Clients with attorneys make for interesting situations in negotiations. Who’s in control? Who’s driving the strategy? Who determines what’s in the “best interest of the client”? Who’s responsible for preparation of client positions?  Who makes the decisions? One answer to the above questions is it depends. It become messy, ambiguous, and downright frustrating when the truth becomes known when a client says “whatever you say” to their attorney. Sometimes that happens because of a lack of sophistication of a client, at other times emotions overcome a client, at other times it is because iffy expectations are not only created but fostered. Of course there are times when a clients view of “whatever you say” is the right response because this forces the other side to either capitulate or make further concessions. For a mediator this makes for difficult choices and even judgments.

For example in an agreement requiring ADR the first step is mediation involving somewhat complex legal issues boils down to money. The complaining attorney and their client comes in without a figure because they have “not yet done enough discovery”. Why agree to mediation? Time is taken to compute a figure. The calculation is flawed. Changes are made to underlying assumptions to get the number to the same figure. The number becomes an unwavering position and the range between the money asked for, versus offered, and is too much of a gap to bridge between the parties. Impasse is reached and what’s heard from the client is, “whatever you say”.

Best interest of the client? The legal issues involved are overwhelming for the client to understand, but money on the table versus the time and cost of going forward? You almost know the issue will be settled on the court house steps. Happy Thanksgiving! Of course this is the perfect place for “it depends”. Mediator strategies in situations like this are part of an art in closing a deal but not every mediator can do that. Mediation gives clients choice and it's up to them to utilize it or give it up.

The objective of this blog entry is to share with colleagues and the public some views on mediators and “judgments” they make in facilitative (where the mediator serves as the conduit towards agreement by basically controlling only the process and limits substance to such means as for example reality testing or mediator suggestions) mediations.

What kind of role does a mediators judgment have in moving to resolution or to impasse? Wait a minute mediators are not supposed to make judgments are they? First, let me clarify that I don’t mean the type of judgment rendered by a judge nor a statement asserting a mediators opinion. The judgment I’m discussing is more subtle. It could be as seemingly innocuous as calling a break or separating the parties into separate caucuses. Or it could be a decision to move the process towards closing in on an agreement. Mediators do make these and other judgments which have significant if not profound impacts on reaching resolution or resulting in impasse.

In a Teen Conflict episode for Hawaii Community Television our actors recount a mediation in which the aggressor basically slaps another teen who does not respond, not realizing the other teen had a medical predicament. Much later the aggressors guardian asks for mediation because her teen is getting egged on to finish the fight. During opening statements the aggressors parent states a desire to settle this matter peacefully. The victims parents reveal just how deadly another assault could be. The mediator then asks to speak separately to the teens because in his judgment the path to agreement was clear. He is somewhat assertive on the path forward. Possible results were:

·         Agreement by the teens to declare their conflict over

·         Say no

I’m not going to reveal the results of our story as the primary purpose is to provide an example of a judgment mediators make. In this case the mediator makes a judgment the teens are going to agree to declare their conflict over.

Mediators often summarize, reflect (repeat back not only the words but the emotions), reframing (restate what a party has said but hopefully simplifying what has been stated or perhaps without the emotion) or provide a problem statement (party A’s issues are and needs ____ to resolve, while party B’s issues are …) mediators get involved in making judgments about what they sense is a direction, status, timing of, or potential resolution to a conflict. As every case is different, in another teen conflict the mediator made a judgment parents only really wanted mediation as forum with the mediator to basically just be there as they resolve their issues in direct conversation, which turned out to be the right judgment despite some early posturing which looked like it might result in a physical confrontation. And, as one of my panel members points out in this episode mediators do overstep their roles and engage in conflict behaviors themselves.

Understanding not only the situation but the people themselves in a conflict is a key skill mediators must develop and nurture.

Educating, promoting and demonstrating conflict resolution
is a key component of any marketing strategy for those of us
who want to promote choice and the means by which to avoid costly and very time
consuming litigation. The model my colleagues and I have
chosen is to do so through is video. So, what are we doing
and how are we doing?
Our outlet is Hawaii Community Television. In Hawaii we are
fortunate enough to have access to production and equipment
facilities to produce our series so long as we are working
under the auspices of a non-profit. Fortunately we have our
local chapter of ACR and the Mediaiton Center of the
Pacific, Inc.  Our ability to produce would be impossible
without volunteers, who although they have day jobs also
find the time to participate in our episodes. Our format is
a vignette, a story, with volunteer actors playing the roles
of people finding themsleves in conflict as well as the
professional mediators, facilitators, negotiators acting as
third party intermediaries. Scripts are submitted and
suplemented with a bit of drama and entertainment augmented
by the improvisation of the actors themsleves. Our panel
consist of professionals in their field- attorneys,
mediators, facilitators, human resource personnel. The
enthusiasm of the volunteers is contagious and keeps me as
the producer and panel moderator going.  Most of the video
filming and editing is night work and the learning curve is
fairly steep.  In addition we’re working on a web page to
provide supplemental information on what we’re doing and
to give due recognition to our volunteers as we can’t do
very much of that in the videos.
We all learn from each episode and each other. One thing you
find out is to be patient and perseverant.  The inspiration
comes from the  potential audience which can be reached
through this outreach mechanism. We don’t do a how to but
we do touch upon a lot of issues thorugh the opinions
provided by the panel members which are of course, strictly
their own. We hope we can sustain this effort by being on at
the same time each week.  We run one episode each month. In
November the episode deals with voluntary mediation using a
teen conflict as the basis. In December Olelo will run
mandatory mediation and competitive or distributive
negotiation in small claims court. In January facilitation
is highlighted through a story about a facilitation on a
communjity issue. In Fevbruary we turn to the corporate
enviornment and launch a discussion about a workplace team
finding itself in chaotic conflict and we start a
disscussion about resolution.  We are producing an episode
about a disability claim in mediation and more scripts are
in the works for later next year.
We always welcome feedback so if you have ideas or want
to share what is available to inform, promote, and
demonstrate choice in dealing with conlfict please don’t
hesitate to send us your inputs. Mahalo and aloha from
paradise

For those of you with access to Hawaii's Community Television Olelo here's the schedule for the first two episodes of our series:

  11/7/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Voluntary Mediation Team Con, Episode 1

   11/14/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Voluntary Mediation Team Con, Episode 1

   11/21/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Voluntary Mediation Team Con, Episode 1

   11/28/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Voluntary Mediation Team Con, Episode 1

    12/5/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Mandatory Mediation Small Cl, Episode 2

   12/12/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Mandatory Mediation Small Cl, Episode 2

   12/19/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Mandatory Mediation Small Cl, Episode 2

   12/26/09      7:30 pm  Sat      TEAC          Avoiding, Preventing, Resolving Conflict: Mandatory Mediation Small Cl, Episode 2

For those without access to the channel we'll provide directions for access after the episodes stop running and are made available in the archives.

Mahalo and feedback always welcome.

As my volunteers and I progress in creating videos for Community television in Hawaii on avoiding, preventing, resolving conflict using peaceful means I continue to learn. In our latest panel discussion the clear benefit of mediation and facilitation was yet again highlighted – choice.  As the scope of choice develops in our series the element of choice is being examined in the context of WorkTeams. Organizations of all sizes use WorkTeams for a variety of projects both internally and in concert with outsiders like contractors in an owner-contractor relationship. We created a vignette highlighting a variety of disputes, work as well as personal related, and our panel members started to home in on choice between a conflict or resolution environment. In our vignette the WorkTeam operated in a conflict environment. However, if they had or would take the proper steps they could operate in a resolution environment. This moved to the topic of creation of either environment. In our vignette the WorkTeam operated in a conflict environment as they did not have the personal skills nor the processes to deal with conflict. The panel pointed out that in order for the environment to be a resolution environment both processes and skills in such areas as mediation and facilitation were required. In addition an understanding of how each member of a team is going to have to interact is necessary along with ground rules. Senior management support for a resolution environment is critical.

We use a simple example in our vignette. The WorkTeam has a conflict between technical personnel and QA in document review and approval. They are in conflict as members of the team play out power roles – QA using its power to require changes or refuse to approve, technical personnel attacking the Team Leader for not challenging QA – and individuals attacking each other for personal reasons. Were they operating in a resolution environment they would be stepping in to address the issues by committing to resolution of the document problems in a collaborative manner.

In the conflict environment it will probably take senior management intervention (forcing the team to give up choice) to force a resolution while in a collaborative and resolution based environment the team can continue to maintain choice. Part of the resolution environment clearly takes the skills inherent to win-win negotiations as well as those of a mediator or facilitator.

People who perceive themselves as victims, often a Plaintiff, are sometimes perceived as wanting nothing more than money in compensation for their emotional pain. So sometimes it is natural to turn very quickly to the money. Then when they are pressed to announce the sums they want opponents are totally surprised by what they consider impossible demands. Had they been heard and sensed empathy from the other side they may be more flexible. In the meantime opponents may have already seeded a perception on the part of a victim the opponent just doesn’t care. Things deteriorate from there and impasse ensues and emotions are further inflamed. On the other hand in some cases it is about the money and if an opponent caves they feel like they have been taken for a ride. This happens with manipulative victims feigning a greater hurt for the purpose of gaining negotiating leverage.

In such cases it is difficult to judge which side a victim occupies. Where there are artificial boundaries, such as time limits on a mediation session, a victim wanting to be heard doesn’t get enough air time and can get lost towards resolution. Where there is time, how much is enough. Sometimes statements of pain and hurt become repetitious and the monologue becomes accusative and increasingly negative sparking the ire of an opponent who might have been otherwise sympathetic in what was initially being conveyed.

If a victim is trying to manipulate the other side into sympathy and succeeds by getting a sympathetic response then spurns an offer because they sense blood that’s no good either.

For a mediator these situations present a challenge because reading it wrong and acting on such impulses harms or dooms a mediation.  However reading it right can quickly facilitate movement towards resolution. Recognizing where a victim is coming from and where an opponent is leaning may take some probing and that’s an area where separate sessions have significant utility. A mediator can ask questions of the victim in private session which will be answered very differently than when posed in joint session.  Likewise with an opponent. The manipulative parties are more difficult to deal with because even in private session they can feign pretty well and be quite convincing of their emotional state. One possibility is the use of reality testing to ascertain how far a manipulative victim or unmovable opponent are willing to go on the “I must be heard side”.

Most mediators are not trained psychologists but with enough experience we can become quite discerning and provide our clients with a “neutral” view of what they want to accomplish and what it is they want as a resolution in an environment of choice and maintaining the right of decision which is what differentiates mediation from litigation or arbitration.

Most of us spend at least, if not more, time at work then we do at home. The people we work with come from different backgrounds, have worries, and issues some of which they cannot leave at home. They come into the workplace. They bring their personalities into the workplace. Sometimes these issues spill into work tasks, activities, and relationships. Some of the issues are very private. At times organizations attempt to indicate such issues don’t belong in the workplace. At times supervisors, managers, and a variety of HR and legal professionals are tasked or asked to get involved in resolution.

But as many of you know organizational personnel just cannot spend the time necessary to deal with subtle issues and of course the push is towards resolution and sometimes to actions like warning, reassigning, or even firing people increasing turnover. Employees do have some recourse when treatment crosses the line and becomes discrimination. You probably also know the success rate on these claims and the consequences to the relationship with the organization.

So what is the organization and it’s personnel supposed to do? As people are people disagreements in organizations will not be eliminated. In fact such disagreements can and do lead to very productive outcomes when they are handled in a positive manner. Very few of us can leave outside issues from manifesting themselves in the work environment.  It could be a family problem, a dispute with the tax collector, a home remodeling job going wrong, even the dreaded barking dog next door, a traffic ticket, and issues with coworkers – an encounter on the tennis court at the club, a romantic relationship with a coworker which noone at work knows about is going wrong. One or more of these issues spill over into the workplace, let’s say an angry outburst during a meeting because our hackles are already up over the outside issue or failure to perform a task correctly because of our distraction with the outside issue. It’s too subtle to reveal in the context of the workplace.

Why:

·         It is too private

·         We’re afraid to reveal it because we feel it may stigmatize us

·         We just don’t trust the organization’s assurances of privacy

·         We feel the individual we’re dealing with is a company employee and we just don’t want to reveal what we consider to be so subtle

·         We don’t see the relationship between the outside issue and organizational issue

·         We question the organizational representatives neutrality

·         We already received a reprimand from a supervisor which we feel carries what might be considered as a done deal before we’ve had a chance to even be heard

By necessity an organization does have limits on its depth of involvement with their employees. It has limits on time which can be spent with an employee be it by its supervisors or inside specialists. So what are steps which can be taken by organizations?

We’ll explore those in future blog entries and your views are welcome.

Facilitation and mediation are related yet different. As one observer notes mediation is often about conflict resolution while facilitation is about conflict management. A facilitator controls the process while, the group a facilitator works with, controls the substance. Agreements are commonly the goal in mediation while in facilitation the goal is often to set-up steps which may lead to agreement.

Facilitation is for groups, from large to small, while mediation often engages only parties in conflict. In both there is a need to have the right parties. Facilitation and mediation require third parties to use some of the same skills. Some facilitators are also mediators and even attorneys who are more readily used to advocating and may have a hard time not forming judgments.

Drawing out, listening, reframing, investigating, breaking out into small groups, brainstorming, are some of the shared skills along with looking for common ground, communications skills, showing and fostering respect amongst the participants are other skills.  Use of self deprecating humor often works. If someone needs to look less than brilliant about the subject matter and is, is often another shared characteristic or maybe even skill.

When it comes down to it they are different but often related processes and they often work best with an unrelated to the parties neutral.

So when considering which process to use make sure the objectives are clearly spelled out. And, even though a facilitator may control the process make sure the process being charted is applicable to the situation being addressed and exercise informed choice.

It does not stop to amaze me how many people with no training nor experience in mediation tell me they do it all the time, “it’s just problem solving” they tell me. And, even if they look for one they are amazed a mediator wants to get paid so they can provide the service. One of members of a panel I moderate for a series of videos we are producing reminded me of the history of mediation way back to the time when we were first a rural, then a village, society – the trusted elder who not only had the experience and group wisdom, but also the authority to kind of mediate. In today’s urbanized setting we form relationships with total strangers through contracts and other commitments. We may not know our neighbor until such time as there’s a policeman at the door talking to us about a complaint. We can get into an accident with someone we don’t know and not only that but we have to deal with their insurance company to resolve our claim. In too many situations when we need help we assume we need an advocate for our position plus litigation. Many of us don’t know we have choices we can make.  Those choices include direct negotiations and failing that we can seek out a professional third party who offers both us and our opponent the ability to maintain control of decision making in an environment of mediation.  For simple matters we can go to low cost community based assistance at our volunteer community mediation centers. For more complex or where there are substantial amounts in question opponents need to seek out qualified professionals who do require a fee in order to provide their services.

Either at the community based or fee paid level, we expect professionalism and we seek finality in resolution.  In simple matters and at times it can be as simple as being in the presence of a mediator while at other times we expect a more pro-active approach and even a level of creativity, focus, and drive. No matter how hard driven we are in a mediation opponents do not give up choice to start, continue, resolve, or withdraw. If resolution can’t be reached then opponents can still give up choice and submit themselves to a court system. In mediation opponents can engage and use advocates like attorneys or experts to support their cases. Another factor to consider is timing – courts are jammed – attorneys must support other clients to make a living – and the ever present need for “discovery” – another time consuming and costly process. Then there’s the wrangling over who gets what – objections – motions – rules of evidence, etc. Not that opponents involved in mediation shouldn’t be ever mindful of supporting their positions when necessary with evidence. However, to a large extent mediation is still a negotiation which uses a third party and the thinking process is towards mutual agreement not convincing a judge or jury as to who’s right and who is wrong. Big difference, no? If there’s mutual agreement on resolution do you think the odds are better than an imposed, and potentially resisted judgment, that the agreement will hold?

“Educate and people will come”, that’s what my panel member said. That’s real wisdom. Involved in a conflict? Educate yourself and maintain your ability to choose. Choose mediation.

It’s amazing what you learn in working with colleagues. In doing a video we filmed a teen conflict in which one fact turned the tide in favor almost certainty of resolution. One of the teens was so fragile that one blow could kill her.  During the panel discussion an observation was made that in most cases trust has been broken and the issues behind a dispute are often very subtle with a significant reticence or even total resistance to reveal issues driving a conflict to a mediator. The challenge then is to build trust between a mediator and client in a way which a client is open about subtle issue drivers in conflict. The other element which needs to be leveraged is confidentiality during separate sessions with each of the clients. Mediators are bound by legislation or court rules from disclosing to the other side disclosures made by a party should they ask for the disclosure to be held in confidence with few exceptions like statements of imminent violence.  The challenge for a mediator is to demonstrate trustworthiness and commitment to confidentiality in such a manner as to make a client comfortable. An example of a subtle issue for a client is demonstrated in one of our video vignettes dealing with a car accident. One spouse had taken the other spouses beloved vehicle on an errand and wound up getting into an accident. Because the mediator had built trust and emphasized confidentiality the client revealed that if they couldn’t get money to fix the damage they would be in deep ….. This disclosure certainly helped the mediator understand a driver behind getting a negotiated settlement in mediation rather than take one’s chances in a trial.

Every case has some level of subtlety and many times issue drivers or other issues are not revealed yet impact the path to resolution. Often the more open parties are about issues driving a conflict  the better a mediator can interact with the other side. Openness is  not always achieved and even if a conflict appears to have been resolved there’s a greater chance an agreement will not be lasting.