The Mediator’s/Negotiator’s Toolkit 1/15/06

1. Reframing

2. Detoxifying

3. Option generation

4. Detail specification (description, elaboration, elucidation)

5. Referral to outside expert/bring outside expert to the mediation table

6. Validation (support, encouragement, approval, praising, crediting, confidence/esteem-

building)

7. Empathic confrontation, including:

  • Posing questions
  • Invalidation (withholding support) and ignoring
  • Labeling
  • Identifying insinuations, innuendos, ulterior motives
  • Conjectural speculation about future implications and consequences
  • Discrediting
  • Rejection and overruling
  • Reality-testing, bringing reality into the room (cf., tool #38 below)
  • Pushing the bottom-line, results-orientation
  • Hypothetical scenario-building, what if you don’t come to agreement here? (cf., tool #39 below): BATNA (what is the best alternative to a negotiated agreement?) and WATNA (what is the worst alternative to a negotiated agreement?)

8. Limit-setting on Acting In (subversion of process during a session) and refereeing

9. Limit-setting on Acting Out (subversion of process between sessions)

10. Defining terms of agreement (agreement-building, codifying, concretizing, finalizing,

crystallizing, reducing to)

11. Brainstorming solutions without critique or judgment (hunting expedition)

12. Labeling

13. Analytic deconstruction

14. Direction and guidance, if and only if to both parties without alienating (advisory

information)

15. Joining and collaboration

16. Process commentary (on the bargaining process, bargaining styles, progress, status)

17. Historical dynamics commentary on the past traditions and patterns the parties’s

relational interactions regarding mutual/reciprocal/independent interests and

positions

18. Causal analysis and interpretation (why do you think this is happening)

19. Ethical analysis (what do you think is wrong here?) and interpretation

(judgmentalism, moralizing, blame game) in the service of shaming or forcing

ownership of responsibility for conduct

20. Paradoxical intervention with intention to elicit a contrary response)

21. Diagnosis of symptomatic behavior (what is happening here in relation to an

recognizable historical interactional motif or clinical syndrome)

22. Consolidation of issues and clarification

23. Interest identification

24. Position identification

25. Brainstorming issues (non-judgmental issue-spotting exercise)

26. Pacing the process (setting pace, rhythm, marching cadence, timekeeping, pushing,

slowing, backing off, breaking session, adjourning, setting timelines)

27. Lending “borrowed” ego of mediator to a party

28. Information gathering (fishing expedition)

29. Inventing common parlance for private language between parties

30. Role modeling

31. Humor for editorializing and educative shaming, including wit, invective, parody,

satire, scorn, self-denigration, pratfall, buffoonery, cynicism and the sardonic

32. Reciprocal validation

33. Highlighting thinking disortions

34. Candy-coating and face-saving

35. Strategic working silence

36. Creating plan of action

37. Determining need for education of a party and learning curve

38. Adjusting expectations

39. Posing hypothetical outcome (best alternative to a negotiated agreement, worst

alternative)

40. Maintaining confidentiality

41. Reporting abuse/neglect as mandated and violating confidentiality

42. Parceling into bite-size chunks

43. Consoling disappointment (mourning loss, grieving)

44. Maintaining confidentiality

45. Lowering resistance

46. Process-minding, -keeping, -enforcement

47. Maintaining neutrality

48. Normalizing emotionality and permission to vent, catharsis

49. Maintaining ethical and safety boundaries

50. Minesweeping (ferreting out pitfalls, anticipating and neutralizing landmines,

defusing live grenades)

51. Avoiding and/or breaking impasse

52. Aspirational goal-setting

53. Providing safety, confessional, facilitating apology and forgiveness

54. Avoiding tendency to stop before fully bargaining and explicit agreement (avoiding

avoidance) to all

55. Allowing bargaining to stop before full and explicit agreement (allowing parties to

still disagree on some items)

56. Saving unresolved items for future bargaining with/without neutral facilitator

57. Keeping the door open to resume mediation in the future

58. Specifying what to do in future if new problems emerge

59. Analyzing body language, nonverbals

60. Promoting transparency (communications open to all)

61. Analogizing

62. Categorizing and cataloguing

63. Floating trial balloons

64. Using “transference”

65. Coaxing

66. Wooing

67. Posturing theatrics

68. Using “positive illusions” to envision a better future world of affairs

69. Using altruistic sentiments to entertain, and induced altruistic conduct to build, a fund

of trust and repertoire of practiced habits for a better world of affairs for oneself,

the “other” party, and/or collateral third party beneficiaries