MAC Blog – Mediating Like A Star

By Dr. Louis L. Fletcher, Board Member and Professional MAC Member 

Introduction

The STAR mediation model is a five-stage tool that diagrams a systematic approach to mediation. The acronym STAR spells out Stage, Tasks, Actions, and Results, which are the taxonomic headings that frame the process. The five stages of STAR are Convening, Opening, Communicating, Negotiating, and Closing. The headings and the stages interact to constitute a 5 by 4 matrix (Figure 1) where “Results” have desired notional end states. The five desired results of STAR are Willingness, Safety and Hope, Expression, Flexibility and Innovation, and Informed Decision. 

The stages and results are dependent variables in the matrix, so “Tasks” and “Actions” are quasi-independent variables that operate within a range of degrees of freedom in the STAR mediation model. The “Tasks” represent what will be done during each stage and “Actions” represent how it will be done during each stage respectively.

Convening

The first stage of STAR mediation is convening and the desired result for this stage is fostering a willingness in all parties to begin the process of mediation. Building the client’s trust in the prospective mediator and the mediation process are key objectives. There may be an aspect of marketing involved in this step, but when clients reach the evaluation phase, the highest priority is to establish rapport. The mediator will make phone calls, or alternatively engage in video teleconferencing, with the parties to establish why mediation might be a better option than other alternatives like arbitration or litigation.

Arbitration requires each party to give up the control they would have in mediation because the arbitrator has decision authority after hearing each party. The arbitration could be either binding or non-binding, which means that the parties could ignore the decision when the non-binding option is chosen. If lawyers or parties have hit an impasse in negotiations, there may not be an appetite to hand over control to an arbitrator so quickly. Litigation is another option, but it is even more restrictive than arbitration and there is no option to simply ignore the decision. If arbitration seemed overly controlling to the parties, then litigation would feel like a straightjacket.

Tasks & Actions 

Once the mediation is established as the appropriate course of action, the mediator will facilitate the logistics of the pending mediation with a pre-mediation conference call or teleconference. The purpose of the activity is to create an environment of mutual understanding about the purpose of the mediation, have a discussion about related details and phenomenology, establish the mediator’s compensation, and other terms of the mediation agreement. Ostensibly, the convening step lays the foundation for an orderly mediation process.

Opening

The second stage of STAR mediation is opening and the desired result of this stage is fostering a feeling of safety and hope in the parties so that they will be more transparent about the issues to be resolved. Prior to the opening, the mediator may arrange the room based on information gathered during the pre-mediation conference. For example, if the parties are very contentious, then the seats will not be situated next to each other. In the opening stage, each party gets to make an opening statement, which sets the tone for progress and civility. The mediator listens to the opening issues and establishes the rules of engagement for the process. 

Tasks & Actions

The purpose of the opening is to engage the parties in an active negotiation process where they are active participants, not passive observers. The mediator facilitates introductions between the parties and reaffirms their willingness to participate from the convening stage. The mediator ensures the parties are comfortable (e.g., room temperature, seating, options, knowledge of bathroom locations, etc.) in the physical environment of the mediation. The mediator should explain and establish their neutrality in the mediation process. The mediator should discuss the limitations on mediation confidentiality during this stage as well. The mediator should also give an overview of the mediation’s process steps and articulate the social contract that constitutes the ground rules for the mediation. 

The mediator couches all of the aforementioned in their opening remarks, then they invite the parties’ opening statements. Once the parties make their opening statements, the mediator summarizes each party’s statement. The mediator reframes emotional or threatening statements into productive neutral statements. This is where the mediator starts to determine their approach to reach an eventual resolution. The mediator must define the core issues that are within their power to mediate and mitigate attempts to attack or derail the mediation. Once the rules of engagement are accepted in the opening, it increases the probability of a mediated outcome.

Communicating

The third stage of STAR mediation is communicating and the desired result of this stage is fostering expression. Once the mediator facilitates a successful opening, the rules of engagement that are the outcome of the opening will guide all follow-on communication. The mediator keeps the dialogue moving by actively listening, summarizing the conversation, and reframing expectations. The mediator paves the path from problem to solution by promoting the parties’ desire to clarify their positions and interests. The goal of the mediator is to gain an understanding of each party’s issues as they relate to the dispute.

Tasks & Actions

The mediator gives each side an opportunity to state their issues as well as the opportunity to listen to the other party’s issues. The mediator keeps the dialogue moving by asking overhead questions. The mediator asks questions that build understanding, but the secondary objective is inspiring empathy in the parties with respect to their counterpart’s issues. The mediator’s active listening skills become crucial during this stage because their accuracy when summarizing issues and positions builds trust with the parties.

This is the stage when the mediator decides if the parties are able to communicate in the same room or need to caucus separately to achieve more effective communication. The caucus provides an opportunity for private conversations with the mediator. It is also an effective tool when parties get heated or bring unresolved negative emotions to the table. The mediator usually gives the party that is not caucusing a task to complete while they caucus with the other party. The purpose of the task is to advance the mediation; therefore, it will be discussed when the mediator returns to that party. The mediator holds information gained caucus confidential unless the caucusing party expressly gives permission to share the information.

Negotiating

The fourth stage of STAR mediation is negotiating and the desired result of this stage is fostering flexibility and innovation. Once the mediator facilitated an effective communication process, the process of negotiation could begin. The focus of negation is reaching settlement as an outcome. The mediator initiates the negotiation to get the parties energized to participate in the process. The mediator also coaches parties the parties through the negotiation with the goal of fostering resolution. The mediator tries to get the parties to surface their interests and hidden agendas. The mediator gets the parties to look at their desired negotiated outcomes realistically. 

Tasks & Actions

The mediator endeavors to be perceived as neutral, but negotiation requires some outwardly directive behaviors. The function of coaching is to get the parties to begin bargaining with respect to their issues. The mediator promotes moving beyond active listening to a place where they can begin brainstorming solutions. The mediator participates in reframing and summarizing to help the parties see the viability of their hypothetical outcomes. The mediator asks validating questions to mitigate the effect of cognitive biases. The mediator will practice “shuttle diplomacy” with each caucus by carrying offers between the parties with the goal of shrinking the zone of possible agreement (ZOPA). The mediator will help the parties to do reality testing on the strength of their best alternative to a negotiated agreement (BATNA) and the severity of their worst alternative to a negotiated agreement (WATNA).

The mediator is embroiled in the heart of the dance during the negotiating stage, which may require near-seismic shifts from caucuses to joint sessions. The mediator may hit an impasse while negotiating, so the mediator must remain fleet of foot to get derailed negotiations back on track. This is where a mediator may ask if they could present a “mediator’s proposal” to both parties or propose “hypothetical offers”. The negotiating stage is where a mediation could die due to a failure of the parties to reach resolution, but a good mediator preserves the artifacts just in case the process can be resurrected at a later date. Hence, the ashes of a failed negotiation could become an attraction on the way to convening a revived mediation.

Closing

The fifth stage of STAR mediation is closing and the desired result of this stage is reaching an informed decision. The mediator is trying to reach a point of culmination in the closing stage, but it will be all for naught if the mediation outcomes are not accurately captured in a memorandum of understanding (MOU). The parties may be exhausted by this point, so it is important to keep them engaged with good summaries of understanding achieved during the negotiation process. Clearly, it would be an unfulfilling experience to plant the seeds, and nurture the growth, but neglect to gather the harvest.

Tasks & Actions

The mediator should produce a durable agreement and a MOU to outline the action steps of the settlement. The agreement should be technically sound, substantively sufficient, and psychologically pleasing to all parties to create satisfaction. The mediator may assist the parties in writing the agreement or may allow a lawyer or lawyers to complete the task. It may be productive to have all parties in a joint session review and affirm their understanding of the document before execution. The document should include background information and implementation steps. Finally, the parties need to countersign the document to make it a legally binding vehicle that gets them to their mediated destination.

Conclusion

The STAR mediation model represents a bona fide systematic approach to mediation, which can be used by any mediator to bring order to the mediation process. The stages build on each other logically, and the tasks and actions plausibly lead to the desired results. The STAR mediation model is not a laundry list for a mediator to work through perfunctorily. It requires the mediator to actively listen and make tactical moves at appropriate junctures. I believe that mediators could arrive at a similar modus operandi after years of practice without the STAR mediation model; however, it makes professional sense to arm novice mediators with The STAR mediation model from the start. I did not invent The STAR mediation model, but I have found it to be a valuable tool to both serve clients and maintain my sanity throughout the mediation process.

The viewpoints, analyses, and opinions expressed within this blog are solely those of the author(s) and do not represent, nor are they intended to reflect, the official stance, policies, or positions of the MAC either in a formal or professional context. The content herein is presented for informational purposes only and should not be interpreted as an endorsement or official communication of the MAC.