Gary Doernhoefer, the founder of ADR Notable, suggested that I produce checklists for its users. ADR Notable is an app providing case management software to help mediators handle case intake, bill clients, manage client documents, develop checklists and task reminders, take notes, build documents, and manage client relationships generally.
Gary recognized that our respective work complements each other’s. In recent years, I wrote a series of publications leading to what I call the Real Practice Systems Project. I became dissatisfied with traditional dispute resolution theories, which are greatly oversimplified and don’t provide realistic portrayals of actual practice. Part of the problem is that mediation is extremely complicated and variable, even in the simplest cases.
So I developed this menu of checklists for mediators, illustrating numerous factors affecting mediators’ decisions in their practice systems. The checklists are concrete manifestations of real practice system theory, illustrating that each mediator inevitably has a unique practice system. Under this theory, mediators base their systems on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their mediations. They develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.
The checklists are intended to prompt mediators to become more conscious and intentional in their work. They can help mediators develop routines and strategies for dealing with recurring problems. The checklists are not recipes to follow strictly, thoughtlessly, or completely. Mediators can perform almost all of the tasks regardless of their views about various mediation models or theories.
The checklists are extensive but not exhaustive. Mediators wouldn’t do all of the things in the checklists. Instead, they should help mediators decide what to do in any specific case or in their practice generally. Mediators can use them to develop their own checklists, modifying or omitting some items and adding others. They should tailor these checklists to develop their own checklists reflecting their values, practice philosophies, and characteristics of their cases and clients.
The checklists are designed primarily for practicing mediators, but they may be valuable to teachers and trainers, students and trainees, program administrators, and academics analyzing mediation.
Here’s an outline of the menu of checklists.
General Information to Provide in Websites and/or Other Materials
● Information About Mediator’s Background and Practice
● Information About Initiating Mediation
Compliance with Ethical Requirements
Tasks Before Mediation Sessions
● Follow General Procedures
● Conduct Intake Procedures
● Check for Conflicts of Interest
● Explain Key Aspects of Mediation Process
● Discuss Dispute and Participants
● Discuss Parties’ Intangible Interests
● Arrange to Receive Memo and Documents
● Arrange Exchange of Information Between Counterparts
● Schedule Mediation Session
● Make Logistical Arrangements for Mediation Sessions
● Draft Engagement Letter / Agreement to Mediate
Tasks During Mediation Sessions
● Initiate Session
● Review Process Guidelines
● Build Participants’ Trust with Mediator
● Ask About History of Dispute
● Learn About Parties’ Disputing Experiences and Perspectives
● Identify Individual Parties’ Tangible and Intangible Interests
● Identify Organizational Parties’ Tangible and Intangible Interests
● Ask About Options in Addition to Lump-Sum Payments
● Ask Parties to Value Their Intangible Interests
● Identify Parties’ Priorities
● Help Parties Evaluate Possible Outcomes If They Don’t Settle
● Coach Parties About Possible Mediation Strategies and Positions
● Identify and Address Any Emotional Challenges
● Pay Attention for Possible Decision Fatigue
● Help Parties Resolve Disagreements
● End Mediation with Agreement
● End Mediation without Agreement
Reflection and Improvement of Techniques
● Conduct Overall Self-Assessment after Mediation Session or Case
● Conduct Detailed Self-Assessment after Mediation Session or Case
● Interview or Survey Participants
● Organize Reflective Practice Group
● Participate in Reflective Practice Group
People who want to learn more about real practice systems theory can read an annotated bibliography that accompanies these checklists. Most of the entries in the bibliography are short blog posts and articles. It also includes some law review articles and books for people who want to learn about this in more depth.
Take a look.