1 | P a g e

‘Shuttle in Family Mediation – Avoiding the Pitfalls’

Keith Roberts Family Dispute Resolution Practitioner at Wagga Wagga Family Relationships Centre;

a programme of Relationships Australia Canberra & Region.

Keith.Roberts@racr.relationships.org.au

Key Words; shuttle; Family Dispute Resolution; family mediation

Introduction

At the Family Relationship Centre in Wagga Wagga, shuttle mediation sessions form approximately 20% of our workload. The mediations are conducted as Family Dispute Resolution (FDR) and primarily around parenting and children after separation.

The decision making process around determining the suitability of a matter for shuttle, the process for conducting the shuttle, and debriefing have been the subject of intense scrutiny by our Family Dispute Resolution Practitioners (FDRPs).

Having discussed on many occasions the difficulties experienced in traditional shuttle mediation models, the author developed and introduced into practice an idea to document the parties’ proposals in a conversational way on the whiteboard in order to capture the parties’ words and avoid the situation of the mediator being directly caught up as the ‘message taker’.

Through a period of extensive discussion with and support from my colleagues Keryn Foley and Althea Brunskill we have integrated this method of Whiteboard Shuttle into the service delivery of shuttle mediation to our clients.

What follows is, hopefully, a helpful and practical explanation, of what is now affectionately known at the Wagga Wagga FRC as the ‘whiteboard shuffle’.

Why Shuttle?

A reflection on some reasons why we may decide to conduct the mediation via shuttle.

• High conflict – discussion degenerates into fighting • Domestic violence – fear of intimidation, power imbalance • High levels of emotion – triggered in presence of other party • Court orders – preventing parties being together

Remember that shuttle mediation is not shuttle negotiation. Negotiation is one stage or phase in mediation and it is not uncommon for such negotiation to take place by shuttle with the parties in separate rooms. In some cases negotiation proceeds after private sessions by way of shuttle and it is usually the aim of the mediator to bring the parties back together.

2 | P a g e

In shuttle mediation the process is set up and conducted with the intention that there is never direct contact between the parties.

Although increasingly participants are asking for ‘shuttle’ the final decision around conducting any mediation, shuttle or otherwise is the mediator’s call. In some cases the determination is that mediation would not be appropriate and we decide that in consultation. We also have a policy of conducting shuttle mediations as co-mediations. We find in these complex high conflict situations that two heads are always better than one.

What is traditional shuttle mediation?

After prior assessment and screening of both parties, a joint session is arranged so the parties do not come into contact with each other. This involves two separate rooms, out of sight and hearing of each other, often with staggered arrival and departure times. After an introductory period with each party to explain processes and sign documents, the mediator travels or “shuttles” between the two rooms, usually with a pad in hand, taking messages back and forth and operating two whiteboards with the same content written thereon; moving a portable whiteboard, or using printouts to take to each party. There is also an option not to use a whiteboard, just the message pad.

There are many variations, but both Charlton and Dewdney1 and Fisher and Brandon2 give good examples of the procedure.

The mediator tries to remain ‘faithful’ to the facilitative mediation model, covering mediator’s opening statements, parties opening statements, agenda setting, exploration and clarification, option generation and evaluation, negotiation and agreement.

Note the absence of private sessions, because in one sense the whole process looks like serial private sessions – and therein lies part of the problem.

Charlton and Dewdney comment:

‘More often than not the focus is on the substantiative issues because of the limitations of the forum. Communication is often reduced to the bare bones, because there is not the possibility of it really being fleshed out. The main focus is on outcomes rather than the past. In the role of communication agent the mediator needs to be quite clear on what is permitted to be conveyed and what is not, because the session becomes a mix of non-confidential information that would normally be shared in joint session and the usual private session confidential disclosures’.3

1 Charlton R & Dewdney M, The Mediators Handbook (2nd Ed., Lawbook Co. Pyrmont NSW 2004) p 171 2 Fisher L & Brandon M, Mediating with Families (2nd Ed., Lawbook Co. Thomson Reuters Pyrmont NSW 2009) pp242 -243 3 Charlton & Dewdney p 171

3 | P a g e

Potential problems in traditional shuttle mediation.

a) As the mediator is the ‘messenger’, the mediator ‘gets shot’. This may be due to a number of reasons, such as:

(i) Despite the careful use of third person language, the party perceives the message as the view or position of the mediator, not of the other party.

(ii) The mediator may be perceived as biased when exploring pros and cons of the other party’s statement.

(iii) Mediators may later be treated as a ‘scapegoat’ when participants later say they did not say something they specifically asked the mediator to convey.

(iv) The mediator does not convey the message to the party’s satisfaction. (v) The mediator unwittingly conveys messages which are manipulative, in bad faith, or

coded; e.g. a mediator was asked to deliver flowers to the other party at the beginning of one shuttle session!

(vi) There is a danger of miscommunication when reframing to eliminate toxicity by removing or inadvertently misrepresenting important emotional content – the message may become ‘meaningless’, and something may get lost in the translation.

(vii) The mediator is under constant pressure to ensure that confidential content is being omitted from the message.

b) Parties spend long periods in one room on their own getting bored, restless and at risk of ‘wandering’ e.g. one client set off the alarm, another kept a score sheet, marking down each minute elapsing while they were on their own.

c) Often one party hoped to be in the same room, and their disappointment can continue to infect the process, e.g. “It would be so much easier if they just stopped being ridiculous and came in and sat here with us!”

d) The mediator distracts from the communication and becomes the focus, having to negotiate for each party – the parties are unable to challenge each other, express emotions, negotiate directly, or have a sense of ownership of the process.

e) The negotiation phase of the facilitative mediation model tends to happen from the start and positional bargaining soon follows.

f) It takes more time. The important phases of joint exploration of issues & options in direct discussion are often abandoned or severely compromised with the pressure to achieve timely outcomes.

g) A party uses the continuous ‘private session’ aspect to try and convince the mediator, justify their position, get the mediator to take sides, criticise other proposals, and argue with the mediator.

4 | P a g e

The Whiteboard Shuttle

What does this process look like? More like a dance, say the ‘Hokey Pokey’, than the ‘to and fro’ of traditional shuttle.

Preparation: Would include intake, screening &, assessment, pre-mediation education (with coaching or counselling referrals if appropriate) and paperwork obligations. This would occur for each party prior to the joint session, during which time the mediator would assess the need for a shuttle process.

The set up: Three rooms are required. The mediation room has the whiteboard and is the room where the communication, conversation, negotiation, and action will take place – it is a common, shared, neutral space. Each party is allocated a separate room and will take it in turns to go in and out of the mediation room.

That is, the parties shuttle in and out of the mediation room rather than the mediators shuttling between rooms.

Parties are allocated a seat at the table in order to facilitate the discussion and avoid the transference4 that can occur when the mediator sits across from the participant and conveys the other party’s statements.

Scenario

Assume that Oscar and Lucinda have presented for FDR to develop a parenting arrangement for their six year old daughter Bella – they have been separated for nine months. Bella spends time with Oscar each second weekend from Saturday morning to Sunday evening. Oscar is seeking more time. Lucinda has concerns about Oscar’s parenting skills and tension at changeovers.

Introduction: Each party in turn spends time with the mediators in the mediation room to cover preliminary mediation opening statements emphasising the process & timing.

The mediator would explain the process in a straightforward way for example;

“As you know Lucy this has been set up as a ‘shuttle’ mediation so each of you will be in separate rooms and will not come into direct contact with each other. Sometimes in ‘shuttle’ mediation the mediator shuttles between the parties taking messages back and forth. Here at the FRC we use a common mediation room and you and Oscar will take it in turns to move in and out of this room and back to your room. We will assist you to have a conversation with each other through the whiteboard. Over the next two to three hours each of you will spend 10 to 15 minutes at a time with us framing that conversation on the whiteboard. As you map through that conversation we will note any areas of agreement you reach on the issues you discuss today. We will not without your specific permission communicate anything to Oscar beyond that which is written on the whiteboard. Any questions before we begin?”

4 Transference occurs when a person takes the perceptions and expectations of one person and projects them onto another person: http://changingminds.org/disciplines/psychoanalysis/concepts/transference.htm

5 | P a g e

The mediators would then obtain the party’s opening statement, provide feedback and identify that party’s issues for discussion

The mediator might ask:

“What is important for you to cover in today’s session?”

“What are you hoping for as an outcome from today?”

Mapping the conversation

The first task is to establish the matters for discussion - the agenda. Oscar states “I want 50/50”. After some discussion the following reframe appears on the board.

Oscar; “I would like to talk about the time Bella spends with me I think both of us are ready to increase this time. I’d also like to discuss changeovers and how we can communicate better.”

This is Oscar putting up his agenda items for discussion. The message is in first person, tentative, suggestive and in the party’s own words. The matters for discussion are depicted broadly, of few words, and as mutual and neutral as possible. The idea is to shift the party from Allan Parker’s5 first position (associated) to check how it would be reading the message in the other party’s shoes in second position (rapport) and hopefully, to third position (disassociated) for a stand-back, objective view of the message.

Lucinda enters the mediation room, and time is given for her to read the whiteboard. The mediator also reads aloud. Lucinda might say “That would be right. He wants equal custody – this is about child support. I’m more concerned about arguing in front of Bella…” etc A discussion takes place formulating a response to Oscar’s suggested agenda & raising matters that Lucinda would like to talk about. The Mediator might put something on the whiteboard like;

Lucinda; “I’m OK discussing your matters. I’d like to have Bella less exposed to our arguments. It is important for Bella to feel safe and comfortable with you. What do you want to start with?”

5 Parker, Allan; The Negotiator’s Toolkit (Peak Performance Development Pty Ltd Double Bay NSW) pp 60-75

6 | P a g e

Oscar’s returns and says, “Let’s go to week about, changeovers on a Friday after school - that would fix arguments at changeovers’

After discussion and coaching and consideration the Mediator might formulate on the whiteboard;

Oscar; “Your issues are ok. How about time? I think Bella could handle equal time but I’m happy to increase gradually. Perhaps we could extend the weekends to after school Friday to start school Monday? Could you please fill me in on the ‘safe and comfortable’ concerns you have?”

Lucinda returns to the mediation room & responds to Oscar’s messages and so on…….until the issues for discussion are covered within the time frame allowed.

Further examples of whiteboard messages might include;

“Bella is very dependent on me. She often doesn’t want to go and returns tired, and complaining about what she eats.”

“I’m aware you that you may have difficulties getting time off work……”

“You might have other ideas or suggestions…what do you think?”

“One suggestion would be to discuss our parenting and exchange parenting information without Bella being around. Telephone? Coffee down town?”

“I agree with your proposal for extended weekends.”

“Can we trial this and review in three months?”

The mediator highlights on the whiteboard matters agreed as the conversation proceeds, and moves the parties through the items for discussion.

The agreement is extracted from the whiteboard and written up for the parties and each in turn is brought into the mediation room to reality check, sign agreement if desired or make an appointment for a further session or review.

The session ends with each party leaving at different times.

7 | P a g e

The Key Elements – what makes the difference?

• The communication is through the whiteboard. The best way to avoid the mediator being the messenger that gets ‘shot’ is to get out of the firing line.

• The conversation takes place directly between the parties in their words in the first person- the mediator doesn’t have to translate.

• The message is not just heard - it is ‘there to see’. • The element of private session can be turned to advantage through reframing, reflecting,

coaching, reality testing, options, introducing new or difficult issues but most of all in drafting and developing the message which is most likely to be ‘heard’ constructively by the other party and reduce the potential for positional bargaining and demands.

• The conversation is suggestive, tentative, questioning, and can be referenced to the different stages of facilitative mediation.

• There is potential for some exploration of issues and parenting options through the whiteboard conversation.

What we have learnt – some tips!

• Having a co-mediator enables us mix the tasks avoiding the perception of alignment with a party.

• The whiteboard can look pretty long, messy and often we have to print it out along the way. • It is important to highlight points of agreement as you go to encourage parties. Both mediators

assist in extracting the agreement as the conversation develops in order to write it up at the end if required.

• Remember that the whiteboard is usually printout/takeaway material and monitor the content accordingly – ensure there is clear understanding by parties before starting the mediation.

• Don’t miss a step (e.g. agenda setting) to save time – it doesn’t. It just causes confusion and party dissatisfaction.

• The physical dynamics are very important. Nominate separate chairs for ‘A’ and ‘B’ and be transparent e.g. “this is your chair, this is Lucinda’s”. Clients have complained that their seat was warm and wanted to change.

• The other party is still ‘present’ in the empty seat in the mediation space – so the mediator sits there at their own risk. Clients have remarked on the lingering smell of aftershave/perfume, which heightened our awareness of possible client reactions to the sight, sound and smell of the person they are in conflict with.

• It is better if the mediators moves to the side or the back of the room and not place themselves between the party and ‘their’ whiteboard conversation. Sometimes this method works well and sometimes a more traditional approach is called for. Some challenges remain in shuttle situation regardless of methodology and these include;

o Awareness of literacy levels e.g. sometimes parties don’t want the notes from the whiteboard read to them.

o Dealing with too many issues at once o Managing time strictly and equitably o Allowing extra time – we add 1 hour o Only giving background information or rationale beyond the whiteboard message with

explicit permission.

8 | P a g e

In conclusion

We continue to develop the ‘Whiteboard Shuttle’ as the desired best practice for shuttle mediations at the Wagga Wagga Family Relationship Centre.

We remain responsive and reflective. As part of our commitment to sharing the learning’s from these sessions we commit to a debriefing process following the session and share our insights into the process at regular supervision and peer supervision sessions.

We welcome the opportunity and enhanced capacity to practice as mediators, rather than being messengers and running the risk of being scapegoated, blamed, being seen as the enemy or being in the firing line.

The model is particularly useful for family dispute resolution for separated parents who need to develop a parenting plan when communication is not working for them. For parents who cannot be in the same room for whatever reason, the whiteboard shuttle method provides a safe starting point for them to negotiate and reflect on their communication skills.

We hope this model of whiteboard shuttle allows parties to experience a conversation and communication style which not only supports continued communication as collaborative parents beyond the joint session but also more sustainable parenting agreement.

References

Charlton R & Dewdney M (2004) The Mediators Handbook – Skills & Strategies for Practitioners 2nd Edition, Lawbook Co. Pyrmont NSW

Fisher L & Brandon M, (2009) Mediating with Families – 2nd Edition – Lawbook Co. Thomson Reuters Pyrmont NSW

Parker Allan, The Negotiator’s Toolkit - a practical Guide to success in the home, office, Factory and Boardroom. – Peak Performance Development Pty Ltd.