benefits of this were multi-fold: 1. The mediators were better able to reality test with participants if they understood EEO laws, complaint processes, and Federal government civil service rules; 2. By understanding the complaint process, including applicable timeframes, mediators understood the constraints in which they were operating; 3. The mediators could use appropriate jargon with the participants, which gives the participants a high comfort level that the mediator was really listening to and understanding their issues; 4. Mediators understood better what must appear in a settlement agreement—and what couldn’t; and 5. Perhaps most importantly, this subject-matter knowledge let the mediators know what they didn’t know and when to seek outside expertise.

Following along with this thinking, the Community Mediation Center will be offering a 4-hour training class on Saturday, August 18, 2007, from 9:00 a.m.-1:00 pm in “Foundations of Mediating Equal Employment Opportunity (EEO) Disputes.” The cost of the training is $95, and will provide an overview of employment discrimination, Federal and State discrimination laws and complaint processes, and components of mediating EEO disputes. Visit our website at www.ConflictCrushers.org to register on-line for this course, or any of our other training opportunities.

Leslie Tourigny
Mediation Liaison and AMERICORPS Member

Trainee Tips
Things to consider when taking basic mediation training

There is no national standard for mediation training, so it is important when considering whether or not you want to become certified the quality of the general mediation class. Diane Levin, in an article titled "What to look for in a basic mediation training", offers these suggestions. The first is to figure out what the certification requirements in your state are, as they differ depending on your location. A training director should be familiar with these. Next, ask about the training class itself. What type of mediation process does it teach (facilitative, transformative, or evaluative)? Does the class have activities such as practice mediations or is it all lecture? What ethical quidelines will be taught? Which materials will students use? All of these questions are important.

It is also worth looking into what kind of trainer is teaching the class. Ask about the trainer's background, including what type of cases they have mediated, their experience as a trainer, how long they have been mediating, and how many people they have trained. The trainer should be connected to the conflict resolution world and dedicated to the principles behind mediation.

Finally, figure out what you can do after the training. Some organizations allow trainees to keep involved by providing mediation opportunities to complete the certification process and can give some advice about making a living as a mediator. Ask the training coordinator about what the training organization offers post-training.

Once you collect all this data, use it to make sure that this training offers what you want it to. Here is the article: http://www.mediate.com/articles/levinD1.cfm.

How to prepare for a mediation session

Mediation is a process where a neutral third party person facilitates a conversation amongst two or more people whereby the participants work together to resolve details to their dispute. If you’re participating in a mediation session, consider doing some preparation.

First, think about your position. A position is what you want. It might sounds like, “I want him fired”, “I want full custody”, or “I want $1,000”.

Second, think about your interests. An interest is why you want what you want. Why do you think full custody, or $1,000 sounds like the best option for you. What underlying concerns or issues are there, underneath your position? For example, you may want $1,000 (position) and you may want it so you can afford to have the work redone. So, having the work done properly is your interest and one way to achieve that is to have the business pay for the work.

Third, consider alternative options based on your interests. Following along the above example, if your interest is to have the work done properly another option might be to have the company re-do the work, they could do work on another part of your house for free, they could teach you to do it yourself, they could charge you only for supplies and not for labor (or vice versa) on the second job. When you work from interests there are many, many options, as opposed to when you work from positions where there is seemingly only one answer to the problem.

Finally, consider the details. When does this need to be done, how will it get done, and what are the other terms to the agreement? Make a Plan B – what if the plan doesn’t go as followed? What are all the possible problems (weather, illness, bankruptcy, etc.) and how will we address them IF they come up?

Remember, think of mediation as a conversation. The best thing you can do to be prepared is to practice the conversation on your own before you come to the table. Get clear on what is really important to you, and develop criteria so you know when you’ve reached an acceptable win-win resolution.

Amanda Burbage
Community Outreach Director

Mediator Tips
Responding to Concerns about Mediation

Because mediation is not as readily understood as litigation or even negotiation, it is understandable that clients often have concerns about the efficacy and value of mediation. Sometimes mediation seems like just another step in the legal process that only serves to delay getting a decision, or that it is a trick by one side of the disagreement to get what is owed to the other side. A mediator can convince more parties to attend mediation by responding to these concerns.

When asked whether mediation is any different from court, the obvious answer is that mediators don’t represent any side but are neutral facilitators. This is the point to stress, as the adversarial approach to litigation has become so ingrained into our culture’s psyche that alternatives are rarely, if ever, noticed. Mediation is also different than court because it allows clients to control the process themselves. They decide how much they want to discuss, they come up with the agreement, and they generate the options. If these two points are understood, it does not matter how much they know about the mediation process or how long mediation takes (although they might want to know that later), it is likely that they will be sold on mediation as a concept.

If asked about whether mediation works, and is worth the time, probably the best answer is to mention the success rate of about 90% and how even those who did not reach an agreement felt that mediation was useful. It would also be useful to mention how mediation does not require anything from the participant save his or her time. Given that participants can go to court if mediation does not work out, one has every reason to try mediation, especially if reaching a solution is what is most important.

Certain caveats do apply to mediation, such as the mediator being unable to give legal advice, but those can be covered before mediation begins. The benefits of mediation definitely outweigh the negatives, and by emphasizing the points above, it is likely that most people will agree.

Mediator Tips
The 80/20 Rule

An understanding of the 80/20 rule can help you to avoid frustrations in a mediation when it seems as though the parties aren't making any progress. Basically, the rule says that 80% of the progress the parties will eventually make occurs within the last 20% of the process. The majority of mediation, even when you get past the introduction and storytelling phases, will be dedicated more towards framing the issues and getting a better understanding of the disputed facts in the case. While it may seem obvious that progress occurs at the end, you will be surprised at how often a mediation will follow the 80/20 rule. The point is that you can't expect there to be a gradual progression towards the end agreement, but should focus more on facilitating the discussion. As the Center teaches, a good mediation will often follow the Transformative approach, where the solution will follow naturally from the discussion, especially when the parties see the point of view of the other. Try going into a mediation keeping the 80/20 rule in mind and see how that affects both your mediation style and opinion of how well a mediation is going.