Avoiding conflict has been derided as one of CEO’s deadliest sins. Well most of us are not CEO’s so my view is that avoiding conflict has significant applications in conflict situations. It’s part of my push towards avoiding, preventing, resolving conflict as an overall objective in human relationships.

Avoiding conflict also has a definition problem in that it can connote ‘flight’ coupled with or, when utilized, being perceived by opponents as being accompanied by ‘fear’. One way of discussing application of avoidance as a significant skill is through an example.

Take two people in a highly emotional conflict where coming into contact with each other has potential for further escalation of conflict. Say one is a pedestrian who has to cross a street in going to his pharmacy for his medicine. The other has to drive down the same street to pick up her daughter after school and has to pass by where pedestrian crosses the street – this street provides the only access to the pick-up point. They have seen each other in better times and pedestrian and driver waved to each other as one passed the other. Now such an encounter can have very different results and consequences. So each considers whether and how to avoid each other as a means of mitigating the possibility of an encounter. Here’s one alternative for each:

·         Pedestrian decides to utilize pharmacy’s phone and mail delivery system for their medicine which has benefits such as regular delivery; as pedestrian is slowed by age and it is a busy street he actually reduces the possibility of being hit by someone.

·         Driver decides to have her child use the school bus which has a social benefit for the child since her best friend also uses the bus and they sit together and chat during the ride.

Now as to perceptions of ‘flight’ accompanied with or perceived by the other as taken due to ‘fear’ – how well do you know your opponent? So what if that perception is taken will it create a negotiating disadvantage? How can you communicate “I’m not afraid of you” without making such communication itself as non-confrontational? What is ‘fear’?

Fear in my context is to consider the probability or the expectation that an encounter of the type exemplified above can result in negative consequences to an already tense situation – it is a positive mitigating step which can result in escalation of conflict – and even though it does not resolve the conflict it has merits.

As you can see in the scenario above – they are in conflict – however their conflict is not over their status of pedestrian and driver – it is just an additional potential “escalator” of conflict – their alternatives are meant to defuse tension. Opponents may perceive each others avoidance action in a negative light – ‘flight’ driven by ‘fear’ – that’s a risk but in my example it’s a step taken in mitigation of further escalation and it has additional benefits which the avoidance action taker perceives as creating benefits. As to communicating what is being done – there’s always the ‘action taken in good faith’ approach – and the means can be as ‘actions are stronger than words’ or by the offering of a communication verbally, through a third party or in writing, in terms which make the action an offering in good faith until the underlying conflict is resolved.

In conclusion it w seems to me that “avoiding conflict” has been maligned in a way that is too absolute while the reality is that properly applied and communicated it is a significant mitigating action when skillfully applied in conflict situations.

Do you know someone or perhaps you yourself have been thrown under the bus by a spouse, organization, employer or perhaps you’ve been the one who has thrown someone under the bus. If you been involved in any of the above scenarios you know the experience isn’t a pleasant one. It can be a frightening experience and generate huge emotional feelings – a sense of helplessness and can put a person at a huge disadvantage. Quick and decisive action is required before isolation results in irretrievable harm! A third party can serve as a conduit to mitigate damage. 

In an organization the term “thrown under the bus” is used in describing actions by an organization in response when one of their members runs into trouble they are put on administrative (paid or unpaid) leave until such time as their troubles are resolved.  As an example, using a criminal accusations, imagine you go to a foreign country - an accusation is made, credible enough, in the authorities view, to arrest, charge, detain, set bail, and after it is posted they take away your passport so you can’t leave. From that point until, after many months you go to trial and you are exonerated you don’t get any support from your parent organization. This is an example of being thrown under the bus – somewhat extreme but actually happens.

So reduce this to any conflict where people are basically left to their own resources, shunned by  colleagues (or in the example above assumed innocent but treated as at least suspect and to be avoided or guilty). Strangely enough this seems like a natural human trait. If you find yourself in this kind of situation and you need support you have to find it – without support you can really flounder. In the civil arena an example is in divorce where while you were together your social circle is based upon your spouses circle of relatives and friends – you’re no longer part of the family – kids take sides – it’s your fault. In an organization if your social circle is your fellow employees and they shun or ostracize you – you’re going to feel isolated, embarrassed, humiliated, or worse.  Of course if in the criminal case above you’re in a foreign location you’re really on your own – finding support can be extremely difficult. In fact accusers and even authorities may count on the fact that you can’t wait out delays or find adequate counsel and they will prevail – of course you might in fact be guilty so this is not to say we need to overdramatize these situations.

However, returning to the main point of this blog is to first highlight the need for action by people who have been thrown under the bus to find support and then follow that up with the need to find a path to resolution as quickly as possible – and mediation is one of those paths – if you are in a judicial process don’t wait until it’s court ordered – explore it – push for it – and make it work for you. Unfortunately if it’s a criminal case you may be limited to plea bargaining without involvement by mediators but in selected types of cases hopefully this will change.

However before finishing this let’s discuss what we can do to avoid and prevent being “thrown under the bus”? Look this term up using a search engine and there’s lots of good material on the subject.

In terms of proactively resolving issues associated from having been thrown under the bus  - look to the source  - who’s done the deed – your parent organization – you are not powerless – mediation might help because you may have a compelling argument why an organization should not do that – a negotiating position around which you can at least mitigate the damage.  For example organizations may feel they have authority to cut off your pay while the issue is being resolved – maybe so maybe not. If someone is actively working to cut off your ability to communicate with your now compromised circle of support you may be able to point out risks involved to them in actively pursuing such a course of action – in divorce take the issue of the kids – you may be able to negotiate how to keep the communications evenly balanced and in the best interest of the kids. You may not be able to do this directly and that’s where a third party mediator may serve as a conduit, a facilitator, provide a process through which you may be able to mitigate being isolated, without support. And why wouldn’t this work in terms of money as well? It can, should, do it. It may not resolve the issue you are facing but you’re not powerless and if you’re the one who is doing the throwing you might want to listen because for an employer for example, this may preclude post issue resolution claims for damages because a person was thrown under the bus. Having just gone through a case in which an individual was thrown under the bus I can tell you the price a person pays when this happens to them is severe.

Manipulation can be defined as shrewd or devious management, especially for one's own advantage.

(http://www.thefreedictionary.com/manipulation).

Having just gone through the unmasking of a manipulation by an individual in an organization the experience has been shocking and un-nerving – how could organization have missed the warning signs over several years and why did it take a third party from outside this organization to reveal the ill intent behind an accusation by another person?

Manipulation can be insidious because a manipulative person can present themselves as seemingly and totally dedicated to a cause, objective, even a person or persons within organization while pursuing their own agenda. They can divide and conquer by seemingly dealing with the organization while they develop their own channels of communication to divide and conquer – different dialogues based on issues they define on which individuals in an organization do not fully agree – they mine and exploit those differences to seed distrust and control the flow of contrarian information. They can evoke privileges in confidentiality offered by an organization and ones of their own creation. They can exploit “good faith” beliefs that they, manipulator, are the real guardians of an organizations best interests.

On the receiving end people are willing to accept, to the point of rationalization, a manipulators eccentricities, odd behaviors, even inconsistencies, or even violations because they are led to believe manipulator is acting in “good faith” or in their and organizations best interests. In essence they accept living with the mirage created by manipulator.

The problem with a manipulator existing within an organization is that a situation may arise which we can call “perfect storm” – leading to tragic consequences. A trap, either by design or by accident, is set involving someone within or somehow attached to organization, is sprung which creates harm or even destruction of an organization. Take an accusation  - which if true – can be a criminal act involving outside authority. An articulate manipulator can create a believable fiction which too often is left unmasked and accusation holds  - guilty as charged.

An organizations and even individuals first reaction can be to believe the manipulator who now enters into the divide and conquer routine controlling communications in the organization and with the authorities assuming the accused will not have the resources to defend themselves. In addition organization takes the position the accused needs to go on administrative leave and defend himself. Should that be true there is a high likelihood the accused will either plead to a lesser charge or lose at trial.

So how does a manipulator get unmasked. In this case a third party stepped in who manipulator did not foresee entered into the case and zealously conducted discovery which, over time, began to discover deceptions by manipulator and by the time the case came to trial became an avalanche – no crime was committed and moreover the whole set of accusations were fabricated for purposes of self-interest.

Correspondingly jury, by its verdict exonerated the accused.

From this case one lesson learned is that manipulators are shrewd, clever, and mask their deceptions so well they can be in a relationship, even leadership position, for long periods of time. However, make no mistake about it – should this not be understood – they will find their version of a perfect storm – spring their trap and cause harm – sometimes irreparable harm. Organizations are particularly vulnerable because a manipulator will find sensitive areas ripe for exploitative.  Manipulators are patient – they will continue to look for and exploit relationships to foster their own agenda’s. Manipulators can be very pleasant, and sometimes overly so, in their relationships within an organization. Manipulators know how to work the system in which they are plying their deceptions. They may even ensnare people in pursuing their agenda by creating potential compromising situations with individuals which makes the recipient of manipulators  confidential information reluctant to expose manipulators wrong doing.

So, I’ll end by saying that in the above case manipulator was inside an organization, however manipulators can also work on one-on-one relationships – using many of the same techniques and in the end causing harm to their counterpart be it a partner, spouse, brother, sister, or child. Working alone they are often difficult to unmask or even realize they are manipulators – we rationalize, accept what should be inexcusable behavior, and suffer the consequences.

An uninvolved third party may be the best if not only way to unmask manipulator and in mediation, professionals need to be alert to the presence and use of manipulation, be it tactical (e.g faked emotions) or strategic (cozying up to mediator), as well as not being manipulative themselves (because I think this is the best alternative I’m going to lead the discussion towards that alternative). However, I’ll tell you what, it isn’t easy as there is no end to the skills some people have in being manipulative.

The criminal justice system pits state against a defendant with one likely remedy being jail time. To attain justice, in this sense, takes time and resources which a state may not have to dedicate to a particular case all along the process. As a result a case may not get the ‘vetting’ it needs to determine whether or not it should be charged, what should be charged, and who should be the necessary witnesses in a case and so prosecutors act on incomplete evidence and utilize the process in a flawed manner. In each case prosecutors have to take into account many factors and when the situation is ‘grey’ they may, and do, make mistakes – public safety is not safeguarded, matching evidence with the burden of proof is not attined, adverse impact not only on a victim but also on defendant, extended time frames are involved, etc. Often a victim of an alleged crime does not realize the burden they will have to carry until they come to the day they are appearing in court many months, sometimes years later. Often a defendant is immediately treated as guilty from the time they are interviewed by police until trial – a presumption of innocence until proven guilty does not mean prosecutors have to treat the defendant as innocent and can be abusive. Where does this all come to the tipping point – when the trial starts and it fully blooms when a verdict is reached by a jury. The results of plea bargains are often totally unsatisfactory. My contention is that in at least some cases during the process between interview and trial there are opportunities for just solutions in a well thought out state sponsored and administered mediation program. Why?

As well intentioned as the state may be it must keep in mind that one of its goals is seeking justice – not just seeking convictions through a scorched earth policy to take advantage of a victim or ravage the defense which results in embarrassment at trial or worse yet wrongful convictions. Given the overburdened state of the prosecutors office, cluttered courts, and overflowing prisons – not even considering the costs involved in relentlessly prosecuting every case – it just can’t be done concomitantly with seeking justice.

As an opening step it might be prudent to at least consider whether there are circumstances wherein justice can be achieved by defendant and victim through an intercession by a third party utilizing a specific process which safeguards the criminal justice system and public safety while avoiding manipulation by clever criminals or unscrupulous claimants. There has to be a better way to achieve just results then what we too often get by a flawed criminal justice system and overzealous advocacy.

Conflict in Tombstone 1880 - 1883

If your American or a Wild West history buff you know about the “gunfight at the OK coral”. Have you ever tried to think about what lessons learned there may be from that incident? Well I’ve begun researching Tombstone during that period and I’m hooked by the people, the circumstances, and what could have been done to avoid, prevent, and resolve conflict. Fortunately Wikipedia and a lot of internet resources provide volumes of information – some consistent, some inconsistent, and others incoherent. So drawing out lessons learned is no easy task.

I’ve started by looking at a fairly long article in Wikipedia which tries to provide details about various aspects of the gunfight and serves as a jumping off point for other research terms to use when using search engines. “Ok, ok enough on approach tell me something about what you’ve learned?

Well Tombstone is one of a series of “boomtowns” related to various mineral strikes which attracted opportunists with various interests somewhat tied together to one objective – make money – some through mining – others by extracting money from the miners – while still others by stealing from the former two stakeholders. There was also a class of opportunists who shifted or were either accused or actually shifted between the three interests.

Thrown into the middle of all of this was “law enforcement”- the sheriff – who tacitly or actually supported one interest or another. Since gunplay was part of the culture the sheriff, at times served as a mediator – otherwise he’d better be really good and fast with a gun. In this light the most famous moment for mediation occurred just as the showdown at the OK coral was unfolding. The sheriff – John Behan – first approached the “cowboys” to “disarm them”. They insisted that before they gave up their guns their opponents – the Earps – be disarmed. Behan met the Earps as they were proceeding to the site and they ignored him. Mediation? Whatever it was – he failed and shortly thereafter and in a 30 second or so period 3 men died and several were wounded – and it wasn’t the end of the dispute as there were assassinations or murders – depending on who you believe which followed. The law was, in some cases used as a basis for vigilante action, while in others it continued to fail in ending the disputes. In the meantime the silver gave out and the town – which had grown from several hundred to somewhere around 20,000 people – dwindled in importance and today is a tourist attraction with a population of under 2,000.

Where do I go from here?  I’m trying to get a better understanding of the people and I started with  the Earps, Clantons, McLaury’s, Behan, and other notables in the gunfight but the search is broadening into some of the other opportunists who came to and participated in the issues of the 3 year boomtown period in Tombstone and I’m finding many moved off to other gold or silver driven boomtowns. I’m finding that they viewed their interests in boomtowns were significantly different than that of the protagonists in the gunfight. So, I’m looking at the silver driven boomtown period of Tombstone as a project and gain an understanding of what they tried to do to avoid, prevent, and resolve conflict and why they failed. In November I’m going to use Tombstone 1880- 1883 and casting it as a “project”. My audience will be Project Managers in construction and my hope is they can use our session to derive lessons learned focused on avoiding, preventing and resolving conflict – projects often bring people and organizations they don’t know together. In some projects chaos might be 30 seconds away unless they have the skills and proactive approach to avoid, prevent, resolve conflict - not just from an interpersonal perspective but to have a broader awareness of the components and attributes they must understand when managing projects. It’s going to be a wild ride and we’re planning on informing, educating, and promoting peaceful resolution of conflict in an entertaining way.

All of us have or have had issues with neighbors (there’s always exceptions). The challenge is keeping disagreements from growing into conflict, resulting in dispute, with requests for Temporary Restraining Orders (TRO’s). Can we avoid, prevent, resolve conflict with our neighbors? I wish I had an answer  because what I usually encounter in mediations are neighbors in dispute – police have been called and responded and/or one party or both asking for a restraining order. So, what occurs in what are usually court ordered mediations (I’ve written about neighbor-neighbor disputes before. Once again it’s one of those topics which warrant repeating).

Trust has been broken. Emotions are high. Anger, pain, and in many cases denial are present in one and perhaps both parties. They sometimes ask to participate in mediation in separate sessions - complicating the process. Both may have asked for a restraining order in kind of a tit for tat response.  If one has a temporary restraining order they usually like the “security” it provides while the other is smarting from not having obtained their own restraining order and is in denial – the other person lied to get their restraining order. So the party having the restraining order has little or is totally uninterested in a mediated agreement – other than trying to agree to what would be in a permanent restraining order while the other desperately wants a mediated agreement – “I’ll do anything to get a mediated agreement”, “I can change”. While the other says “there’s been peace since I obtained a TRO – and I don’t trust the other side to abide by a mediated agreement”.

So if one party is not interested – in fact opposed – to a mediated agreement why even try? And If I try – what can I add to overcome the barriers created?

Before going there let’s back up. Most of these cases have a history which may span a considerable amount of time. They may start with something simple – a dispute over a parking spot – too much noise one night – dog barking – being a third party in an already simmering or existing dispute and getting involved or being drawn into such a dispute – even ignoring someone can escalate into a conflict - often there’s a triggering event or tipping point where it boils over into dispute – a physical confrontation – “he tried to run me over with his car”. So timing of an intercession can be critical to preventing conflict from growing into dispute resulting in a request for a TRO.

Somehow catching something early just doesn’t happen. We just don’t know our neighbors very well, and, not only that, there isn’t a strong enough sense of community wherein community intercessors exist, or are recognized, nor is there a process known and practiced within a community. So it should come as no surprise that people in such situations do not turn to a third party and may even view it as embarrassing to go to a mediator where they feel they will bare their souls to a stranger. So, they wait until it gets bad enough that the police get involved. Police aim to keep the peace – which doesn’t resolve conflict – and the police get tired of responding so the next step is getting a restraining order. So perhaps a means has to be established and the public informed and educated for early intercession and promoted as a means of avoiding and preventing conflict that will work in “communities” as defined in current contexts which means neighbor doesn’t know neighbor and there are no recognized community process or intercessors.

So, the police are called. They arrive – they hear both sides story and make decision on how to keep the peace. They separate the parties. They have a procedure they follow. Neighbors see the police. There’s embarrassment  even humiliation. It is probably natural for the party who called the police to get the first word in on what happened. The other party is probably and immediately on the defensive. After several calls one party is hauled off to jail overnight. Then there’s the TRO. The hearing – referral to mandatory mediation. Great – deal with this Mr./Ms. Mediator.

 So – trust is broken. Emotions run high – judgment is lowered.

So – what chance does mediation have in light of the supposed comfort provided by a TRO? What choice do “authorities” have when a TRO is a key element to keeping the peace? Conducting a successful mediation in these cases takes considerable skill – creative thinking – perseverance – getting and keeping parties engaged in a conversation – and creating and maintaining a problem solving momentum – and an “aha” moment where parties can see a better alternative than TRO or denial – it’s not me – and the judge is wrong.

Let’s get specific. A hybrid and contextually based description of trust is - one party having the confidence and/or an assurance there’s commitment on the part of the other to do what is agreed upon. Trust  requires a belief that the person relied upon has the character, ability, strength, and embraces truth – this last one is tough because one or both parties believe there has been lying and deception – with denial - by one or both parties that they are conducting themselves in a way which causes, contributes, and perpetuates conflict.

Struggling with a definition – much less understanding and dealing with broken trust – provides an idea of the magnitude of the task. And, in the case of a TRO trust needs to trump the comfort perceived  from having a TRO against the other party.

So, what does it take to build trust? Compassion? Understanding? A willingness to take risk? Acknowledgment by the other party? An apology? Forgiveness? Getting new information about a situation? Hearing and seeing each other in a changed or new light? Mutuality? Reality testing – having and invoking a TRO will lead to escalation of the conflict or dispute? The legal and physical “barriers” “boundaries” established by a TRO cannot be sustained or even realistic – you see each other in a market and you don’t notice ach other in the same check-out line – your front doors are within the 20 foot limit established by a TRO. You use the same elevator in the same building. You get on a bus and there’s only one seat left and guess who occupies the other one? You’re walking the dog and are crossing the street and the other party is approaching in a vehicle. You live with backyards abutting each other.

A myriad of situations can and do arise which test a TRO – the police – the judiciary.

Neighbor- neighbor conflicts test not only each party but also friends, family, extended family and even unrelated parties who inadvertently get drawn into conflicts. And, don’t forget the kids – at times they become the victims. I can remember my own youth where we kids had a dispute and wound up visibly shunning the parents of a kid and suffering the consequences – parents complaining and being on the long end of reprimand by my own parents. Of course parents in conflict can retaliate against the other sides children or if they both have parents the kids start to fight. Family members can be protective - leading to new and often verbally tense, threatening, and even physical confrontations.

Back to trust. Is it absolutely necessary to reach a mediated agreement. Sometimes clients are willing to take the risk even though they tell you – they don’t think it’s going to work but they are still willing to give it a try – usually not.

When both parties are still willing to talk to each other in the presence of a mediator this creates an opportunity. A mediators interactions with a client can create a window for a party to listen and perhaps learn something new – form some new judgment – making them more receptive towards trusting the other party has what it takes to abide by a mediated agreement.

Creative thinking spurred or provided by a mediator can have an impact. Perhaps parties have thought about a dispute only in terms of a TRO wherein creative thought can create an aha moment during mediation. However, here’s a rub. The person with a TRO is willing to accept creative steps towards resolution but still wants the TRO. Creative thoughts might be unenforceable so the court says - either a TRO or mediated agreement because we cannot enforce your creative agreement. An example of a creativity in a neighbor – neighbor dispute is agreement to meet in the presence of a mediator to discuss their relationship and the issues they face. If one party decides not to come then does this mean the person left high and dry can call the police and haul the person into a meeting with a mediator? Haven’t seen that yet but its creative.

So far all of this has been rather negative. Some times people move for a TRO in order to get the other side to mediate. They succeed and a mediated agreement is reached. Mediation does offer an opportunity for the two sides to present their perspectives on an issue and in doing so common ground is found and resolution is reached. Sometimes a creative approach does identify a new way to think about a dispute and moves parties to agreement. Sometimes when folks get to hear each others perspective in the presence of a third party trust is at least seeded and enough so that both parties move towards resolution and there are aha moments wherein something is said, revealed, exposed which moves parties towards resolution. So, let’s not kid ourselves mediation does have a role in neighbor- neighbor conflicts and disputes – certainly earlier and voluntarily – and even in cases of mandatory mediations successes do occur. However, it would be helpful to do a better job of establishing TRO processes which give mediation a better chance to address the critical issue of trust which is so key to overcoming the comfort and fear perceived through a TRO.

If you’re interested in mediating a conflict you have to understand emotions like pain, anger, denial. Beyond understanding there’s another challenge – what do you do with this understanding when mediating a case. Recently we had a session presented on this topic and I’m in the process of post- production –two or three 30 minute programs for community television. The session was sponsored by ACR Hawaii and given by Lou Chang and Craig Robinson. It was well attended. So what about it?

I want to focus on what to do about it. One common concept of mediation is to focus the parties on the issues and to steer them away from emotions. After hearing this presentation I’m beginning to wonder about that. Why? Because emotions have an impact on judgment – so mediators can be hiding their heads in the sand. On the other hand there is the risk that emotions can be part of a party’s negotiating strategy – play not just on their opponents feelings but also on the mediators.

However, there’s another issue and that is that most mediators are not trained in areas that give us sufficient working knowledge of emotions and that’s why this recent presentation is so valuable. I think mediators and clients have to face the reality that emotions play in relationships, negotiations, mediation, and conflict. The difficulty will be whether or not to continue to work towards steering clients away from emotions to face issues or to find the means and processes by which to steer clients in some manner which take into account emotions. This is not to say that there aren’t already some such means. One is to co-mediate with a counselor – a suggestion made by one of the participants in the session - and we have a term we call “venting” which is meant to allow expressions of emotions into the process.

Perhaps a bottom line in the emotions arena is a recognition that emotions are an intrinsic part of our identity as humans and failing to take emotions into account misses a key component of who we are and how we deal with conflict. As third parties or as clients we have to research this area much more thoroughly to come to an understanding between being totally dispassionate or – on the other end of the spectrum - manipulated by displays of emotion while we’re doing problem solving about a conflict. As an aside I can never forget the incident at court where a party walked in as if in a stupor to elicit the sympathy of the court to get a postponement of their trial and then seen in the parking lot chatting it up with someone they knew who was passing by! On the other hand there’s the client who emotionally says “this is not what I expected from mediation” yet signing “mutual agreement”!

In time we’ll post links on the internet location of the videos on pain, anger, and denial.

I recently videotaped a session sponsored by our ACR HI on pain, anger, denial in which divorce figured significantly. Listening to the discussion stirred considerable thought about mediating divorce cases. These thoughts are shared below.

One of the toughest types of cases for a mediator to claim to be and maintain neutrality is in divorce. According to one speaker who is also a psychologist - in about 80% of the cases one party is ready and looking for divorce while the other is seeking counseling.  So, does a mediator first have to work with the parties to bridge this divide (divorce mediation or counseling) or does he move on to meet the party seeking divorce demand for working on, for example, a parenting plan? Mediators are not usually trained in counseling so there’s a strong likelihood the direction will be toward, in our example, proposing working on a parenting plan. And, it should come as little surprise that the client looking for counseling may agree - “I don’t want a divorce, but since she wants one so much - let’s proceed – I just want to get this over”. Taking this path sounds like a decision made in favor of the party seeking divorce. Since the law allows divorce regardless of how the other party wants to proceed seems to make the path inevitable.

There’s another complicating factor - emotions are known to affect judgment. Divorce is highly emotional with pain, anger, despair being amongst the emotions in play - the higher the emotion, the lower a persons judgment according to our speaker.

Just think about the above and how divorce cases fit into the, almost sacrosanct, concept of mediator neutrality. One answer proffered to deal with such situations is to have a team approach – counselor and mediator – with counselor being a psychologist. Of course the cost to clients will rise, however so may the potential benefits in terms of identifying not only the nature of the clients perspective – mediate or counsel – but also our clients emotional state and judgment. It is questionable whether mediators and counselors and clients will agree to proceed in this manner.

It does not mean mediators cannot handle these cases – just that, clients need to understand what a mediator can and cannot do – which comes in the introductory period of mediators involvement with clients. So what could I, as a mediator do to better serve the needs of my clients when parties have differing expectations from mediation?

In many cases mediator(s) and clients meet for the first time in joint session with time as a factor. Time may limit interaction between mediator and clients on emotions and there may be a tendency to try and keep the parties focused on finding common ground and “problem solving” – what do we do with the kids? Differing interests – divorce versus counseling – coupled with high emotions – visible or repressed – complicate identifying whether or not judgment is impaired. Expressions of emotion may even be steered away from because a mediator urges the parties to focus on the issues dealing with a parenting plan. So these considerations are a challenge. On the other hand emotions can be powerful tools in negotiating and trying to discern whether or not emotions are real or feigned can also be difficult.

Defining mediation and the process mediator uses can also be critical. The clients case can be and often is their first exposure to mediation – and unfortunately a highly emotional experience. We’re not talking about a b reach of contract or fender bender we’re there to discuss very personal issues hitting the heart, soul, and identity of these people – children are often involved – years of living together – betrayal – and so on. Coming across as if it is a breach of contract like case just won’t hack it – sorry. Coming across as insincere can also jeopardize mediators ability to work with these people. The point is that as a mediator we’re getting into the most private lives of people however, we won’t be made privy to most of the issues involved because clients will be carefully considering what they should and should not share in mediation. It’s a difficult balance which needs to be struck in devising one’s explanation to clients in what will be happening in mediation.

Having said that mediator will probably start by having each party introduce their particular perspective on their situation – many times – “I want this and I want that” – e.g. sole custody of the children. Other times they don’t know what they want – maybe because they are the ones who want counseling – not divorce – they re not ready. Ok. Then What? Maybe the case is not ready for mediation.

Reading people is tricky enough – reading their emotions can be tougher – stiff upper lip – tears – poker face – a whole gamut of possibilities – in divorce – two faces- the one they show you and their real face. There can be years of building complications which result in their present state. Divorce mediations are difficult. Clients and mediators have to ensure they understand what mediation and their mediator can and cannot do for them. Otherwise they may come out of mediation with the “this isn’t what I expected from mediation” and agreements reached in desperation rather than in mutual agreement.

I can’t help but be impacted when a news story has to do with teen suicides and other acts of desperation because of conflict between teens in their schools. Over the last several years we produced a video on peer mediation as part of our conflict resolution day observance, attended a conference with teen mediators, and mediated a number of  teen conflict cases.  If there is one topic that’s worthwhile repeating year in and year out it is this one – avoiding, preventing, resolving conflict amongst our teens.

Teens face significant risk of negative exposure of themselves - physical and virtual - by themselves and by others both within school and community. In too many cases adult support comes from an overtaxed and  struggling single parent or guardian. Too many are fought over or used as weapons in divorce wars. In some cases teachers in schools represent the only positive mature influence in a teens life and at times even this is less than caring.

 Social media brings “gossip” and maliciousness to new levels – with negative comments having the potential of going viral. Drugs are ever present, available, used. Sexual promiscuity is looked at as a rite of passage – of belonging.  Isolation, ostracism, and violence is an ever present danger, threat, or reality.

Teens vary in their emotional state, capacity, and temperament – however all too often they mask their emotional state from their parents or guardians.  Typically the last thing they want is to bring their issues into a public forum which can be a damaging and, tragically, sometimes fatal decision – third party involvement utilizing processes within an infrastructure can have a positive impact.

Teens need safe havens!  

Peaceful means of conflict resolution like mediation offer safety through the intercession of a trained third party along with neutrality and confidentiality. However for teens, access or even awareness about mediation and its availability or utility is lacking.  Educating teens about mediation and preparing teens capable of and disposed to become mediators has proven difficult and difficult to sustain. Peer mediation programs require dedication but are often almost totally dependent on volunteerism. Volunteerism is great however there’s always an issue with continuity in resources which results in less training and periodic updates. At best a peer mediator is going to be in a school for 3 or 4 years. Mediation models for these programs have had difficulties keeping up with the times while risks for teens continue to rise.

Let’s look at a hypothetical case. A teen, a young lady,  is single minded in her pursuit in academics but is not perceived as adequately socially minded –– she’s not one of the popular girls – in fact she’s viewed as a “nerd” in a derogatory sense – a teachers pet – too accommodating to authority. She is the subject of not only envy but outright hatred by a peer who has a strong following – strong enough to get her social group to actively “gossip” both in a person to person context as well as through social media and, at times, physically threaten the “nerd”. “Nerd” is strong enough to, at first, ignore and later fight back in her own way against the harassment until the “gossip” has gone viral she faces peers and others snicker in her presence and move away when she approaches taking a seat in the cafeteria. Some fellow students even look for confrontation with her not only in school but also at the “mall”.  Her resolve starts to break down - academics start to suffer. She reduces her participation in class. She looks like she’s not eating or sleeping enough. She starts to get testy – even nasty in her communications with others. Finally a teacher notices and voices her concerns to school authorities on a day when “nerd” has a fight with one of her tormenters. She’s asked to go home – a one bedroom apartment she shares with her single mother who works two jobs and is a recovering alcoholic. Mom comes home and hollers, berates, and even strikes her errant daughter for being sent home. Our nerds whole world turns topsy turvy. She’s on the brink of doing something totally stupid. Where would third party intercession in the form of mediation fit in??

It’s a tough challenge for schools, administrators, and teachers. “Conflict amongst students?  – We (teachers) have enough trouble keeping the peace when the teens are in our classrooms and we have to be concerned about our own safety”. There are questions of legal liability which results in defensive behavior – call security – even though it’s too late at that point. School populations differ in diversity, economic strata of students, and support from communities, parents, and guardians. School administrations differ in defining their priorities and resources.

Too little emphasis is placed on avoiding, preventing and resolving conflict by lack of resolve, commitment, systems, processes, and infrastructure. When considering factors in establishing and maintaining a conflict resolution system the following come to mind:

Assessing a schools environment vis a vis conflict is a must. Assessment comes from a review  past history and learning from it – history repeats itself – conflict history at schools is real, ascertainable, and can be part of lessons learned. Conflict should be talked about – not taboo.  Student, teacher and parent surveys can be utilized as a means of profiling a schools “conflict” environment. Facilitated focus groups can result in further illumination of a schools conflict environment. Once the current situation and history is translated into lessons learned attention should be turned to foreseeability of present and future conflict areas and moved into development of systems, processes, resources, and infrastructure for the risk areas.  If the threat is violence then it is incumbent upon a school to examine how to deal with the threat – security measures yes – but also defining appropriate intercessions to lessen tension through discussion, dialogue, not only in general but also with and between individuals or groups – identifying problems and dealing with the issues as problem solving. Special talents and expertise are required in this area – at a price – but surely it beats having to retrospectively deal with a violent incident where students are injured, property damage, disruption in a schools primary tasks, or worse – and unfortunately violence begets violence. In the case of malicious activity on the internet – students should know where to turn for assistance, what that assistance is, and constantly reinforced and updated. With the addition of new means of interacting risks presented in this arena continue to grow in scope. Again part of it is a question of qualified resources – perhaps amongst the student body itself has ”net nerds” who might be willing to put their knowledge and talents to use in this arena.

Training to raise awareness and to make sure that all know where to turn in times of need should include not just presentations but should put people on both sides of conflict – in being conflict creator as well as victim. It doesn’t have to be graphic or violent and certainly not humiliating or degrading but rather scenarios identified during the conflict environment assessment and/or past history which provide a foundation based on reality at the school – so it isn’t the kind of thing that “it couldn’t happen here”. The point has to be avoidance, prevention, resolution processes and systems.

Dealing with conflict has to provide a safe harbor which includes such considerations as neutrality of third parties, confidentiality of the proceedings, and most importantly support from school administration – agreements reached will be supported within the bounds of policies and procedures. As for peer mediators – they are not all equal in talent, skills, capabilities. Some will be more skilled than others. Their capabilities should be matched to conflict complexities – not just seniority but rather on demonstrated results. All must be shown great appreciation and receive recognition for their contributions.

Schools must also clearly identify and make known what it is they can handle inside their environment and what needs to be deferred to outside resources. Outside resources should include community based mediation centers which are reasonably priced and provide excellent resources. Partnering with a community mediation center should be considered at least to the extent that some peer mediators can observe mediations at the center as means of gaining knowledge.

When it comes to avoiding conflict – monitoring the environment within a school is key. Teachers should be taught to have their antennas up for telltale signs of budding conflict – some are common sense – isolation of a student in a class, derogatory remarks made to a student, unexplained declining performance, and being open to students for social chats, etc. Better to err on the side of caution rather than wait until there’s an incident. Preventing conflict comes from raising awareness about conflict – causes and consequences. Students should know they can refer themselves to mediation or be referred to a discussion about a potential conflict in a confidential manner and with understanding – we’re here to prevent conflict and not just wait until it occurs – punitive actions during these stages should be weighed in terms of benefits/risks/detriment – I would avoid them if possible.

Conflict resolution – well there are models for peer mediation – at community mediation centers and there are mediators who dedicate at least part of their effort towards this area. Some are probably involved in a schools or across schools peer mediation programs.

So why should students be willing to dedicate themselves towards becoming actively engaged in peer mediation? It would be ideal if they receive academic credit for their involvement within some existing curriculum – health – social studies. On top of that if they know there is a progression in their capabilities in dealing with conflict, conduct of negotiations, by having different levels of expertise established within a school this might be an incentive to their sticking with the program – because their growth is acknowledged and recognized. Some might be interested in preparing training programs, conducting the training, observance of mediations conducted at a community mediation center. And of course there are those who participate under a conviction they become better citizens – self satisfaction from participation in peer mediation. As adults we tend to underestimate the capabilities and what teenagers want – we base our assessments on our own models of behavior – teens gripes about it being too hard – some years will be lean while others – too many to handle. Efforts to avoid, prevent, resolve teen conflict in schools have to be sustained – so teachers, parents, guardians, volunteers, and yes – money has to be allocated and spent – but what price do you put on a teenager who does injury to themselves or others because of unresolved conflict? If they are my son or daughter they are priceless and I’m sure that the same is true for you as a caring parent or guardian!

In organizations which have to safeguard security of information there is often a category identified as “need to know”. Well, in mediation confidentiality is stressed to all parties – what is said in mediation stays in mediation – although some courts have chipped away at this notion while in the public policy area this becomes an issue of lack of transparency in the process – but those are issues for separate discussion. The way I look at “need to know” is what do I, as mediator, need to know in order to facilitate a case from conflict or dispute to resolution? And, is knowing too much a handicap?

Understanding a case includes knowing who the parties are, their authority to negotiate and approve an agreement, their relationship, what they hope to accomplish in this mediation, any demands they may have which lay out a position or range, demands for money, relationships amongst parties on the same side of a dispute, time limitations they may have on a mediation session, etc. Understanding also includes each party’s perspective on the facts of the case.

Notice I said perspective. In mediation we don’t operate under “rules of evidence” and we cannot punish a client for perjury. Because of these limitations some people refer to mediation as a “license to lie”. To mitigate against this claim there are certain steps a mediator can take. They include making sure that anything represented as a fact is conveyed in a way that it doesn’t create an impression that I am accepting or rejecting what has been stated as a fact. Sometimes however, a party will tell me something as a fact and request I hold such “fact” as confidential information – I have to abide by this request. I see nothing wrong in asking for verification of something represented as a fact by, for example, asking for verification if there is a reference document in which the fact resides.

In presenting something stated as a “fact” by one side to the other side I explain my definition of “fact” – the others perception of reality– and that I expect each party to judge for themselves whether they will or will not accept such “facts” as true to them.  I use facts to help me narrow issues in a case and to chart a path forward through problem solving. Especially helpful are those facts upon which the parties agree – common ground. Sometimes an exchange of facts creates an “aha moment” because one of the parties actually discovers something they didn’t know before and it’s helpful to them in finding common ground. In other cases an exchange of facts serves as a basis for discussion of other issues which would otherwise be clouded by argumentation – working backwards to –“maybe we ought to look at that contract”. At times people actually choose to ignore what they know or should have known is a “fact”. Introducing “facts” is one form of reality checking.

A review of facts also comes in very useful as a means of identifying relationships between parties whether on the same or opposing sides or somewhere in between. Yes, I’ve had parties who said they are there to help both sides – observers – resources – neutral. Facts can shed light on whether a relationship is black or white or grey. In these situations facts can disclose differences which may exist in interests a specific party – even if they claim to be neutral – is representing and correspondingly reveal different needs. For example take a real estate transaction – a dispute between buyer and seller – dual representation – what do the facts show as to the realtors interests/needs? Facts can build or destroy trust amongst the parties more or less than it was at the outset of a dispute.

However, sometimes delving too deeply into facts can result in overuse or misuse of facts if a case isn’t really about facts at all. It’s a matter of principle, a need for an apology, an ability to vent, be heard, elicit a response. Spending time on exchanging facts in these circumstances masks real needs a party has which have to be discussed a different way – as for example in just saying “sorry for what happened, I could have handled this situation in a different way”. So I have to be careful not to try to use only facts to understand a case and make progress towards resolution. They are a useful tool – a good basis . I just try and remember, it’s a clients perspective of reality and in mediation the judge in accepting or rejecting “facts” is the other side. I am not a judge who can accept or overrule whether or not something presented is a “fact”. However, I do have to understand the case in order to be a useful facilitator to my clients.

When we enter into relationships one thing we grossly underestimate is the inevitability of disagreement – which is so natural to any human relationship – and as a result we pay a price – disagreement grows into conflict and conflict grows into dispute – and relationships are too often broken. The issue is foreseeability (it’s not even included in my spell check program).  That’s not to say we don’t put “stuff” in our contracts – often arbitration – sometimes mediation – and sometimes nothing. Who has time for more? The result in construction – after project complaints – litigation. The same occurs in other relationships even in marriage – economic issues lead to bitter fights during divorce – what percentage of marriages in your environment end in divorce? So, perhaps we should pay more attention to our human condition in relationships. Presently I’m involved with some very smart people in considering foreseeability in a project through a workshop where knowledgeable people can come together at the start of a project and identify potential areas of conflict which may lead to identification of processes and people who can deal with these issues – foreseeability and pre-planning.  Given the scope and scale of the project underway I’m convinced it’s well worth the effort. Why? Because there’s no substitute for putting people into a position where we search the project plan and the relationship for potential issues and come face to face in a non-threatening environment with planning how the project team and affected constituencies – community – can deal with these issues should they arise – come to agreement on the processes and people they will utilize to deal with disagreement. Even more importantly – through this process we will heighten awareness and potentially identify warning signs that help avoid and prevent conflict – and take some of the fear and discomfort in facing brewing conflicts and disputes. Raising awareness about these issues can be accomplished by taking what is learned through a workshop of this nature and supplementing the results with training programs which are directly on point in terms of relevancy– and for me – that of course means role plays and video. The language in a contract – no matter how intricate cannot  foresee every situation and neither can a workshop – however workshops put people into an environment in which they will be working and give them an opportunity to participate and how it feels to be in a problem area thereby better realizing how to deal with them when and if they arise during their project.

Now, I realize that having read this blog entry you may say this is fine but I’m not into construction I’m into the marriage relationship we’re about to enter so this approach doesn’t apply! Try this – a month after we get married we’re pregnant what are we going to do? Or – you want a child I do not – how are we going to deal with that issue should a pregnancy follow? Or – I want to buy a house – you do not – can we reach agreement on how we deal with that? In many case those discussions are avoided and lead to pressures on a marriage that result in conflict, dispute – and unfortunately divorce. These situations are foreseeable and can be dealt with if we have the will to identify the issues and if we cannot deal with them at least agree on how we’ll deal with them should they arise – for example our we agree our economics and the market make it feasible to purchase a home.

Co-mediation means there is more than one mediator involved in a mediation session. Co-mediation is at times used for such purposes as gender balance or to provide a mix of substantive knowledge in the case being mediated, for example complex environmental issues, and process expertise. Co-mediation can be extremely useful or counterproductive depending on such issues as being able to work with the clients and mediators ability to work collaboratively themselves. In the latter case, in a for example parenting situation where the separated or divorcing parents want to actually work on a parenting plan and one of the mediators says “I don’t work on forms” present a dilemma to both his co-mediator and clients. On the positive side co-mediation can and often does bring synergies between co-mediators and clients. For example c-mediators may have contrasting styles, strengths, ability to create rapport and provide necessary emotional support for a specific client when they need it. For example in a workplace dispute a client is recounting their complaint in a very emotional manner. For clients and mediator it is important to understand what the issues are and a complainant may look to and get the emotional support of one of the co-mediators to get through their story and get it – it’s a human condition. On the other hand there may be a very technical issue being brought up and a co-mediator having substantive expertise in this area may prove helpful in reducing or reframing the issue to terms all participants and co-mediator can comprehend. This is particularly useful when “jargon” is utilized.

There are lots of other circumstances where synergies are created when co-mediation is utilized. One that is one of my favorite is when I and my co-mediator are in rhythm with the clients. First my co-mediator then I are in focus and we alternate in our questions, synchronized in our understanding of the case, and have empathy and rapport with our clients. We may be able to provide somewhat divergent views of where common ground lies and we work with the clients to agree on where it is so we can work towards resolution. We may be able to identify and clarify different but equally viable alternatives based on what each of us has heard.

Clients can tell when mediators are in sync and when they are not or are clashing. They don’t appreciate when co-mediators are the source of conflict. Unfortunately some clients look for rifts between co-mediators, some try to create them – manipulate these differences to see if they can get a mediator to move in a certain direction they feel is advantageous. Some clients will even attack one of the mediators – and I’ve written about this in a previous blog.

Of course if clients are paying for mediation services they don’t get two or more for the price of one so the economics have to be considered. Co-mediation requires certain skills – like – being able to get along with a co-mediator – putting away ego – being acceptable to different style – approach – sometimes letting go of an issue I brought up that my co-mediator and the clients don’t feel is important – having the right sense of timing to take or give up leadership of a mediation – kind of an ego thing – and being able to support a co-mediator in difficult situations or to help each other extricate one or the other from something said wrong – an emotional outburst – a misinterpretation. Co-mediation has man, many benefits and has to be one of the considerations not just by clients but also by mediators.

Flash! Just came to my attention today about workplace disputes. As an employee or supervisor do you know your organizations conflict management process? If not I strongly urge you to take the time to find it and understand it. Every employee and supervisor has the potential of a disagreement growing into conflict and turning into a dispute. At the first level of course, we all have to know how to avoid and prevent conflict but that’s not always possible. And, once a disagreement starts down the path of not being resolved we run the risk of losing site the disagreement is between me and my employee/supervisor and now start thinking about it as a conflict with the organization so we’re going to be operating in the realm of the organizations policies for managing conflict. And one way or another we may find ourselves asking or being asked to participate in mediation. Don’t you think it’s better to get there while we’re still employed rather than after having filed a discrimination claim which now moves one step closer to litigation and a totally adversarial environment – in fact we may first have left or been let go by our organization. If that happens then we better know something about mediation and about the types of things we talk about incessantly in this blog  - know what it is – how to use it – how to prepare – how do we set expectations and what’s our best alternative to a negotiated settlement? Does the organization have a process and is it spelled out to the point that there’s actually a mediation process like with the Postal Service? If we need to find a mediator how do we do it? In any case you can find various points about mediation in this blog or other sources. Remember knowledge is power and be prepared. Disagreement is an inherent part of being human and interacting with other humans.

You don’t want to wind up in front of a mediator and know nothing about the process – you are already at a potential disadvantage in your negotiating position on the matter that brought you there.

Have you heard or participated in or led a MedArb? I haven’t and I wonder how participants and mediators involved in these processes fare. For the purposes of my discussion I would define MedArb as a process in which participants and the mediator agree that a mediator becomes an arbitrator when and if parties cannot come to a “mutual agreement” as we do in a normal mediation process.

I wonder how a mediator can devote full attention and work his hardest to find common ground between the parties when he knows that if they do not reach “mutual agreement” he will be able to make the decision? When I mediate I focus all of my attention and efforts on working with the clients to find a path laid upon common ground – something they can all agree upon – no distractions – no deviations – only trap is potential impasse when the parties would go to the next step – arbitration or litigation. I am totally motivated towards that goal and apply my skills and techniques to get them there. And, I don’t give up until we get to either agreement or impasse – in which case I offer them an adage I picked up a couple of years ago “you just haven’t figured out a resolution yet”. They either think about it and come back or defer their decision to an arbitrator or judge.

I also wonder how a mediator turned arbitrator makes a turn from accepting what a client says as their perception of reality to – now I have to try and figure out who’s “facts’ are more compelling than the others in order to make a “decision”? Normally during mediation what clients present as their “facts” are judged for their veracity, relevance, and importance to a negotiated agreement by the other side – not me – “facts” are often critically important in many cases in order for parties to reach mutual agreement. So, either during mediation or when I turn into an arbitrator I have to judge who’s “facts” are the ones that hold more weight, their relevance, and even their truthfulness.

Finally, in mediation I get satisfaction out of the fact that clients are able to reach mutual agreement – the whole concept underlying mediation and I look upon reaching impasse with great disappointment and to me then having to make a decision on behalf of the parties would be salt in an open wound. I believe that’s exactly what clients want – they are there because mediation is a continuance of mediation – they have preserved their right to agree or disagree. And although having their confidence that if they can’t reach agreement – I can make a decision on their behalf – sound alluring I have significant reservations that MedArb is a way to build the field.

Public Policy and mediation – political concerns versus benefit to the public? Is mediation incompatible with public policy conflicts? In the last of our video programs in a series of presentations on public policy and mediation on this issue our speaker related concerns he is aware of by politicians – amongst those highlighted were lawfulness of delegation of authority, inclusiveness or lack thereof, and confidentiality as opposed to openness of public hearings. By its nature mediation proceedings are governed by the “what is said in Vegas stays in Vegas” – meaning robust confidentiality of proceedings. The intent in mediated cases is to encourage the openness of the parties participating in the process. Mediation proceedings are not open to the public – resulting in a fear that key parties can be - or feel they are being excluded. As a result mediation has a hard time working if agreements reached in such proceedings are not supported by the very politicians empowering the use of mediation.

So why use mediation? Many politicos do not or use mediation infrequently despite the many benefits of mediation. However consider when political forces are at loggerheads on an issue it’s because the very process they have utilized is not working – and often the only alternative is to take the issues to a court of law – thereby giving decision making to a third party. There is little creativity in litigated decisions. There is a party or parties on a wining side and similarly there are others on the losing side. Neither party may like decisions made by a judge or arbitrator.

The very confidentiality that is derided may in fact work in favor of the parties because they do open up instead of having to guide their words and actions by “political correctness”. Empowerment of parties involved in mediation may give rise to creative and mutually supported agreements or recommendations. So, although some may decry mediation in public policy areas many conflicts are being resolved through mediation processes. Those of us involved in mediation may lament the lack of consideration given to mediation – confusion with arbitration – but at least mediation, according to our speaker, is no longer confused with meditation – my experience is - well almost. 

As for having the right people around the table - that’s always a challenge even in the every day variety cases in mediation – the right people with authority to decide have to be either present or available in order for an agreement to be meaningful, valid, and lasting. So, let’s not kid ourselves, even with public hearings there are those who refuse to admit they had a chance to be heard but were somehow excluded.

As the mediation field grows into a profession and as more people engage in mediated processes for resolution of their conflicts a time is coming where use of a third party to intercede in public policy – a mediator - as a means of assisting disputants to negotiate – will be an inherent part of public policy conflict resolution as well as in public policy development.

Punishment and retribution, when sought in mediation, present challenges to a mediator utilizing a problem solving and collaborative process. Why? There are a number of reasons – a couple are discussed below.

When we’re hurt, injured, insulted there’s something in most of us that seeks to punish the perpetrator or to seek retribution. If we are on the other side there is often resistance to accepting punishment or accepting retribution. Often emotions are involved and elevated on both sides.

Besides the claim for money, the sought after punishment, can take many forms. For example, in divorce, children become a weapon – sole custody, limited visitation, support. In workplace disputes injured parties seek the dismissal of a supervisor as a condition for settlement.

When faced with punishment the other side is at times seemingly powerless to respond – in workplace disputes negotiators are not authorized to offer anything that smacks of punishment. Potential reactions include human resource personnel representing an employer fiercely resist what they consider to be their prerogative and only their prerogative and in addition fear the liability dismissal of a supervisor may create as part of an agreement. In divorce a parents emotions are riled when faced with the potential loss of access to a child. They fight back. Focus is diverted or lost. Negotiations become competitive or shutdown. The parties are facing impasse.

So, what’s a mediator to do to assist people in dealing with seeking punishment – exacting retribution – becoming defensive – shutting down the process.

Well it depends. One seemingly tantalizing approach is to learn as quickly as possible whether an aggrieved party is seeking punishment or retribution. However, there are issues in finding out too quickly and one is timing. When clients come in to a mediation many haven’t even thought about what they want. Asking them if they are seeking punishment or retribution may surprise them – they start thinking about it – and increasingly their focus is on just that. On the other hand not being aware of whether punishment or retribution is being sought tends to focus a mediation on remedies to “fix” the problem – a parenting plan in a divorce process – making up loss of wages between an employee is terminated and the time they find a job – and it’s only at the end of a negotiation that punishment or retribution is brought up - wrecking hours of work and seeming progress.

Another approach is to shift the focus from punishment or retribution to a different goal which still enlarges the pie of the “fix”. For example in the case of children in a divorce – from using them as a weapon on which to beat up each other to “best interest of the kids” meaning the other parent has to give more attention to the kids – in termination disputes to more emphasis on making the former employee whole – not just lost wages – perhaps funding re-training. Sometimes changing the focus works while at other times it does not.

Yet another approach is to spend time on the cause of the hurt driving a desire for punishment or retribution. We’ve talked about the power of apology and sometimes an aggrieved party needs convincing their pain has been felt. Sounds ridiculous? Well at times this works.

Finally there’s the approach of dealing with the issue head on – the root cause and/or the feelings driving the need for punishment or retribution. Reality checks can be painful but effective. I bet you think this on the aggrieved persons side. Right? No, it can be on both sides. The reality is that one spouse may in fact be a “skunk” a supervisor could have been incompetent or worse. Facing those realities is tough – but they may in fact be the issue and there’s a need to address it as an issue. However, when doing this there’s a matter of trust – is this issue/drive for punishment real of just a competitive bargaining ploy – will the trust be reciprocated or betrayed? This is where an experienced mediator can create an environment where trust is tested and established. Sometimes a mediator is looked upon as the thermometer of trust – this has to be resisted – because a mediator is no better at gauging trust between the parties then the parties – but he can provide a process by which to build trust.  There is some protection in the confidentiality of the proceedings where punishment and retribution are accepted – keeping things confidential can be written into agreements – no guarantees however. It’s still up to the parties to determine on how far their acknowledgment of the source/cause/remedies driving a need/acceptance of punishment and retribution should go.

Punishment and retribution are sought/resisted in mediation – it’s a human condition. Parties and mediators have to deal with it. There are many roads to agreement despite the seeming lack of congruence between problem solving/collaboration as being amenable to punishment/retribution as goals in a mediation. Sometimes remedies require great creativity. Letting punishment and retribution be a cause for impasse in mediations does the process injustice.

Impasse, when used in mediation, means that my clients have not yet figured out what it is that will bring them to mutual agreement. At that point they have a choice – remember mediation requires mutual agreement – to continue trying, take a break, or escalate their dispute to the next step on their escalation ladder. Impasse impacts a mediator as well. Mediators also make choices when this terminus is reached – accept and support clients desire to escalate, suggest a break, make a mediators suggestion, and I’m sure there are a myriad of other creative steps a mediator can offer to clients feeling frustrated, angry, disillusioned with or with their mediator, or just plain run out of ideas.

What are some examples when impasse is reached. A common one is – a client or clients are stuck in their positions – I want y dollars and my opponent is only offering x or 0 dollars. Another is – we can do better if we move this dispute to arbitration or litigation. Yet another is – I just don’t trust my opponent enough to believe they will abide by a written agreement. If you’ve been involved in this stype of situation you probably have your own reasons. Does it make sense?

A chef’s analogy is based on whether we’re talking about a pie with a fixed size and which of us is going to get the bigger piece or whether we’re talking about creating a pie which is not of a fixed size, not even baked yet, where we can decide on how big to make this pie we call a basis for an agreement.

A mediator can and does play a role in this regard. If he can assess and paint a picture that clearly articulates the difference and is experienced in dealing with cases in this matter he creates opportunity for his clients to realize there are choices they can make in this regard – of course they have to be receptive and willing to work with their opponent and mediator in this mode. Then there’s the issue of trust – we talk about this often in this blog – trust may be broken – and working with an opponent we don’t trust makes the task difficult. A highly experienced attorney I worked with recently in a training program put the issue in clear perspective. Trust doesn’t mean accept what I say – at the same time trust but verify – doesn’t mean distrust – if opponents are willing to accept that trust encompasses – but verify – then this is one way of dealing with broken or damaged trust. For some this will not be enough while for others they just don’t know how to verify, while yet others may be tempted to manipulate the verification process by misrepresenting or even falsifying what they are using as verification – for example documentation. However, trust but verify is a powerful tool.

Mediator suggestions are a recognized tool available to clients if their mediators have the right sense of timing, are creative, and can judge their clients disposition in this regard. A mediator suggestion can fall in the range of a question – have you considered… - to my suggestion is …. – to how about we split the difference in … -. Timing is often critical – too soon or to late, a suggestion falls on deaf ears – failure to judge clients disposition to suggestion can irritate even antagonize clients against each other and/or a mediator. In an earlier blog we talked about some benefits and disadvantages of apology and forgiveness- so some things can be tricky. Cultural difficulties may also arrive – one party having no cultural difficulty while the other party finding a suggestion offensive. Providing clients with something they have not thought about does often result in a mindset change, a willingness to at least explore, even an “aha” moment and break impasse. I don’t know – but this used to be referred to as working out side a box. Again a purpose of a mediators suggestion is a form of enlarging a pie by being at a stage of deciding how big it should be or even a different recipe for the same size – different flavor.

Breaking impasse can also result from establishing a dialogue between parties wherein that process itself results in kind of a spontaneity – working long enough to become creative in their own right  through exchanges of ideas – think of enough alternatives and you get into brainstorming – thinking creatively. However, a mediators role in this regard is subject to some debate within the field – is it just talking for talking state or does it do something different – even “transform a relationship”.  Personally I haven’t seen that much of it happen – perhaps I lack expertise in this area or it’s my analytical background which tends to look at process as step wise with increasing and narrowing focus towards an end result. I’m sure there are those who can shepherd their clients in a transformative way.

Finally, when is it enough- we’re done. I always try to make sure that clients know they can come back for further discussions should they somehow find it useful to return. Kind of lame, huh?  Well for one matter time is always an issue. The other and more important it’s a challenge placed to clients as the ultimate determiners of what’s their next step what’s their best alternative to mediation – to a negotiated settlement.

I do have to tell you that this statement impasse is “clients have not yet quite figured out a solution to their dispute is powerful incentive to my keeping going with clients – however, it’s up to them. I remember one case of a court ordered mediation where the clients decided to take their issue in front of a judge – and he convinced their attorneys to settle their case - and they did – not on the court house steps but in the courtroom. So there.

In Hawaii the community and taxpayers are embarking on a public policy decision – build a fast rail system which is already generating litigation. The last public policy decision was sunk by the State Supreme Court – the Super Ferry. However, the costs involved with Super Ferry’s departure, even though large, are dwarfed by the estimated – much less potential – cost of Fast Rail. Talk about a public policy issue needing to avoid, prevent, resolve conflict – this is the one.

Despite the Super Ferry and some other fiascos in the public policy arena Hawaii is rich in resources to put in place systems, processes, and infrastructure for collaboration consistent with the states Aloha Spirit. The big question is whether the stakeholders in the project are willing to commit to a collaborative dialogue meant to achieve mutual agreement or whether they will go down the road of growing adversarial relationships resulting in litigation - which until the judiciary makes a decision will remain in limbo – while millions of dollars of taxpayer money are being spent concomitant with ballooning costs? Does the scenario or even the issue – fast rail – exist in your area? If so read on.

To change from an adversarial to a collaborative and problem solving environment is not easy but the alternative – endless litigation – where decision making is transferred to an arbitrator or judge – is giving up choice by stakeholders. As long as problem solving between stakeholders works – meaning mutual agreements are reached – decision making stays with stakeholders.

So, a first step is to identify stakeholders who are willing to work in a collaborative problem solving mode. A stakeholder is someone who has not only an interest in a project but issues with the proposed rail system. Those stakeholders need to find a place around the table and their issues made transparent to the other stakeholders.

In order to initiate stakeholder activity they have to informed, educated, and convinced they will not only be heard but also responded to in a civil and dignified manner. For this to happen a forum, process, systems, and commitment from other stakeholders has to be achieved. In addition there must be ground rules, processes, systems, and infrastructure in place. And finally there must be an understanding and commitment by stakeholders as to what they are going to do when recommendations and agreements are reached in these dialogue forums – people don’t just want to spend time talking and problem solving only to find out no action is going to be taken on their agreements or recommendations. A step which can be taken in this regard is to have an escalation ladder which progressively ratchets up issues from direct negotiations, facilitation, mediation, to arbitration/litigation. In addition agreements must be reached in terms of confidentiality versus transparency. We’d all like totally transparent processes however that may not be realistic as there may be some issues which, to be discussed must occur in a confidential manner.

In terms of infrastructure – places to meet – frequency – format – record keeping – scheduling – and other infrastructure needs have to be identified and provided for. In addition resources – professional and volunteer - must be identified and made available for stakeholders to actively participate.

No process, system, or approach is 100% perfect. For example there are disruptive people whose principal aim is to derail a process – agreement on ground rules need to be reached. There are people who insist they are stakeholders in terms only they can understand – identifying who is a stakeholder is one of the considerations which must be built into the process and mutually agreed upon. There won’t be 100% mutual agreement – that’s a reason for an escalation ladder. We’re already embarked on the project and there are still those who question whether or not we should even be doing this project – that doesn’t mean stakeholders cannot hold dialogue. However, consider the alternative – a cascading adversarial environment where positions continue to harden along with the potential impact on the community and taxpayers who are being told this public policy decision – we must have rail as a way to alleviate …. – is made for their benefit. Later they find out that an arbitrator or the judiciary is going to be the one who makes the decision who wins and who loses – in the meantime their tax dollars are being sucked up like a black hole.

On the other side of the project is the construction itself – huge project – thousands of workers – hundreds of owner, contractor, consultant firms – in a highly fragmented and often adversarial relationship with each other. Is there a choice? Yes projects like this often benefit from a concept of construction partnering in which everyone involved gets involved early enough in the project to come to a mutual understanding of project objectives and are informed, educated, and expected to participate in processes and systems to work collaboratively and avoid, prevent, and resolve conflict. The process is often referred to as “construction partnering”. Given the complexity and risks involved in a rail project of this size and the expectations that it will be on budget, within schedule, and meet the performance requirements demanded by taxpayers “construction partnering” is a must.

So what can we as individuals do? That depends. In my case I intend to at least provide stakeholders an opportunity for dialogue in a collaborative and problem solving process through my series on Avoiding, Preventing, and Resolving Conflict on Hawaii Community Television. If possible it will be modeled on what I’ve indicated above and through organizations willing to lend a hand. In addition I intend to offer my services in this field in creating and sponsoring training programs as well as on-going services during the project. If you’re a taxpayer I encourage you to make your voice heard that in projects like rail stakeholders commit to dialogue – before and during projects – in a way that avoids, prevents, and resolves conflict. No one can stop lawsuits from being filed – however if we succeed in making public policy decisions more collaborative in nature and establish processes and systems where stakeholders have a place at the table then perhaps we can reach mutual agreements rather than deferring the decisions to arbitrators and judges – or on the court house steps – while we’re burning money in delays, litigation, with a potential scenario like the sinking of the Super Ferry. Let’s learn our lesson and move forward with confidence that together we can do so much more collaboratively and solve problems through mutual agreement or at least through the application of an escalation ladder.

And finally get familiar with what your area has in this arena for projects - for example a dispute resolution board or other means of working through the issue - but ensure that processes, systems, and infrastructure for problem solving and mutual agreement exist, are utilized, and are robust.

Conflicts do arise in volunteerism – sometimes as a member of an organized non-profit organization – a religious organization – as a park volunteer – etc. And, it’s amazing there are so many volunteer “opportunities”. Giving seems to have little or no boundaries – nor is there a lack of need.

Take “helping” the homeless. They are no longer invisible – to some they are entirely too visible and intrusive. Seeing fellow human beings living in cardboard boxes – their appearance – experiencing their requests for a handout – is disconcerting –either towards giving or being put upon.

Ok so you decide to “help” the individual or in a well meaning organization or about an issue a homeless person is facing – they can’t speak the language – they are being threatened to be thrown out of a shelter – they are in conflict. You get involved – can you really do something – how – for how long – to what state – do you want to get to know the person – do you want to deal with their disputants? These are all questions you ask yourself – it’s conflict – and what’s the role you are going to play?

Take an organization – your networking colleagues tell you that getting involved with a volunteer organization is one way of marketing yourself – become an officer and it’s better. You do get involved you become an officer – things don’t go as expected – for whatever reason there’s conflict you don’t fit – your ideas don’t work out as you expected – internal politics – “I don’t need this”.

Take a Church – you are religious – what better place to volunteer then in this community. There’s a problem which gains media attention – conflict – “why am I involved”.

So yes volunteering can result in getting involved in conflict – I volunteer at the community based mediation center where I deal with people confronting conflict – involved in disputes – sometimes I wonder why am I doing this?

Despite the above examples of conflict we still volunteer, still do great work, efforts and benefits from volunteerism are many fold – and they can be better if there are systems and processes in place to avoid, prevent, resolve conflict.

In many cases processes and systems to avoid, prevent, resolve conflict are not in place with a price paid varying from we got over it – to forcing someone to withdraw – to loss of good standing in the community well beyond the volunteer organization, group, or situation – sometimes even civil or criminal action – litigation – to the break-up of the organization or group – relationships damaged or broken.

Systems and processes in volunteer organizations do not have to be complex – but do have to be thought through – with volunteers in place to intercede when appropriate or necessary. The system or process can be formally or informally established. In organizations it can be in a governing document and members can be periodically reminded such a process is in place. In other case it can be an informal system  - if you have a disagreement here’s the go to person. In still other cases processes, systems, and interceders may be from outside the organization or group. The emphasis in most cases should be on collaborative processes – at times it may be appropriate to develop an escalation ladder wherein there’s a progression if agreement cannot be reached at one level it moves to the next level.

Volunteer organizations often represent value to a community or beyond – each individual is an asset offering value - to hold on to good people- to safeguard the organization and members – to achieve goals and objectives – avoiding, preventing, resolving conflict through systems, processes, and intercessors should be as high as any other objective a volunteer organization and/or effort needs to flourish.

I’ve been editing a training session we videotaped last year. The session was designed to inform, educate, and promote the use of construction “partnering” – developed in the US by the Army Corp of Engineers to create a collaborative environment amongst organizations and firms which in many cases have had an adversarial relationship bounded only by contract – thereby not fully committed to the overall goals of a project but merely their own roles in the project. In structuring the training session we wanted to engage not only the willing but also those who, in these types of sessions are reticent or even unwilling to participate – and just want to listen – as is also the case in facilitations and mediations. Did we succeed and what else did we learn from the session.

First is the importance of explaining why we’re here and what it is we want the participants to do (for themselves). I’ve covered the importance of opening statements in past blog entries but it’s important to reiterate this message – briefly – once again. By capturing the session in video and during post production – editing – we found that we didn’t exactly define the problem we wanted our participants to tackle – as an example of where we can do a better job. In mediation the same can and does turn out to be true – one or more parties don’t do a good job of explaining why they are in a mediation  nor what it is they need in order to resolve their issues. Time is wasted and we teeter on the brink of or get to impasse.

Second, in the training session the participants – who were divided into project teams and as representatives of different organizations – often discussed the lack of understanding as to roles and responsibilities. Now in our training session case we specified responsibilities only in general terms however in the context of the problem we gave the participants it proved insufficient. And, since we had two teams working on dealing with “problems” we gave them also made differing assumptions about roles and responsibilities which impacted how they processed themselves through the problem. Crossing over to mediation and facilitation, our experience in the training session reiterates the need to have the right people – who are responsible as well as have the authority to make decisions – and – that assuming someone elses roll can change an outcome – mostly in the wrong direction – during mediation and facilitation.

Third, communications – lack thereof or without clarity – was also a recurring theme when groups met – not as a team – but as an individual organizations – it was better discussed when the organizations met with others as a team – although they didn’t refrain from a “blame game” it was more of a problem solving effort.

Fourth, our training session had three parts – the first part was an interactive presentation including the use of slides as well as video. The second and third part revolved around a hypothetical project and “challenges” or problems each team encountered in the project. In the second part they were asked to identify: what was working/what was not – risks – and opportunities for their organizations. In other words they met as a “silo”. In the third part the teams were realigned so they would consider the challenges in groups formed with representatives from each organization at their level within their organization but as a team – in other words executives from 3 organization sitting together to discuss the same challenges – project managers and field engineers did the same.

So, when sitting in their “silos” it was easier for them to focus on “their interests” rather than the overall interest in the project.  As a contrast when they met as peers from different organizations their deliberations became broader in nature and more in keeping with a view towards a common project objective – project success and less focused on only their organizations interest. From this training experience one of the lessons learned is that likewise, in mediation and facilitation it is often important to transform a discussion from an adversarial win lose on who gets what piece of a pie to a collaborative problem solving effort which can and often does enlarge the pie – creates opportunities.

Fifth, for me and my trainer and facilitator collaborators this training session provides invaluable lessons in our role and responsibilities as third party intercessors – how we structure a process – how we formulate and deliver our messages – how we listen – and at what points do we intercede in the discussions being held.

The up front work we do in preparation for a training session or mediation or facilitation is critical towards establishing a process by which a, or a set of objectives are met. In training we wanted to inform, educate, and promote partnering while in mediation it is resolution while it facilitation it is to leverage the power and knowledge of a group to produce knowledge, input, or a variety of other products which can be used to resolve problems.

What is a mediator?  Some refer to themselves as “recovering litigation attorneys”, while others are not attorneys at all, they may be psychologists, professional writers, retirees, or people of good will searching for a means to contribute to society – some with expertise in particular areas while others are generalists who develop skills in mediating through community based centers – some mediate solo while others co-mediate – some handle simple cases, others complex cases, and some practice in disputes around diplomatic and political areas.

Often the first question raised by a client is how much do you charge with something like “it’s an uncontested divorce, we just have some ‘simple’ issues to take care of” – sounds like a dog barking case to an attorney – who laments ever taking on the case of a friend of a friend against Fido and his owners.

Most people calling may not really know what mediation is – much less what they need in a mediator. And yet they are ready to invite a mediator into their lives during a very difficult time – in conflict and/or dispute.

So, yes a mediator is a person who holds himself or herself out with a set of skills that may be backed by significant training and experience or just starting out – which doesn’t necessarily rule them out. They may or may not have subject matter expertise – there’s an on-going discussion about this inside and outside mediation professionals. They also bring a personality and a style which needs to fit the clients and utilize an approach compatible with the style of clients.

As examples of personality of style – don’t forget consideration of gender equality as a potential issue which bolsters or undermines the credibility of a mediator with their clients.

Mediator utilize a variety of “processes” – some are facilitative – some are more directive – some are asked to offer their opinions on a case – what are your and your opponents needs – don’t get stuck with one whose process is counter to your cases needs – remember mediators are chosen with the mutual consent of all parties – with some exceptions – court offers a mediator in small claims court: clients use the mediator assigned for that day.

Co-mediation involves the utilization of more than one mediator in a case. We mentioned gender equality – that’s one area where clients may want to utilize a male and female. Co-mediators usually work well together – however there are cases where their styles and processes may clash – you don’t want mediators creating conflict within a conflict do you? Perhaps some clients do but in general they don’t.

Creative thinking – is it a need in a case? If clients are searching for alternatives they may wish to explore just to what degree a mediator is capable of working “outside the box” – don’t be afraid to query. In other cases there may be “help” clients want in doing something like filling out a “parenting plan” – check to see if a mediator is working to do this kind of work – some object getting into this level of detail.

Availability – clients at times turn to mediators because they believe they can do some work on their issues more quickly than by other processes. Some mediators are readily available while others are as busy as the court calendars. If timing is an issue make sure a mediator can fit the time line you and your clients need. On the other hand some mediators may offer only a limited number of time or times clients can come to resolve their issues. Some may feel they need too much time for clients purposes and so again getting a mediator striking a good balance may be a criteria that is important to clients. Clients vary in terms of their ability to participate in a process which may be to long – too short – too much explanation – too little.

So, hopefully this potpourri of observations will help those considering either being mediators or using mediation to consider what kind of mediators they may wish to be or – if they are clients – what kind of mediators there are.

We covered aspects of this in previous blogs but as time passes an occasional reminder and update may prove useful.  

Often when clients show up at mediation trust and relationship has been damaged or broken and I always wonder how many warning signs and flags were raised along the way and somehow either passed unobserved, ignored, or un-acted upon? Sometime during our careers and/or our lives we all run into situations where disagreement grows into conflict and explodes into dispute.

Warning signs can, as examples, be as observable as changes in behavior, communications changes or deterioration, performance, our own inaction or reaction to people in the relationship. Why do they go missing? Why is it that tipping points are reached and a rapid or gradual spiral downwards ensues?

Part of the reason is rationalization – they are upset and will get over it – they are eccentric – maybe weird but harmless – I’m somehow seeing this wrong – it can’t mean what I think it means.

When the final crash occurs – it’s amazing how powerful hindsight becomes- had I only acted sooner! Why didn’t I see it? – a riot of emotions often accompanies the crash – sometimes guilt sets in – it’s my fault!

So, what do we do about this? Should we even care? – If I’m an employer I can occasionally expect this type of situation and we have procedures to deal with violations of our policies, etc.

Good riddance – got rid of him before he caused more damage – or as a result of a situation I’m in damage control – get him as far away from me as possible – who gets the kids, the house, the dogs, the home entertainment system?

We should care – it’s the loss of someone who could have been or was a great resource – the kids care – I’m left with a hole in my heart.

Flags and warning signs are all around us – however – no matter how sensitive we are – at times – we need the help of skilled professionals who can discern what’s happening and be empowered to act on such discernment in an objective and problem solving fashion.

As individuals we fall into our own traps when it comes to ignoring flags and warning signs like people falling inexorably into alcoholism or other addiction. We turn to something or someone for empathy, understanding, reassurance or we turn inward and hole up in turtle shell like fashion – we go through our own emotional roller coaster – that feeling of helplessness – spinning wheels – why doesn’t somebody do something to help me – we fail to take action to stem the tide.

Just as in addiction the first step is acknowledgment or at least a willingness to get an objective view of what’s happening – again a third party – properly skilled and experienced - may be part of the remedial action necessary to gauge what’s going on.

Having said all this  - I’ll still have clients – people will still wind up going from disagreement to conflict and into dispute – but maybe there will be less of them and more acting upon flags and warning sides– engaged in collaborative problem solving – seeking not just temporary  - but lasting resolution to issues before emotions run riot – or drastic action is necessary for damage control of an out of control situation. We’ll all be better in better relations!

In mediation listening is an integral part of being a participant and being a mediator. My wife often tells me I just don’t listen to her. Of course I am in denial. Sometimes misunderstandings ensue. And, I remember, when raising our children, saying to them, sometimes in a threatening way, “now you listen to me or else”. In my family we’ve all had instances where we listen yet do not hear. Since this happens in intimate family relationship I no longer wonder my clients run into similar issues in divorce or when involved in business or non-family interpersonal relationships?

To sharpen my listening and hearing skills I’ve taken what may sound bizarre - producing videos. My videos tell a story about people in situations where conflict arises.

You ask –“what does creating videos have to do with sharpening listening and hearing?”

Well for one thing I spend many more hours editing – listening and hearing (also seeing)– than I do making a video. And often one of my biggest problems is the audio – not set up right – background noise – a motorcycle or car with a modified muffler roaring by – all potential distractions not only for me but my audience. But since I write most of my stories or moderate commentary by experts I get a first hand view, of course not objective, of how well I conceptualized messages I wanted to convey – how well my actors translated that message – and whether the way we captured that message does the effort justice.

During editing is where I see all of the above exhibited, sometimes to my dismay while at other times creating joy and often surprises – some in the audio other times in the video – sometimes in both – of what happens in translation. From producing and particularly from editing I get a chance to calibrate a whole range of issues from listening and watching the results.

Let me give you a few examples and translate those into challenges with regards to listening and hearing. First, is in the structure of a message – the script. I’m a novice. However I can tell you that I started by trying to write a script to match the way I speak – my actors had a devil of a time in execution – I use too many long words – my sentences were convoluted – jargon – failure to provide enough context – one critic called it prose, not a script.

Even today when I edit – I wind up cutting out un-necessary phrases – my own commentary – switching clips around because what I hear is at best uncomfortable while at other times unintelligible. Certain words and phrases have crept in – “aspect” is an example. And then there’s the improvisation by my actors which sometimes adds while at other times changes and still other just makes no sense – however, there are those flashes of brilliance that come from an actors experience – changes in emotional state from that which I originally intended.

As a result I have become increasingly sensitized – when listening to clients for the presence of similar – new – unique characteristics while they speak – body language – and – how I convey or work with what they have stated in interactions with their opponents. I consider my own improvisation in my interactions with clients with greater care within the bounds of reframing or reflecting – two techniques mediators and facilitators use when listening and then conveying information between opposing parties.

Just recently I learned the hazards of being caught up in the moment when producing a video – I was listening so intently to what my actors were saying and my actors were so caught up in acting that none of us noticed until long afterwards – me during editing – that the main actor was reading – with his hands extended – from paper – which he was supposed to be carrying – but wasn’t. I’m having a fun time trying to recreate the paper through animated graphics. I think this is a vivid demonstration of watching but not seeing. The same can happen with “hearing”.

Listening is an individual capability – better in some than others – however, the good news is that it can be honed – for me it’s through trying to better communicate starting with my family – through mediating and facilitating cases – and through video production. We can all find ways to become better listeners – then we have to have a set of metrics by which we can tell whether what we are hearing is indeed what was intended – from there we can reverse engineer to see whether we can better structure and deliver messages we want to communicate with whatever audience we are trying to reach.

Facilitation, to me, is the leveraging of the knowledge, experience, views, and feelings of a group of people, focusing them towards a dialogue about an issue, problems, needs, interests, challenges, and capturing the results as a product for subsequent utilization as for example to making a decision by an authoritative and responsible body. This is not to say that the participants, themselves cannot serve as problem solvers.

A point of focus is established by a body, say an organization, that needs the input.

A facilitator has many tasks in a facilitation. However, one he does not have is to interject his own views or to try and move participants towards his particular points of views. Given human tendencies I don’t know that this is always the case. However, a body engaging a facilitator and you, as facilitator, have to trust the participants to keep you, as facilitator focused on process, not input or drive  participants in a particular direction.

Participants in a facilitation need to be able to comprehend and to the degree they can accept and comprehend the objective desired and to collaborate with the other participants and the facilitator to providing input. They have to resist temptations or even urges to monopolize, to intimidate, to coerce others towards their points of view, to pursue their own agenda, to disrupt, disrespect, attack other participants or facilitator. A facilitator has to be empowered and know how to navigate through difficult behavior, to engage the participants, to strive to get as close to 100% of participants to input as possible.

It’s highly desirable to:

·         Have a recorder who can capture group input concisely, accurately, and visibly for the entire audience to see.

·         To provide a means by which progress in a session is periodically summarized for the group.

·         Maintain civility, respect amongst the participants, be inclusive of all points of view.

·         Allow for calibrated divergence in points of view from the focus by gauging the relevance of views expressed. The way I think about it is in the context of a person who spends his life behind closed doors – has an insight no one else haves – and finds this facilitation as the place to make it known. Ok not totally on point – but powerful – actionable – within the scope of the requesting body.

·         Use appropriate and well timed humor – but not at a participants cost.

·         Take a break.

·         Keep a parking list of items which may require further discussion – time available – and then do it when the time comes.

Facilitation is measuring an audience, trusting that there is a human desire to work collaboratively, and realizing that not every facilitation is going to be a grand slam winner.

There are times when one or a limited number of people have unlimited inputs. In those circumstances there’s a question whether to say “let’s hear from someone else” versus gauging whether to let a few people do most of the talking and inputting. That’s a tough one.

Facilitation should result in not only a good product – inputs captured and provided. Participants should be able to come out of a facilitation with at least a conviction they’ve had an opportunity to input even when they may not think something will come out of the proceedings – that’s where it is helpful to have a follow-up plan - even if it is acknowledgment of receipt of their inputs.

Another benefit of group input is in the understanding that input provided is from the group as a whole rather than by an individual – it has to be a haven to the degree possible.

Facilitation is an art form of dealing with people – of varying desire to participate or input – diverse views and perceptions – and bringing them together to produce a product which is, yes focused, while at the same time brought out and reflected in concise and in an accurate manner.

One man’s point of view of this developing and expanding field.

Had an opportunity to capture on video a two part interactive presentation on apologies and forgiveness given by one of our leading ADR practitioner’s – Lou Chang. One thing I have learned is that you can’t really capture what Lou and the audience (of over 50 people) said while producing the video. However, since it will take about two months to edit the video plus commentary – it’s just worthwhile to consider the power of apologies and forgiveness in conflict or dispute situations. One aspect of the presentation which was particularly moving was a video about South Africa and their reconciliation program. If you can check and see what happened in some of those situations captured on video. The one we saw had to do with a black police officer who belonged to what can most kindly be described as a professional entrapment and killing squad – black youth were entrapped into radicalism – provided weapons – then killed – murdered! Focusing only on one point – his meeting with mothers of the teens killed – is an amazing interplay of condemnation – anger – and forgiveness all rolled into a dialogue which takes place in a peaceful setting. There is also a display of apology by the officer - interplayed with an attempt to provide some justification – I had to do it – what choice did I have – we’ve heard that before and will continue to hear it. Lou provided examples of statements sounding in apology as well as those which were more convincing – even compelling.

Tomes have been written about apologies – forgiveness – yet we so often forget the power of these interrelated means of communicating – sometimes even subsume expressing these feelings for a variety of reasons. And, we shouldn’t forget that there is additional power linked to spiritual notions driving apologies and forgiveness when we look beyond ourselves and to our common humanity – however realizing it’s an individual notion which may or may not be reciprocated.

Bottom line – apology and forgiveness can be a source for avoiding, preventing, and resolving conflict – comes from within us – and like any other communications skills – can be learned and applied successfully. We’ll return to this subject upon conclusion of producing the video and subsequent commentary.

An Upleasant Moment – What to Do?

What doe sit take to stop a mediation dead in its track? There are a variety of reasons. However, my least favorite is when a client attacks me or a co-mediator. Why because it has the potential, if not in fact, of robbing me and/or co-mediator of objectivity. When objectivity is lost – stop mediating a case.

At times an attack on a mediator comes about because that’s a clients, or their advocates, style. Sometimes it’s just a way to intimidate a mediator by putting them in their place or down. In every case clients take a risk when they make a decision to attack a mediator.

How bad an attack does it have to be or of what nature? That depends. We all wear skins of differing thickness. My skin can’t be so thin as to walk out every time I’m attacked. Does there have to be a line in the sand? I would suggest that when an attack does occur – it may be time for a pause, maybe a caucus, a one on one session with an attacker. A pause may be useful because it gives time to dampen emotions. A caucus my be useful because it may be a time to get a better understanding of underlying reasons why an attack occurred. However, watch out for manipulation by an attacker - to break rhythm, a disruption, or just a means by which to seek an advantage.

One thing not to do is to get drawn into an argument. Humor? Maybe. Diffuse, deflect - don’t ignore? Useful tactics if chosen to fit the moment and the nature of the attack. Don’t counterattack.

If you do walk out – be courteous enough to suggest or get someone else to handle this mediation. That way at least there is a chance a mediation may go forward and clients still leave satisfied.  Do you have to justify why you walk out? I didn’t I just did – however we found a substitue. I remember a story from a dear friend who was a policeman who told me he and his partner made a bust – it turned out the busted person was a clergyman who struck his partner – my friends flashlight wound up on the clergymans head. I don’t recommend a physical reaction under any circumstances except self-defense.

However, do watch out for your co-mediator – support them – don’t let your ego rationalize justification of an attack and removal of your co-mediator – you would want the same support from your co-mediator.

People coming into mediation are often upset and they may stray into mediator attack because mediation of a case is not going the way they want it to go. Such frustration can be channeled and deflected – even used to advantage in getting parties to become collaborative – remember you don’t want clients to focus on each other – rather focus on the issues – and if you’re a means by which to have it occur – so be it – you’ll get over it.

Make sure that when ground rules are explained to your clients they understand what you mean by “don’t attack your mediator”. There may be consequences!

Collaboration should result in mutual benefit – shouldn’t it? So, how? Is it matter of mutual respect or something more pragmatic? A realization that a solution can be found that is bigger than the individual parts? Is the international space station a potential, practical, living example? And are the people who live on the space station experiencing the fruits of collaboration as a result of their experience? If so, do we have to send people out of this world to learn true collaboration? If so, we ought to be sending educators and trainers to the ISS to hone their skills and bring back what they learned so they can start teaching the rest of us about collaboration!

So, what is collaboration in more earthly terms? In divorce- it is in putting kids first and being collaborative rather than dysfunctional in rearing and emotional development. In project teams it is working across organizational lines towards a common objective – for example - project success versus I did my part and too bad if someone else doesn’t and project fails. In communities it is looking across deep divides and finding ways to accept each sides peoples lives matter just as much as mine and should be lived and pursued with dignity and respect. Amongst nations it should be a realization that we live on a planet of limited resources which are increasingly being depleted at an alarming rate without replacement or compensating efforts on our part to create a balance.

Collaboration seems to imply taking a broader look than the I or me to the us and they and when we do so, magical things happen – ISS pursuing science without much fanfare but where the benefit is across national lines – not just limited to one country or nationality. And, the good news is - we don’t have to head to space to seek ways in which we can learn how to collaborate – just look at the nearest person and opportunities develop.  It’s being confident that the outcome can be bigger than just splitting the pie – it’s actually expanding it.

One of the biggest issues in deciding on collaboration is trust. In one form trust is built upon competence and results. In another it comes from being able to rely on a person even at the cost of our jobs or even our lives. At times trust is damaged, broken, or even betrayed – look at trainers in war zones who are at times turned upon by their trainees. Trust can be built, even rebuilt, through such means as recommitment, gestures, apologies, forgiveness and circumstances. When it comes down to it human will is a driver towards trust or distrust. How much is enough trust to collaborate? Does any level of distrust destroy collaboration? Can we trust but verify and collaborate? Is verification a sign of distrust?

Who pays for lack of collaboration? Yes, the disputants but in too many cases it’s more widespread – in divorce the kids pay – in community disputes communities pay – amongst nations, youthful warriors, believing themselves invincible, pay. They pay too much – in this increasingly competitive world – they miss out – or are cut short because they pay with their lives while disputants haggle, argue, and act dysfunctionally.

Besides trust there’s the issue of common ground – finding it – valuing it – acting upon it. There’s always common ground – we live on earth for goodness sake – by definition it’s common ground – and although there’s always scarcity we continue to support an ever growing population with a commensurate rise in intellectual power – we can put more intellectual power and common sense to finding common ground and managing relationships amongst ourselves for mutual benefit. Reject the argument that we’ve tried everything and failed – it’s too much of - we keep doing the same thing over and over again – and treating it like it’s something new.

In geologic terms humans are infants – the dinosaurs lasted for millions of years  and thrived – so get off the band wagon of - we’ve tried everything and failed – if we do fail, and looking at it from a secular perspective, we’ll be another of nature’s failures as a species.

Finding common ground is sometimes easier while at other times it’s difficult - energy and time consuming. So, search – find new ways of searching – be open to dialogue – and patient. In the meantime build trust – and search for viable alternatives we are willing to consider. After enough fruitless argument and win-lose scenarios even the most contentious will realize collaborations benefits far outweigh the grief from outright winner take all scenarios.

Don’t believe it? Become a space flight astronaut, cosmonaut, or whatever and live on the ISS for six months and see whether you are transformed?

Aloha All:

We've become so visual! Naturally a lot of attention is being given for ways to provide visualizations of avoiding, preventing, resolving conflict. So, to provide an example of what we've done in informing, educating and promoting mediation (as one form of confllict resolution) visit http://www.youtube.com/watch?v=hPDejO1d3N4 . Creating this 3 minute spot was inspired by the message in an episode we did on our Hawaii Community Television Series "Avoiding, Preventing, Resolving Conflict" (to view recent episodes search for "Olelo on Demand" then select the category "education" and search for the series by name). We thought the topic "learning disability claim" and the performance of our actors was, as my British colleagues would say, "brilliant". We hope you agree.

There are many ways that facilitation can be utilized as a catalyst in communications and, at times problem solving.  As a facilitator I am trying to leverage the knowledge of a diverse group of people who may have differing perspectives on an issue or set of issues. So there is the facilitator and, I guess the facilitated – each has a role – and at times the roles are intertwined. Recently I was asked to facilitate a group to discuss a local issue without being informed as to what the objective of the facilitation was going to be. No problem. At the beginning of the session the requestor provided the needed information. Not wanting to hold up the deliberations I informed the group I did not know how to start the dialogue. An individual chimed in – the group nodded heads in assent and off we went – around the circle with each person providing their input to how they felt about the issues we were considering. As each provided their perspective my job became to distill what was stated into, for lack of a better term, a bullet point. Before long we started running out of room on the whiteboard – an individual copied the inputs onto a sheet of paper. The inputs continued. Then an individual who, was doing a circuit of the workgroups, showed up to provide input which became awkward (an advertisement) as it was disturbing the rhythm the group had developed. I interceded with a request to make a focused input  and stated a time limit – which was exceeded so I summarily broke off the input to return the group to focus on the issue – of course the individual was upset – we continued and filled the remaining space with inputs. One way to look at the inputs – on a proposed rail system – were, or sounded in, opposition – however another way to look at it was to say that at the very least the inputs being provided to the target audiences- which we did identify as part of the facilitation – were on the one hand, concerns which the group did not feel were addressed by officials during consideration of the proposal, while on the other, it is a call to action to the public to make their views known with information about how to make those inputs.  As to the product – one group member did agree to follow – up with developing scripts which will be produced into PSA’s. There are risks in these types of ad-hoc facilitation requests – and certainly it’s better to go in fully prepared for the task to be undertaken – however it’s exciting when a rhythm develops in a group and especially when it generates enough enthusiasm and perceived value to get a commitment for follow-up. As an aside – the individual doing the circuit did come back and provided input in tune with the groups objective – I did apologize afterwards for my intercession – so for me the matter is closed.

Post Script - As I understand it the end result of this facilitation resulted in productio of dozens of Public Service Announcements for airing on Community Television - great job  group and Mahalo to Jacob for his continued involvement from the crafting to provision of the scripts and the volunteers - some from our group - who actually produced the PSA's!

Just can’t help but write “peace and goodwill towards all” one of the central messages of the season. Sometimes realizing this requires a third party to intercede and that’s ok. For Christians the intercession required Jesus Christ – but that was for all humanity. In times of our conflicts we may be able to rely upon a mere human to serve the role of intercessor in business with business, business with client, and interpersonal relationships to avoid, prevent, and resolve conflict.

So, as we reflect upon this year and plan for next consider whether or not there is a role for a third party to intercede in training or working with you and your counterparts in bringing forward peace and good will in a spirit of mutual collaboration rather than in an adversarial manner.

At the same time reflect on the message of this holiday brought forth by the birth which inspired this celebratory occasion – a message not lost by the ages – however unfortunately this message continues to be ignored or subsumed by other considerations.

Merry Christmas!

Collaboration – a process where parties work together towards a common goal – it could be resolution of problem in a relationship, a conflict, a dispute. Bargaining in good faith is essential. Good faith is usually associated with sincerity and honesty. Power – too much on one side – makes it difficult to collaborate.

However, when there are problems in a relationship, conflict, or dispute there is a tendency to go for win-lose driven by emotion – competition – desires for punishment. Collaboration is often perceived as requiring too much time – a fear that when it’s done we’ll be at the same point if not worse – so who has the time to spend on endless talk.

What sometimes happens is that one of the parties recognizes a third party intercessor may prove to be useful. However, there is all too often a reticence to pursue seeking out a mediator or facilitator – the other side will never accept involving a third party – so things just keep going the way they were or get worse or an advocate is hired to fight the battle. Consequences and costs rise as the battle rages – problem stays unresolved – positions harden.

So, what does it take to break this cycle? Well one thing is that there may be external factors which cause one or both parties to re-examine and reconsider their positions and their attitudes towards a problem. For example there may be economic factors involved – in a macro sense a change in generations – pressures or influence from outside the relationship. Other problems may come into play, which soften positions. Power balances may shift.

Or, the right intercessor may be found in whom both parties have a sense of “trust” or a combination of situation, perception, and the right person at the right time. Or, something tragic may occur in which both parties recognize they have to move forward in dialogue towards resolution.

So, let’s focus on who is the right intercessor? It depends on a variety of factors determined by the particular needs of the parties. As parties – do you spend enough time in consideration of – is it necessary for an intercessor to have expertise in the specific area in dialogue – problem solving – dispute? Even professionals differ in their opinions on this subject. One point of view insists it is essential. Another point of view insists that an intercessor is best leaving subject matter in the hands of the parties and focusing on process – suggesting that no an intercessor does not need to have subject matter expertise. There is no consensus on this point.

Another issue deals with culture – whether from a people or organizational perspective or both. Here the discussion revolves around respect and dignity of the proceedings – the way that discussions are held – etiquette – and a host of other cultural issues which may, if not considered, cause further offense – or destroy an intercessors ability to deal with issues.

Another issue is personality. Something as simple as an intercessors attitude towards the parties can help, hinder, or destroy their ability to work with the parties. Both parties need to be confident personality of the intercessor is not an issue.

Access to infrastructure may be essential to a discussion. Infrastructure includes technology – it can help or hinder dialogue – too much it may overwhelm – discomfort in the use of a technology can create tension – unavailability may deter productive dialogue. We’re not just talking about phone, e-mail, or web – but a whole panoply of technologies which may be useful – even critical to progress. Infrastructure includes where dialogue is to take place – comfort, accommodations for people physically challenged – translators – name it – make sure an intercessor has a capability to make it happen.  An example of an issue which may prove detrimental is place – opponents lair.

An intercessor- mediator or facilitator- must have skills matched to the complexity of a case. Amongst the first is listening skills – lest something critical is missed, misinterpreted, or confused. Coupled to listening are analytical and construction skills so that an intercessor can reflect, reframe, or in terms communicate clearly, with clarity, and concisely when the need arises. There has to be logic to an intercessors madness. Yet another key skill is the ability of an intercessor to put themselves into the shoes of both parties without being judgmental or critical – this does not mean – no asking questions. A skillful intercessor is an expert at asking questions – probative (open ended) ones – rarely “yes”/”no” types of questions.  A probative question is one which requires a client to think more deeply before answering. Probative questions may even open other areas for discussion – maybe something that a client has not thoroughly thought through which is helpful to reaching resolution.

An intercessor has to be a good manager of time and keeping folks focused without inhibiting creative thinking. Everyone’s time is valuable and especially when they are under stress – one can only take so much. An intercessor has to effectively manage a process with flexibility and at times with creativity.  An intercessor has to be sensitive to the way people communicate – some concisely others need more time and it takes great judgment to know when to intercede so one party is not perceived to be monopolizing the time at the others cost nor that intercessor is playing favorites. Sometimes this is a very tough area in which to maneuver.

Finally, there’s “trust”. Clients often come in with situations where trust has been broken and so they utilize an intercessor as a broker of trust - however – in reality – clients remain judges of whether or not their opponents can or cannot be trusted. So, clients are advised to trust with caution even verification rather than mistakenly relying an intercessor to be filling such a role – we always talk about mutuality or consensus when dealing with reaching agreement – an intercessor is not party to an agreement.

There’s much more to be said about collaboration but that’s why research and articles, even books are written on the subject. Hopefully this blog entry invites some reflective thought on a relationship problem, conflict and dispute.

In November I had the privilege of producing a video which captures the thoughts and view of a distinguished panel of speakers – Peter Adler, Michael Broderick, Lela Love, Linda Colburn, as moderated by Chuck Crumpton – who addressed “Dealing with Political Impasse Through Mediation”. We’re currently working on editing and commenting on the presentations for Hawaii Community Television, Olelo. This blog entry is the result of listening to what these accomplished people had to say.

The subject was centered on public policy issues – includes such topics as “green”, conflicts between immigrants and local authorities, and a host of issues which arise in our State of Hawaii. Some of the conflicts brought to the forum where a third party (professional) was utilized were already deeply into litigation over tangled legal issues, while others were requested by other branches of government, while others involved questions requiring inter-agency dialogue. A third parties role included getting the right people involved (stakeholders), getting direct participation by the people directly involved in the issue to participate (with agreement by their attorneys), and “choreographing” a forum and process by which dialogue or mediation could take place. In addition where the product would be a set of recommendations one speaker voiced his strongly held belief that in advance – the area to receive the recommendation – there is agreement to accept or take forward such recommendation to the next step.

Views were expressed about such issues as a need for a third party facilitators or mediators to possess expertise in the area which is the subject of a dialogue or mediation process. Views were also expressed about what needs to be done by this community of professionals as well as potential users to increase the utilization of forums involving third parties in public policy conflicts and amongst these are infrastructure,  an embrace by people in authority to seek out such outlets, and tied into adequate funding. Amongst the reasons cited for the lack of use of these forums were: concerns over giving up authority to make decisions, concerns with transparency of these processes (because of the commonly applied “confidentiality” of proceedings inherent to these processes), and other factors raising concerns about openness and even legal authority to delegate building consensus in these forums.

However, from what we heard, there have been many successes in dealing with public policy impasses through these forums, however only a few ever see the light of day in media. So there is a need to more thoroughly inform, educate, and promote third party utilization in dialogue, facilitation, and mediation to address public policy impasse and we hope producing a record of these discussions through video will play a role in getting this accomplished. From this discussion there will be 5 X 30 minute segments which will be shown on Olelo and will eventually be available for viewing and download on Olelo on Demand as well as other media outlets. If you have an interest in this area keep your eyes open on such sources as ACR Hawaii’s web site who along with the HSBA ADR Section, MCP, CADR, and UH Richardson Law School were all involved in making this important contribution to making this presentation happen in downtown Honolulu.

Where did it alls tart and how do we start fixing communications difficulties constantly being encountered by us humans?

According to Genesis things seem to have come to a crossroads with the tower of Babel when the people involved lost their ability to communicate with each other.  Since then how many towers have we built with the same results? Today we seem to be going in the opposite directions where countless languages are being lost for one reason or another – for example the last person fluent in a language dies and without that one person the language becomes extinct because there’s no other record of that language.

So, does that mean humans are going to become better communicators with each other? There are still numerous languages and associated with those languages are their corresponding cultures, lifestyles, value systems, interests, issues, and needs. Even where we supposedly speak the same language there are significant differences between the peoples because of such factors as they live in different regions.

Even in places where it appears that people are speaking the same language how much miscommunication still occurs. Just look at our court system and the number of cases being litigated and appealed all the way to the highest courts because of different interpretations of “language”. So, there’s a continuous challenge, whether as initiator, receiver, or messenger or in our case intercessor in dialogue between people who need expertise in communicating when their own efforts are insufficient or need to be supplemented because of complexity or because of conflict or dispute.

So, perhaps one way to start fixing what happened at the “towers” is to expand the use of third parties where people find intercession productive. However, this increase is not going to happen without significant efforts to inform, educate, and promote the use of third parties in these communications efforts. Nor is it going to happen without significant increase in competence and results.

Just like in any field in order to grow competence there has to be infrastructure to create, nurture, and achieve competence which can only be created through funding. And although many are enticed into this area by the social benefits they provide that’s not enough – to get the best – it has to pay to support an ability to provide the services. And, potential users have to be able to recognize the value of the services and the people involved in providing those professional services. This does not mean that we want peoples first question to be – how much do you charge? – legitimate enough but if that’s their first consideration without even ascertaining what a provider offers in terms of service, professionals are in the wrong business. I’m still rankled about those volunteer intercession situations wherein a client in a dispute, dissatisfied with the way mediation of their case has gone, can say “I’m not sure the $50 dollars I paid the center (not me) was worth it”. Oh well maybe the client was right – I didn’t do a good job – we’ll leave it at - there’s definitely a communications problem there somewhere.

We humans supposedly have the best developed communications ability on this earth however we need to do a better job in leveraging those abilities in avoiding, preventing, and resolving conflict and third party intercessors need to be an integral part of the communications loop when communications difficulties arise. In order to make that happen we have to inform, educate, and promote use of third parties. The process of promotion has to include demonstrated competency and results which can only be achieved through infrastructure which supports professionalism and participants have to be able to derive the means to do so by getting paid. Consumers have to see the value of third parties and have to be willing to compensate professionals for their services.

Earlier this month (Nov.2010) I was asked to, and did, deliver a short presentation on communicating with end users or clients. The audience was Project Mangers involved in construction projects in the pharmaceutical industry. One of the first things discussed was a definition of customer service and to ask whether the audience had something to add. The definition I used was pretty standard and ran along the lines of and acknowledgment by the client that what has been delivered was in fact what was agreed upon. Then, there was a question whether or not everyone agreed this definition was correct? After a long moment of silence the audience was asked, how many were dependent on “repeat” business? Almost everyone responded with a raised hand. A suggestion was made that perhaps what we really want to do is to “exceed” what was agreed upon. So, one issue raised by the example is whether our communications with end users or clients is linked to achieving this end – doing a little bit more than expected and whether when we do so do we get an acknowledgement by a client this is so. As a result this launches us into a realm of communicating in a way that goes beyond the mechanistic adherence to the requirements of “contracts”. On the client side it also kind of starts to raise issues about “fairness”. And, finally it brings up a state of a relationship tied into “trust”. So, this led into an attempt to not only define “trust” but how to put it into a context of “project teams” – which are a commonly used temporary organization– joining owner, consultant, and contractor into a relationship – through which construction projects are designed and built?

Communicating with “end users” in construction is terribly interesting because, for one reason, during the “life” of a project  - everyone is an end user. Just think about it – in  the initial stages designers are users of information being supplied by the “stakeholders” in owners organization – in building a factory the operations area is a stakeholder – for a lab it is the quality or research department. They have to provide a clear statement and expectations they want a designer to convert from words into an image about what it’s going to be and what a building will contain and how it will work. A contractor is an end user of designers documents or models – and finally owner is the client and long term users of the building and it’s contents. So understanding how each works and communicates is critical to success. One potential irony of the communications challenge is that project success is most often equated with successful communications during the planning stage of a project so understanding how to communicate with designers and planners takes on criticality. Correspondingly there are communications processes which apply to this complex area of human interaction.

Within the organization I belong to - ISPE - we’re in the process of writing a guide for Project Mangers in our industry and in the people section we are attempting to identify areas for consideration when communicating. We’re also in the process of capturing communications considerations that apply in dealings with contractors and finally between consultants, contractors, and owners.

Our whole premise is to structure communications around the notion of customer satisfaction. Of course success is measured firstly by competence and results – built into those two a priori items are critical elements of communications. However, one cannot exclude trust – what is it – how to establish it – how to nurture and grow it – cautiously, as no one wants to be exploited or taken advantage of - enhancing communications and increasing the probability towards success.

Studying, understanding, and enhancing communications gives us an edge – so far as we know – other of our living travelers on earth cannot leverage or abuse!

Peace on earth and good will towards all. Let’s practice what we preach meaning what…

Fighting wars killing and maiming those who don’t agree, expelling through intolerance, exploiting the weak? Let’s get real here the amount of conflict there is in this world, is it just a phase humans periodically get caught up in or is it an unstoppable trend? Where are we going and why?

Where is the leadership with visions that take root, grow, and sustain. Where are the processes that are vehicles through which goodwill can be fostered? Where are the organizations with the effectiveness to inform, educate, and promote across other organizations?

You know what is bizarre about all of this? The information revolution is avalanching into areas of the world that only a few years ago there was nothing, zero. Are we informing, educating, and promoting peaceful means to avoid, prevent, and resolve conflict in relationships? I fear not. So those of us who are involved in this area need to redouble our efforts to do so in creative ways, leveraging technology, using understandable language, and competing effectively with other messages. To a degree, and given its ubiquitous nature, this means our message has to also be entertaining. As we enter into our second ‘season” if you can call it that, for our series on Hawaii Community Television “Avoiding, Preventing, and Resolving Conflict”, we’re looking at how to do this – and even though they have a role – it’s not through panel discussions – but rather we have to create environments and situations to which people can relate as part of their everyday experiences. So, one theme we are working on deals with people visiting our islands who fall in love with the place and decide to put an ownership stake into property and time here and with that have to face the challenges which come up which create conflict and how they deal with it.

For those of you who are outside our islands you can view our last four episodes on Olelo on Demand in the education and youth tab and searching under our series title. And, sooner or later, as time permits, we’ll compress, format, and populate our web site with our productions – available for viewing on line or downloading for free. Surely there are other equally or more creative ways of proceeding and we’ll search for those means as we go forward.  

Have you just been surprised by a demand for divorce – shocked- stunned- emotionally devastated – didn’t see it coming? Spouse moves out – just leaves – and the world you knew comes apart. Confused as to what to do? This can’t be happening – how did we get to this point – is it my fault – worse yet,  do the kids think it’s my fault?

What to do? Who do I turn to? The relationship is changed, damaged, destroyed - most likely forever. Trust is broken.

When mediating cases in this arena the above become the realities mediators deal with for the people who are now our clients. Often it is the woman who wears demonstrates the feelings above. However, men are just more determined to mask their emotion – except anger and aggressiveness – even though they are just as torn up inside.

At times clients come in stating they just want to get it over. However, I have learned that before launching into the procedures and negotiations there is spade work to be done. Giving clients time to talk, asking probing questions, allowing even encouraging venting often bares underlying issues which need to be vetted before proceeding. Otherwise mediation is doomed from the get go.

Clients can be helped. If the issue is time – “lets’ just get this done” – we need to remind them this is their opportunity to get themselves on firm ground as for example as to what is happening to their relationship – other than the “I just don’t love you any more” or “I need to find myself” assertions which really sting.

Another helpful preparedness issue for clients even before mediation intercession is in preparing for mediation. Providing and explaining to clients the various steps and requirements in the process may be the first time they gain an appreciation for what needs to be done and is time consuming. In addition at least familiarizing themselves with the steps and processes involved relieves stress in off- handedly dreaming up unrealistic assumptions. Clients can, and should, can familiarize themselves with the steps and procedures beforehand through their family courts web site. From the site they can download many of the forms the court will actually utilize including doing sample calculations what they can expect to pay/receive in financial terms in areas like child support. For the assets and income they can mitigate conflict by understanding what has to be listed and they can bring the supporting data behind their numbers.

Then there are the children!  Almost all divorcing parents state the kids are most important but mediations fall apart because of a failure to agree on who gets the vacation home. Too often parenting is held hostage to the financial aspects of a divorce. Kids first??? And then there’s the custody issues – joint/sole – legal/physical – real issue or bargaining chip? – Divorcing parents really need to look inward on what’s in the best interest of the child and manifest their intentions to maintain such focus despite other issues which may come up during mediation. Even though it’s frustrating to me as a mediator it’s the clients role to decide how to proceed.

And finally, when clients come to mediation and they have not come to grips with their emotions which flare during mediation detrimentally to their own interests then the other side may even exploit or take advantage of their former spouses emotional state. Yes, it’s a mediators role to try and focus the parties on the issues – but that does not mean a mediator can control either sides emotions. Tears are often shed – it’s often sad – sometimes tragic – but the presumption is that the clients are there to negotiate on the issues they face and needs which must be filled to go their separate ways – unless the clients can find alternative ways to resolve their differences- even reconcile (extremely rare).

Going from being partners to partnering is almost always difficult. Where divorce is concerned, mediation can play a pivotal role in transforming the former partners, now in dispute, into a collaborative team - partnering, united, in guiding their children into maturity. However, the critical path and resolution to their issues is determined by the divorcing partners themselves with a little help from their ….

I had an opportunity to participate in the 2010 Annual Meeting of the International Society of Pharmaceutical Engineers (ISPE) in Orlando Florida. In one session I briefly presented on the topic of dealing with clients in an owner, contractor, consultant construction project  environment. As the meeting was in Orlando Florida, home of Disney, it was appropriate to note some of the attention they pay to their clients – they know who they are – families of 4 or more – drive 4-8 hours to get there- when they arrive at their Disney resort- everyone is tired – key are forgotten – so, have locksmiths available – or – people forget where they park – so help them by putting a time stamp on their tickets- and know what sections are parked at what time. In a construction project we stressed that repeat business comes not only from meeting but exceeding expectations – the need for fairness in the relationship – the importance of client orientation – that everyone in the project is a client at some point – design firm when looking at scope – contractors when looking at design drawings- client when looking at schedule, cost, quality/performance – the need to treat each other as people- respect, open communications, conflict resolution.

Later I led a session on construction partnering featuring two excellent collaborators – Anthony Trujillo – Project Manager at Harris Group and Kurt Dettman associated with the Project Realignment  Group. Together we provided a group of 20 engineers with a truncated workshop on realignment partnering where we moved owner-contractor-consultant from their “silo” organizations into horizontal work teams of cross organizational executives, project managers, and field engineers working to resolve problems encountered in design and construction of a fictional low earth orbit crystallization experiment. In addition we shared a video produced in Hawaii presenting a project team involved in a partnering project moving towards establishing “trust”. Our effort was designed to inform, educate, and promote the use of partnering in the construction project undertaken by the pharmaceutical industry.

We were extremely pleased by the level of interactivity and the results of both the presentation and the truncated workshop. We intend to take the program on the road for those willing to listen and participate.

The workplace is not just a place we do work but it’s also, and maybe increasingly, a social environment where people, besides doing their job, form and break-up personal relationships. When the two start to intersect too much problems can be very complex. In videos my volunteers and I produce for Hawaii Community Television – Olelo – we have explored this subject with some success. Our topic is fairly simple – a female is a QA person responsible for ensuring documentation is produced to meet strict standards – working in a team where technical people challenge her authority, professionalism, and where there are personal issues behind this tension. We deal with some of the issues this creates for the employer. We deal with how they face these issues through the engagement of a conflict resolution specialist – a mediator. One thing I’ve found is that trying to script the entire dialogue that takes place between the actors is extremely difficult – however – left to their devices actors put their own spin on coping with a situation. They do it so well – it’s better than what I write – that it’s kind of indicative that actors – as people – may have experienced and can certainly relate to the tension created.

So what is a message which comes out of this. The workplace is not just a job. It’s not just where we put in so many hours per day. For many it’s a significant social environment where people do get into significant situations and relationships wanted and unwanted or unplanned with consequences not only on their personal lives but with, sometimes critical, implications on organizations. We inform, educate, and promote the use of peaceful means of avoiding, preventing, and resolving conflict – we also promote the use of professionals whose role it is to resolve conflict in a confidential manner. We believe there are benefits to both the individuals and organizations in having such an outlet available and fully supported by the organizations. In those times where there is a dangerous intersection between professional and personal conflict people need a safe environment in which they can confide information with complete confidence the objective is to resolve their differences and as long as they can do that – let’s move on with re-establishing the professional relationship while finding resolution to the personal issues involved. Mediators know how to objectively create this kind of environment and have the skills to get the information out while working towards resolution of the professional as well as personal issues involved.

Negotiations in a conflict or dispute, no matter how complex, should be, where possible, reduced to interests, issues, and needs. Conflict or dispute is often accompanied by a breakdown in trust and great differences in perceptions of reality.

What is an interest? Is a love of art an interest? Is our love for someone an interest? Is making money an interest? These are all interests. Relationships form to satisfy interests.

How do we express our interests? In art we might buy a print or a painting. In love we may enter into a romance with them. To make money we might buy gold, silver, a security.

What’s an issue? Our painting might turn out to be a clever fake. Our love might be betrayed. Precious metal or security could be worthless.

Issues raise needs to compensate us for our loss. Maybe its money, custody of a child, or some other form of compensation, restitution, and we might even want to punish the party for their transgressions.

A decision to enter into a relationship requires trust. We enter into relationships with lesser or greater existence of trust. The less trust, the more cautious we are in entering relationships – steps are taken to mitigate the risk. The greater the trust the more we abandon ourselves into relationships. When broken the greater the trust the harder we fall. We often start with a disagreement which grows into conflict and finally dispute. We can’t understand why the other side perceives what’s happened so differently than we do.

So what are the practical implications of the notions expressed above when it comes to resolving a conflict or dispute?

1.       Understanding that my interests, threatened in a conflict or dispute, are not necessarily the same as the other sides.

2.       The other side may see very different issues raised in a conflict or dispute than I do.

3.       Each of us will have a different set of needs to resolve a conflict or dispute.

4.       Our perceptions of reality can be so different that there may be very small intersections in the way we see our conflict or dispute.

5.       Broken trust can be a critical impediment towards resolution.

As a result:

1.       Place yourself in the others shoes to try and understand what their interests in a conflict or dispute might be.

2.       Once you believe you can see their interests investigate what issues the conflict or dispute raises from their perspective.

3.       Determine what kinds of needs, if met, could move the conflict or dispute to resolution.

4.       Based on the above explore what their perception of reality might be or is based on by examining their presentation of “facts”.

5.       Determine whether, within the above set of parameters, it is possible for you to leverage a position which can move the conflict or dispute towards resolution.

6.       Double check whether and where your own interests or issues or needs or perceptions of reality intersect with those of your opponent.

7.       Develop your strategy for the negotiation.

I would liken the above to being audience oriented in a presentation. Negotiation is often an information game – the side with the better information prevails. Showing understanding of another’s position is not only a source of strength it can assist in establishing a new kind of trust in adversarial  situations. Rebuilding trust is often better to use problem solving rather than mounting a frontal attack with winner takes all. Just don’t be a fake, be real.

In some cases the desire to punish or seek retribution is very strong and even overwhelming hindering or destroying problem solving and reaching resolution in mediation. At times this drive is overt while at others it is subtle and only reaches its peak during the coming to agreement phase of mediation. The type of case where this happens is often related to the workplace. This should not come to surprise because for many the workplace is where people spend so much of their time, dedication, and effort. The workplace is a place where we have status from janitor to senior executive. Being suspended or fired is a harsh often catastrophic blow to ones sense of self esteem. It is bad enough when it happens its even worse if significant time goes by without an ability to be heard. The anger, grief, and emotional toll often grows along with the bitterness which is often directed at specific individuals who a person feels is responsible for their predicament. Respondents, employers may not fully realize the toll to an individual who has been suspended or fired which can lead to significant miscalculations on what it is going to take to resolve a former employees complaint.

If the desire to punish or seek retribution is latent, another words not on display, during mediation this can also mislead mediators into thinking that agreement can be reached and quite a bit of time is lost, expectations built up, and positions will harden even further.  The other dilemma which can occur is that a complainant can be triggered to take a position to punish or seek retribution because of something that happens in mediation. It’s a hair trigger. One example of this is that an employee who already has this thought in mind feels they are being further demeaned during a mediation – for example in a workplace dispute there is no offer to rehire from the employer – triggers the I must punish the organization and the person who caused me this harm.

On the other hand consider the difficulties facing an employer. They may feel that a complaint has no merit, that the action taken is fully justified, but is still willing to work towards some sort of agreement including money, but not rehiring for any of a variety of reasons. Why should they go for punishment or accept retribution towards one of their employees, often a supervisor? So they offer a modest amount, often lost wages during the period the former employee had to search for a job, but no more.

The response is it isn’t enough, I don’t want this to happen to anyone else in our workplace and I want the sob who caused me being wrongfully fired – reprimanded or fired themselves – the money doesn’t mean anything to me.

How does one read this from a causation stand point? Clearly it present everyone involved with a difficult set of choices. For the employer – try and talk them out of this position – walk away from the mediation – consider offering more money – etc. For the mediator – keep the parties talking, exploring, searching for common ground on this issue- declare impasse – get creative – provide a mediator suggestion – etc.

Each case is different as are the people involved. There are no easy solutions. Recognizing that a complainant has this almost absolute need is at times difficult and even if made known there’s always this hope we can find a way to soften their position – and – it doesn’t happen. Where it’s latent and a decision in regards to taking this position is there but latent that can be a different matter. One can work on determining and avoiding and preventing triggering the depth of emotion involved in these situations.

One gets better and better at this as time and experience grows.

Have you experienced the following:

“Calm down – why are you getting so angry?”

Responded with:

“Now I’m really angry …..”

Anger is one of those emotions which seems to easily escalate – impacts both the person who is in such a state as well as the perceiver of the anger. Further it seems to dwell in the head residually for quite a while . It may be the residual impact is longer in the recipient of anger than in the angry person.

Escalation takes many forms, sadly, in some cases becoming physical in addition to the emotional impact the recipient has to endure.

The sad part about it is that angry behavior can be repetitive and increasingly intense when the same buttons are pushed. Angry situations between two people can be recurring and grow to the point that even in the presence of a third party the two can’t help the outbursts.

Angry exchanges are non-productive – eroding relationships – even destroying them. The exchanges can become habitual even though both parties are acutely aware of repetitive situations. The scenarios in which they occur can expand.

Since anger can become habitual it’s questionable whether there is too much hope in “controlling anger” it’s more like changing habits – as for example not using “calm down – why are you getting so angry?”.  As for every habit – breaking one is no simple task. It’s also not enough to be on guard or alert to it.

Now keep in mind anger has its triggers so the breaking of habits takes two people – if that’s where it is occurring. Removing the causes of anger as well as the exhibition of anger and it’s escalation.

As a third party mediator recognizing anger and how it is being exhibited in a mediation  can be a key to moving people towards problem solving. The presence and participation of a third party does tend to provide a dampening effect as people tend to be more careful, more aware, more willing to at least act less angry but that doesn’t mean that it won’t recur when the people are on their own – especially if it is as yet an unbroken habit. Sometimes we can remove a cause of today’s anger – it’s up to the clients to break their habits to find true peace.

I know improvisation when I see it. But in trying to define it I had to go to the internet and the part of definitions I liked had the following words in it “…without preparation”. Be it an action or a set of words - seeing it in action can be awesome.  One of my favorite improvisations occurred during a teen conflict mediation. So there it was, I’m in a conflict situation and I have carefully prepared myself as a mediator to sit between parties and work with them in problem solving their issues. There I am going through my steps allowing each party to have their say. I notice that one of the parties isn’t saying anything but there’s something about his body language that says it all. So when it is his side talking I turn to him and say “sir, it looks like you have something to say” and not only does he have something to say, what he says is so dramatic it turns the case on its head and resolution is reached within minutes. I’ll never forget that moment. It wasn’t rehearsed. It came as a result of the moment, the situation, the growing feelings – all I had to do is tap this source.

It went something like this “ son (to a teen who attacked his son) one day you’ll be in a situation (and he went on to explain the surgery his son had to endure without him, the father, knowing whether his son would live or die) and perhaps then you’ll know what it feels like to be a dad”. It was one of those unforgettable moments and the greatest improvisation I have witnessed. Now, most improvs are not nearly that dramatic – some of us have this talent – we can practice it – even perfect it – but even if we can’t, there are times when we can all use improvisation in critical situations.

Consider the following- a conflict over money – I have the range within which I am willing to negotiate – a point at which I am willing to walk away from the table – and I look across the table and see that money is not really what’s most important to the party across the table. I can leverage that but I have to improvise a proposal – an act which if offered properly will satisfy the aggrieved party. Am I reading the situation correctly? Do I offer it? How do I couch it? Where do I start?

As in any situation  - timing is critical. Being right on is best. Letting the moment pass can rob me of an opportunity.  One of my colleagues “acting” as a defendant in a learning disability situation video production we did some months ago totally improvised a resolution of a situation that the actress playing the plaintiff genuinely thought reflected the best way by which to resolve our hypothetical case. The claimant asked for thousands of dollars in compensation and defendant was able to resolve the issue by offering the plaintiffs disabled daughter a way to demonstrate her skill, recognize her abilities and accomplishments, and benefit the imaginary school involved. So again, we had a script but my actor, an accomplished negotiator improvised a wonderful solution almost all of us bought. One of our actors thought the amount of money offered was insufficient – until it was pointed out to him that getting punitive damages is very difficult inc cases like the one we were producing for our video.

I don’t know if I adequately explained what an improve is, but hopefully you are sensitized and will at least be able to recognize it so that next time you’ll be able to do the same and succeed.

By the way you can see the video soon as it is put up on our video website at http://www.avoidpreventresolveconflict.com/videos.html .

Has anybody escaped a poor choice of words or phrases?  Maybe the English language just offers too many choices for the same thing but when used can lead to unintended consequences. How many of us multitask while we’re writing e-mails and just after pushing the send button we realize we have used words which mix our thoughts together and what was meant to be written as positive reflection or comment, when read, turns out to be negative? Then comes a question about what do we do about it?

In any relationship saying the wrong thing can be damaging. In a conflict situation it destroys a moment or the whole negotiation. What’s are examples:

In a marriage encounter session, where couples reveal and discuss their feelings, there’s a question about what you as a husband feel is the best thing about your wife? Answering you feel she makes a good Mom for your kids is not the best choice. The encounter is to investigate how you feel about each other.

In an acting situation where an actor also picks up another actors part and dialogue and you want to praise them for their ability to do so with excellence does not read that way by saying: “with the other actors support and ‘some’ editing we were able to get 4.5 minutes of good video”. Those words convey a very negative message.

In a mediation one can think of many instances of words which do a lot of harm:

She works a lot but that hurts her ability to be a nurturing mother (when the real truth is she not only works but also does all the child rearing).

He has trouble with the truth (another way of saying he’s a liar).

She doesn’t know what she wants (meaning she doesn’t agree with me).

He’s just a part time worker (without revealing he has 3 part time jobs).

All of us inadvertently put our feet in our mouth.

So, what do we do about it? Accept the consequences? Retract what has been stated? Convince ourselves what was said was really what we meant to say? Deny it? Try and salvage a bit of dignity? Suffer in silence?

Unfortunately once spoken sometimes there is no retrieval, no going back, no retreat. That’s why a third party intermediary is often a good filter, a good cross check, a good defensive mechanism to keep, no matter how tempting from saying the wrong thing. One way to utilize a third party is to go into separate session with a mediator who will often reflect or reframe what you’ve stated so you can better hear yourself in the moment. A mediator may ask you questions which might very well make you rethink what you’re trying to say. And, no matter if the third party is a mediator or a trusted friend going over the words or phrases you intend to utilize might save you from one of those “that’s the stupidest thing I have ever said”, moments all of us have in a critical conflict situation.

In our field we often talk about reaching impasse – neither side is willing to budge. To me a sub-group of this scenario is when one side, mine, is willing to collaborate and problem solve while the other is intractable – won’t budge from their position and attempts to overwhelm me through aggressive behavior.

When in conflict I don’t know how many times you run into people who are just intractably committed to “my way or no way” – “I win you lose” ---or else. And, how many of us cave into such demands? The first time I remember having this happen to me, years ago, was in a training session where we were paired up with another member of my company who essentially bullied me into accepting his position in a training exercise! Since he was senior to me I was uncomfortable in returning the salvos fired at me. The next one I remember is in traffic court – where a judge quickly disposed of my case because I made some lame brained argument “it wasn’t me” and “I didn’t do anything wrong judge- I wasn’t speeding”. Those were not only embarrassing moments but left me with a feeling of anger, of loss, depressed. Have you felt this way?

Well in my first case above I was totally unfamiliar with the steam-roller approach to negotiation while my counterpart obviously knew how to make his kill. In the second, well never mind, we all go through one of those sinking feelings the judge just isn’t buying my argument.

So, now I sit between people and work with them to resolve their differences and watch them struggle with these win-lose scenarios created by an overpowering individual. And, yes sometimes one party is holding all the cards while the other has nothing with which to bargain so outcomes like this are perhaps just as they should be. But, every once in a while you wonder why someone agrees to terms as dictated by another party. “I just want to get this over” is an all too familiar refrain in those cases.

What’s a remedy? Learn to bargain, get to William Ury’s “No”, be prepared, set a walk away set of terms in your own case, and consider what is your best alternative to a negotiated agreement or BATNA? Many of us claim to do this but we just don’t have the discipline to be able to execute our negotiation in this manner. We succumb to the others charm, aggressiveness, and other tactics – sometimes we just get fearful of the other side – as in a case where our opponent is represented by an advocate who’s a “shark” – predatory, power driven, or in the worst case knows he or she knows there are fees to be accrued during discovery and the case can be settled on the court house steps just before trial.

Once again as we’ve written before we get to a point where we have to understand ourselves and model our behaviors in a way which allows us to execute our negotiation strategy. We have to prepare ourselves in a way where our thoughts are not tied into knots by an opponents aggressive approach.

Finally, we have to have a case, something to stand on, a rallying point. If we don’t - we’ll probably not be able to escape our reality, even there are people who can have no case and still do quite well in a bargaining situation – but most of us are probably not in this league – so watch the other side and try not to get fooled. Sometimes there is too much of a power imbalance and many mediators handle these situations quite but there’s no substitute for your recognition of someone just trying to overcome you through brute force – one expression I’ve heard in divorce situations is “tough love”. It’s anything but “love”.  Learn or know your opponent and keep in mind that in certain situations aggressive negotiators have traditionally done better than collaborative ones. However, the impact they have on relationships? – well, that’s another story.

We all deal with stress differently. Some of us are good at it while others are not. Regardless, we can all get better by modeling our behavior.

Amongst the things I’m learning from producing videos on avoiding, preventing, resolving conflict is the power of modeling behavior – particularly when dealing with difficult people and/or difficult situations – or recognizing when we are being difficult.  For our videos we create conflict scenarios and give our actors scripts – however, they are allowed to improvise and encouraged to demonstrate behavior they feel is appropriate to a situation.

 We produce these encounters. There are two lessons learned. One is that given the freedom to infuse their own behavioral response into our vignettes - results surprise. The other – given enough context and lead time they can achieve a producer scripted response – kind of demonstrating that people can model their behavior.

Let me give you an example of a surprising result - one of my favorites - discovered when we did an episode on parenting.

In a discussion between divorcing spouses we wanted to demonstrate a reaction to a statement by one spouse to another which ends with “you are not going to try and take my child away from me are you?” My intent was to show the hurt a spouse would feel if that is the feeling they perceive. Instead our actor showed anger. Neither feeling is wrong or right. However questions which arise in this conflict situation are what is the impact and reaction by the other side – which one will work better given the circumstances of the discussion, negotiation- which one has a better chance of achieving resolution?

On the other hand – and granted they are actors – they can more readily act out a producer desired  emotion. But I’ve seen real players in situations act out, convincingly, a sorry state of physical and mental health to gain postponement of a proceeding, meeting, etc. to gain an advantage. One sorry person stumbled into the courtroom seemingly dazed, incoherent, gain a postponement and observed shortly thereafter in a parking lot just as jolly and coherent as can be! I’m not suggesting you act in this way –it’s unethical and cowardly – but I’m relatively sure they modeled this behavior before entering the chamber.

So how does one model Behavior?  Here are some thoughts.

You probably are not an actor – you are the character! Know yourself.

Understand the situation in which you find yourself.

Understand what the objective at the end of the line.

Prepare and spend some time focused on behavior you feel is going to “play” well towards your objective.

Do I need to exude confidence, anger, sorrow, be assertive – you’ve seen all of this on tv but conceptualize yourself  on the screen – the mirror.

Do a few trial runs visually – verbally – combine the two.

Have someone observe you during preparation.

Practice as often as necessary to make it you.

You’re not playing for the Academy of Arts – you’re exhibiting yourself the way you modeled yourself.

The show must go on – next – learn to improvise – that takes work as well.

We’ve just finished filming our version of “prisoner’s dilemma – a classic case study worthy of consideration of anyone dealing with trust. In this dilemma we encounter a prosecutor making the same deal to two prisoners – accomplices in a crime. They were arrested and held separately so they have not been able to communicate with each other when faced with the following offer:

1.       Talk – give the police all the information about the crime. If you do so and you’re accomplice doesn’t – you go free – accomplice goes to jail for a long time.

2.       Don’t talk – and your accomplice does talk – you go to jail for a very long time – accomplice goes to jail for a very long time.

3.       You both talk – you’ll both go to jail for a somewhat shorter time – both of you will serve time.

I wrote a script – letting the actors improvise. The action took on its own life. The prosecutor became more descriptive of the options – the prisoner became more responsive as the options were presented.

We worked in a prisoners response – he talked – then our actor added reflections about what he had just done. We were really amazed by the emotions reflected. I can’t wait to show it to our community and beyond.

A prisoner’s dilemma resonates because in every relationship  - sooner or later all of us run into choices we have to make when something goes wrong – communications break down – we are confronted by harsh realities about the consequences – we have to consider “blame” driving a perceived benefit – a betrayal of trust – suspicion about what the other side is going to do – decision made – relection – remorse – a sense of failure.

If we’re smart we don’t do something unlawful – break a contract – separate – a third party decision maker gives both of us a set of options creating a win lose – lose lose – decision point. We don’t know what the other side is going to decide.

So, some seemingly simple rules – establish and live by what the “rules” are in a relationship – don’t break them. Don’t be the first to abandon communications. Don’t resort to sanctions – I’m going to sue – I’m going to seek a divorce – in an approach to a relationship problem without considering what happens when we do – we are getting closer to a prisoner dilemma.

And if a relationship needs help - consider the pros and cons of turning over decision making to a third party. Consider working through a problem. If intercession is necessary consider the use of a neutral third party who works with you and your relationship partner where you maintain choice and decision making power. That can be a mediator.

For a variety of reasons I’m focusing on construction project teams. It’s not just because I spent most of my corporate career involved with project teams. I find construction project teams to offer a variety of opportunities and challenges to building and modeling collaboration. Let me tell you why and what I’m looking at. See if it applies to your world.

In my career, construction project teams, consisting of a cast of people from appropriate areas on an owners or clients side are assigned to a team. However, they are representatives of their area. They do not loose their identity nor responsibilities for their areas. If they are from quality they are there to ensure the team meets the requirements of their area. If they are from operations they are there to ensure that the team delivers what operations requires. Although they report to a team leader they still retain their reporting function to their departments hierarchy. After a project is completed they return to their department.

A construction project team contracts with, and utilizes, contractors who sign on to deliver their “products” and services to the owner. If they make equipment they must build it to the specifications meeting the quality and performance, on time, within the budget set-forth in their agreement with the owner. As the construction industry is so fractionated, in complex projects, there are many contractors and sub-contractors involved.

Each organization has it’s own culture, it’s own procedures, it’s own way of doing things. It’s hiring practices and the people they use are chosen for what they bring to the organization and assigned to a particular project by their choice.

A project team has a leader, team members, and a myriad of people doing the actual work. The project team leadership team serves as hub and nerve center during design, construction, and delivery of a project.  At the center of a team is a project manager – an owner representative – tasked with leading their team to success.

The team members, from the various owner departments and from contractors, “report” to the project while retaining their functional reporting and accountability to their own organizations. The project manager often reports to a group of senior executives responsible for capital projects undertaken by their company.

To me, construction project teams are a microcosms of many other organizations found in other contexts. Take our form of government. People sent to Washington come from the states. Even though they are in Washington they are accountable to their constituents. After that, in today’s political climate it becomes a little fuzzy whether or no they are joined together for a common purpose, but hopefully we’ll see the day when that happens again.  Never mind, back to our team.

A team has to establish itself and function as a unit. Although there are project managers who can still manage projects in a way that they make all the decisions, increasing complexity and risk, push towards collaboration – working together towards a “common objective” – around such principles as getting the project done in time, within budget, and meeting the performance and quality requirements et forth by an owner.

Since there are people involved issues arise. Most are professional issues involving such things as technology, software, performance, quality, etc. There are also interpersonal issues involving disagreements between team members. At times team members have personal problems, some of which impact their performance or are brought into the workplace. A leadership team has to deal with issues proactively while keeping a focus on project objectives.

So, what are we doing. We’ve begun to focus on a construction project team where there are issues. How are we doing it. We’re writing vignettes or stories about some issue, documentation, workplace romance, decision making, etc. and turning them into videos we broadcast on Hawaii Community Television. We think the use of this form of media is ideally suited to explore this area. This exploration is part of a series we call Avoid, Prevent, Resolve Conflict. It’s an all volunteer effort. We started from scratch and to the credit of our actors the quality of our episodes continues to improve. We also provide discussions on the topics we are covering with people who can provide insight and well reasoned thoughts about what is going on. It’s a wonderful effort and we hope what we present is consistent with avoiding, preventing, and resolving conflict through peaceful means – and leads to modeling of behavior not only in construction but in other areas.  

Overcoming Barriers to Resolution – It’s like a team in action in a beautiful game.

Since the World Cup in being played our in South Africa – I thought I would serve up the following thoughts of fancy.

Relationships are about people and consequently so are conflicts and disputes. In trying to get to resolution people create barriers which at times require the intercession of mediators. What kinds of barriers are created and how do mediators work to overcome theses barriers?

One barrier is emotions. People get angry, frustrated, hurt, lose confidence, become stuck in positions and at times seemingly illogical.

Another barrier comes from a lack of communications skills.

Yet another is a lack of listening skills.

Another is a feeling of power or lack of it.

And a final example is a lack of a vision beyond their own perceptions of what is the truth about the matter. They often say – we have to get to the truth – and - when we do we’ll see I am right.

So, one can attempt to summarize a mediators role with regards to the above by saying:

A mediator assists the parties by focusing them on the issues and away from the emotions – provides a channel by which people can communicate with each other through him – gains the persons confidence so they “hear” – checks for and manages power imbalances (there is a limit) – communicates that even though one persons reality is another persons illusion – such perceptions do not preclude problem solving, identifying alternatives, finding mutual agreement.

There are however, other factors which come into play. Being a mediator can, in my mind, be analogized to playing in a team game, say soccer or as the rest of the world calls it - football - with your clients opponents being like the issues listed above – not each other. You have to get a feel for and get in rhythm with your team. If you’ve played team sports you know what I mean.

As a mediator you have to get to know your players, their skills, their weaknesses, and how they are playing at this moment in time. Far out you say!  Well there’s more. As a mediator you have to know yourself at that moment in that particular situation – and react.

You also have to know your opponent – are they going to play fair when you exercise your skills – or are they going to play dirty – constantly fouling? They can score – but your team has to get one more point than they do in order for there to be a win.

There is no referee – but there are ground rules. There are no substitutes on your side – but unlimited subs on the other side.  You have to know when to call for injury time – and when to encourage your players not to feign injury. You have to create a sense of team play.

At times you have to point them and remind them of where the goal is at – that it takes team effort to get there – create the desire to score – to defend – who the opponents really are.

Playing on a team – developing a sense you can score – scoring – accepting goals scored by the other side without losing a sense you can score – scoring- winning is euphoric. That’s what can and does happen in mediation. In some cases a mediator is like a coach – in other situations - a mediator has to take the field and serve up the ball or step in as a goalie for the team to score or defend against a threat by the opponents.

Mediators are precluded from playing dirty no matter how dirty the other side plays. Good luck USA.

Blood is thicker than water is a cliché which is often used to describe relationships. But just like things can go wrong with blood so it is with blood relationships. Issues can arise which are ignored in hopes they will just simply go away. Instead they accumulate and over a number of years they cause clots which hurt the heart and then in a single event they get loose and can be fatal to a  relationship. So, when relatives in conflict or dispute come to mediation it normal for there to be significant history, complexity, a mixture of emotions, deeply seated resentments and different perceptions of even the simplest events. There is denial. There is blame. There is anger. There are deep gaps and disconnects impacting the ability of the relatives to see things in other than their own light. And as hard as mediators try for people to move into the present and work towards the future in blood conflicts there is often a cycle of returning to the past unveiling new resentments. In this environment ground rules are critical. Keeping a steady bearing is a constant challenge. Working with the relatives in their struggle to feel a sense of progress, encouraging, probing, keeping a tally of what has already been discussed, providing reminders, allowing the parties to create a direct dialogue, measuring whether what is currently being said has a bearing on what’s at issue, seeing if there’s some sense of acknowledgment by the other side.  These are all things which have to be taken into account. The most critical thing is not to try and psychoanalyze, unless a mediator is a psychoanalyst, but sticking to problem solving. Mediators can problem solve. It is often difficult to identify what problem to tackle amongst the many resentments which offers an opportunity to take a tentative first step towards resolution. The relatives in conflict need some anchor no matter how small on which to halt deterioration of their relationship. Once a seed is sown and germinates the process becomes easier to manage. When money is involved it can be used productively or as a weapon to exert concessions. What a mediator needs to keep in mind is that behind the conflict and dispute there are individuals who in other relationships or environments may be totally functional or dysfunctional and these other relationships may have a bearing on their behavior in this particular case.

What kind of conflicts occur? Over money – over letting go – over different perceptions about lifestyle – over relationships with other relatives – interference or participation in business dealings – over property – over estate planning – over new loves and relationships – over dependence or independence – over blame for perceived or actual failure attributable to their relative – over a combination of the above.

Although these mediations are often difficult – reaching some level of accommodation, stopping or at least slowing the continued deterioration – forgiveness, even reconciliation – make these mediations extremely worthwhile. Just don’t count on too much – the conflict didn’t just happen – it has built up and it takes a lot for the parties to start to understand each others perspective in a new light – and often because many other approaches have not worked.

Trust

“Trust me”. How often have we heard that and just not believed it? Moreover how often have he heard it, believed it, and then deceived?

Trust leaves us vulnerable to the actions of another. Trust is often built on the reputation of another, a need we have to get something done, a belief that we have undertaken some course of actions towards a common objective.

There is the trust we place in a merchant, an attorney, a medical professional, which is transactional in nature. We buy a lawn mower because of its name, reputation, and assurances by the seller it will meet our requirements for mowing the grass. We hire an attorney to advocate our position in a dispute. We go to a medical professional who is reputed to be a specialist in what’s ailing our knee.

There is trust in a marriage, a business partnership, a membership in a Church which goes beyond a single transaction. We trust there are common interests that we share on an on-going basis and to which we can contribute while also receiving benefits from these relationships. We share our homes, our lives, have children in a marriage. We enter into a partnerships because together we can build a business and prosper while sharing the challenges. We become members of a Church because we believe in the same God and the concepts which are inherent to the practices of a religion.

Broken trust can be a tragedy. Harm can be done and suffered. Trust can be broken through an accumulation of little things or it can be broken it one fell swoop. Numerous deceptions or one big one can result in a broken trust. Disagreements, conflicts, and disputes can break trust and ruin relationships.

Shaken or broken trust presents a significant challenge to third party intercessors like me. One interesting point about trust is that it can coexist with distrust. In other words we may trust a person in this area but we will not trust a person in another area. For example we may trust a contractor to fulfill his contract but when he comes to us and says he needs a bridge payment because he hasn’t been paid on another job we tell him no because we don’t trust that he is going to pay us back on the loan. Or take someone we are mentoring by giving them assistance in navigating through a bureaucracy and they ask for money to pay a bill. Should we lend this person money? It’s a more difficult call.

Breaking someone’s trust or even creating a perception we aren’t trustworthy can also have adverse consequences in our community, profession, or even Church. A belief that we are untrustworthy can deny us referrals, make us lose promotions, or lose friends.

So when there is an issue of trust involved in a disagreement, conflict, or dispute each of us has to take stock of the potential implication of broken or lost trust and consider how much of a factor it should be when we are seeking resolution. Trust can result in forgiveness and even reconciliation but each takes action and skill. Apologies can be powerful factors towards forgiveness or reconciliation. However here again there are different forms and means of apologizing and we need to understand what a particular loss or broken trust calls for and how to deliver our apologies.

Don’t leave it to a mediator to try and figure out where a trust issue lies. If you are concerned about it let a mediator know it’s one of the factors you are concerned about and want to work on in a mediation. Sometimes trust can be more important than the money involved in a mediation.

The importance of communications is stressed in so many arenas. There are countless articles, books, blogs, etc. What is lacking is an understanding of the importance of knowing when to call for help. As communications harmony is disrupted by disagreement, grows into conflict, and results in dispute there isn’t enough focus on avoidance or prevention. And,  in the case of avoidance there isn’t enough emphasis on the increased risks of ignoring disagreements and confusing such ignorance with avoidance. Avoidance requires activity not inactivity. Insofar as prevention also requires pro-activity, both avoidance and prevention require recognition that disagreements will occur in every human endeavor.  Even where there are carefully crafted contracts in place it may not be until a trigger is pulled that the processes of resolution in a contract is really tested and to the parties dismay they turn out to be  very unsatisfying and too often unsuccessful.

Parties entering into agreements need to shed their reticence in discussing and preparing for inevitable disagreements in their relationships. Mediation and facilitation offer such opportunities which include training participants in a relationship or series of relationships how to deal with disagreement, get help in conflict, and provide third party intercession in disputes. In the construction industry a name for this opportunity is called “partnering”.  It is often applied to owner-contractor relationships. In such arrangements a key is to enter into an arrangement between parties where they establish a common set of objectives and develop a collaborative set of processes which go across organizational boundaries in communications, sharing of information, and processes dealing with avoiding, preventing, and resolving disagreements before they become conflicts or conflicts become disputes, or disputes become post project claims.

Over this summer I will be researching and reporting on this subject here, in my Blogger blog, as well as producing a video on “partnering revealed”. If you wish to participate in this endeavor do not hesitate to let me know by using the contact features on this blog.

So, whether it is in a pre-nuptial agreement, a business contract, or a business with client relationship don’t just ignore the inevitability of disagreements but act to create and test the means by which they will be avoided, prevented, and resolved and use mediators and facilitators as enablers in making and maintaining  relationships collaborative thereby retaining harmony and achieving sucess.

Separate sessions in mediation mean a mediator meets separately with one client. In a mediation with two parties a mediator meets with one party separate from their opponents. Where there are multiple parties a mediator meets with one at the exclusion of the other parties. Separate sessions are often called caucuses. Their purpose is multifold.

Emotions may be running high between parties and it is prudent to separate the parties. There may be information a party wants to share with a mediator without the other party being present. A mediator may wish to talk to one of the parties to get clarification of a position or point made which is not very clear. In any case, there are a variety of reasons why a caucus is advisable, even necessary.

In these caucuses information exchange is usually quite free, certainly more free than in joint sessions. A caucus opens the door for questions from a party, a mediator, or a back and forth. There is little chance of interruption. Listening can sometimes be better.

However, separate sessions lend themselves to potential misinterpretation by the non attending party , particularly if a long time is involved with the other party while the non attending party is sitting there trying to be patient. A mediator is well advised to keep the non-attending party informed about a caucus, especially the time.

Without the check and balance of the other party, a caucus sometimes leads to statements which are not verifiable, putting a mediator at risk of losing credibility should he convey false information in a way which seems to say, I (mediator) accept a statement as true and believe you (the non-attending party) should attend to this matter (drawing a mediator into the conflict).

Caucuses can and do aid a mediator in understanding a case, understanding a clients issues, perceptions, and in making suggestions for consideration by a client in advancing a mediation towards resolution. However, a mediator is well advised to consider the impact of a caucus on the non attending party and be guided in his actions by ensuring his approach is fair and balanced. When presenting what is heard or learned in a caucus   as a “perception” a party has about a situation is a healthy attitude for a mediator to have about what he is told, leaving validation to the other party. Many times the non attending party will tell you the other side is lying but if that’s their perception then that is what’s important for a mediator to know. He can then take further steps in caucus to help the clients towards a common understanding of an issue as far as the parties themselves will allow.

More details on ‘caucus” will be available via http://preventavoidresolveconflict.blogspot.com/ .

Every competition, even mixed martial arts, have ground rules. In mediation one cannot overstate the need for civility and respect as the cornerstone for making progress towards agreement and resolution. That’s why you’ll see multiple entries in this blog on this subject and I’ll address the subject more fully on my blog at http://preventavoidresolveconflict.blogspot.com/ . Why are ground rules so important?

People coming into mediation are in conflict, emotions are running high, trust may be damaged or nonexistent. Direct negotiations are failing. What are they in conflict about? Their behavior in a relationship is being impacted because disagreements have grown into conflict or into dispute. The relationship is in jeopardy. They have called in third party intercession in the form of a mediator who has no power except over a process tailored to meet the needs of the individuals involved. Even there may be aspects of the process selected which does not fit the individuals involved. The last thing that clients and mediator need are a breakdown in process and focus on issues and needs overwhelmed by emotions, abusive language, verbal attacks, chaos.

So, ground rules serve as a basis around which party and mediator interaction are guided to stay focused on issues rather opposing parties on each other. Ground rules can also provide a critical element of safety for the participants. They also provide a framework for the dialogue which is to take place. What are some examples of ground rules?

Do not interrupt each other. You’ve probably already done that even before you engaged a mediator. What makes a person think it is any better with a third party present. It hurts listening to what the other is saying. It hurts the ability of the speaker to complete a thought process which may contain critical information which just does not get conveyed. It is disrespectful and may inflame the emotions of the other party and lead to a breakdown of communications.

Don’t attack each other. Problem solving is difficult to do if either or both parties are in an attack mode. The other party may reciprocate, become defensive, or just shut down. It leads to a conclusion that the problem is the other party which often times it is not.

If you need a separate meeting with the mediator ask for it. Joint sessions can and do get very difficult. A party may need a sounding board. The mediator just doesn’t get it because critical information is missing but a party does not want it disclosed to the other side. There are a variety of reasons why separate sessions or “caucuses” are extremely useful. Likewise a mediator may ask for a separate session with a party or both sides separately for the similar reasons.

Ground rules play a critical role in mediation and parties are well advised to understand ground rules and to discipline themselves to adhere to them.  It’s not like a court room where a judge does have authority a mediator does not possess. Ground rules are meant to ground mediation in collaboration and problem solving. In such an environment chaos due to lack of civility and respect for each other often create insurmountable obstacles.

Mediators are supposed to be neutrals and not prejudge people. But if a client is lying through their teeth, trying to manipulate the process, heavily influence me as a mediator, what then?

You may have heard a reference to mediation as a license to lie. When people come into mediation they do not take an oath to “tell the truth and nothing but the truth”. Notes taken during a mediation by a mediator do not survive beyond the mediation. It is rare for a mediator to be called to testify. In fact there are specific laws or rules of evidence which preclude calling a mediator into court and parties pre-agree not to do so. So, what’s to stop people with little regard for ethics from lying at mediation?

As mediator I can take a position that one party’s lying is the other sides problem. However , I do not care to be lied to or manipulated. I am not tied to a case like lawyers needing a courts permission to withdraw from a case. If I feel one party is lying through their teeth I may, and have, as politely as I can, withdraw from a case. This is not to say that for those rare times when I do withdraw from a case it is just because of lying.

The other fact to consider is that people on the other side of a dispute are pretty good at detecting lies.  Sometimes they even assert everything their opponent says is a lie. Sometimes you have to take these assertions with a grain of salt as well but I can’t ignore them. At the very least such assertions indicate the level of the lack of trust.

And finally, for a person who is lying and asking me to convey bogus information to the other side just makes it more difficult for me to be effective. So they are just hurting themselves and their negotiation position. Then there is the omission of something material, so they are not lying, but just using me to convey carefully selected information, with omissions of material facts, which they hope, coming through me, will be convincing to the other side. Their doing so, once again, effects not just their but also my credibility with the other side. For me, this is where probing questions, reframing, and reflecting what a party says is critical. Of course, if they want me to hold something confidential from the other side I am bound to do so. Just don’t ask me to be a pawn in an effort to manipulate opponents. It’s like cutting “fugu” too close to its source of poison is a danger to be avoided because you can kill a mediation.

In conclusion it’s not a good idea to lie, be manipulative, or try to influence me in a mediation. Ultimately it impacts not just my ability to be effective but undermines or destroys their position in the eyes of their opponent. Such actions can and do lead to mediation failures. Such failures further erode trust and in maintaining choice in utilizing mediation and ultimately in reaching mutual agreement without litigation.

When opponents are able to participate in a joint session with all participants present it is quite common to allow each party to make an opening statement. The format and content of opening statement varies.  When there is no preparation work done prior to the session it is common practice to ask “why are you here and what is it you hope to accomplish in this mediation?” When there is preparation and a “facilitative” approach is used the opening statement is normally focused on “issues” and “needs”. In these cases a mediator works with each client to narrow their focus on identified issues as a means to facilitate collaboration and find common ground. In the “why” and “what” approach the early part of a mediation is spent on identifying issues and needs before moving towards identifying common ground, closing gaps and disconnects, and moving towards resolution. The "why" and "what" approach runs a greater risk of being haphazard, less well thought out, reaching agreements which may more easily fall apart. The “why” and “what” approach is quite suitable for cases which are not complex.

During preparation I endeavor to make clients more like a chess player, meaning, think beyond one move and try to envision the entire board and game. The opening statement can play a pivotal role in this regard.

I will address opening statements more thoroughly and provide examples in my blog at:

http://preventavoidresolveconflict.blogspot.com/ .

When teens are in dispute and adults get involved is it good to hold a mediation with both the teens and adults present? Are thee alternatives?

Before considering the benefits and drawbacks consider the three examples which follow:

1. Two teens have a dispute. One teen has a following and together they intimidate the other teen to the point she calls her father who shows up on the school grounds to protect his teen (John). There is a confrontation between the father and the teen causing the intimidation on school grounds. School officials get involved, police arrive, and the parent is escorted off the school grounds. The parents of the teen causing the intimidation (Brad) are called by the concerned father and they argue. They agree on mediation. In this case John has already confronted the intimidating teen and his parents Brad. John brings his daughter while John does not. Good idea?

Here’s what happens. The parents do all the talking, negotiating, deciding on an agreement without the input of the intimidating teen. John lets it be known that he has already taken punitive action against his intimidating teen.

1. One teen assaults another teen. Long afterwards issues simmer and look like they are heading to the boiling point. The aggressors parent (Alice) asks for mediation in the hopes of preventing another fight. The victims parents (Butch) agree. Both teens are present. Good idea?

Here’s what happens. Butch reveals a very serious physical problem with his teen and the potential (including fatal) consequences of another fight. Both teens recognize the seriousness of the problem and reconcile. Both parents are very supportive.

2. Two teens are part of a family involved in a neighbor with neighbor dispute. The neighbor is an elderly woman (Rita) who has lived in the area forever as the teens and the parents (Dave) are only recent arrivals in the neighborhood. Dave and the teens are present. Good idea?

Here’s what happens. Dave’s teens are given an opportunity to provide their perspective and are disrespectful of and offensive to Rita. Despite lengthy discussions no agreement is reached because Rita is so offended by what the teens said, her trust in Dave and his teens is totally broken. She is going to seek a permanent restraining order.

Let’s consider the benefits and drawback of having teens involved in a mediatin with both adults and the teens present.

On the benefits side:

·         Provides the teens with experience about the consequences of their actions which they might not realize without adults present. The potential consequences of another fight as revealed in case 2 above.

·         Provides the teens a ‘safe environment” in which they have the opportunity to communicate with each other through a third party adult. The presence of well behaved adults adds to their feeling of safety.

·         Provides the teens interaction between themselves and adults also involved in the dispute. In case 2 the victims parent dramatically reveals the medical predicament of her teen and the potential for fatal consequences should another fight occur.

·         Can be very a very positive life experience by providing focus on their issues and needs. In case 2 and after the mediation the teens are seen hugging each other in an act of true reconciliation.

On the drawback of having the teens in with a mixture of their peers and adults:

·         They may feel a very significant power imbalance. In case 1 the teen being intimidated appears totally confused and disoriented, surrounded by adults.

·         They may be so immature they don’t realize the impact that what their saying may be offensive to adults and have consequences on the issues involved. In case 3 it is the teens offensive and abusive statements which doom the mediation.

·         The adults themselves may exhibit conflict behaviors themselves and between themselves. In case 3 the adults with the teens set the stage for confrontation which was followed in kind by their teens.

The above is only a small sampling of the issues when teens are involved in a dispute or adults are mixed in during mediation. Points to consider:

·         Preparation. Teens are just like anyone coming to mediation they have to be prepared and in a way that recognizes the presence of adults.

·         Adults can set the tone which their teens emulate.

·         Parents usually best understand the maturity of their teens and any supplemental help that will need to be provided by the adults to make up for their immaturity.

·         Teens may have access to peer mediation of their dispute and even if the parents are involved peer mediation may be as good as if not better than a mediation involving both parents and their teens. A question to ask is whether the underlying dispute needs to be settled first before tackling the adult dispute.

·         Mediation is best when there is collaboration, conducted as problem solving, and with an understanding there is likely to be negotiation involved. Making sure that both adults and the teens are in this mindset is critical.

·         Teens and the adults may be best served if they look at mediation as not only resolution in the present but what is the take away message from a mediation 3 or 6 months from now.

·         Teens and adults may also have to consider such factors as “peer pressure”, face, their standing in their peer group, etc. in resolution of their disputes and the priority such factors have when reaching resolution.

·         Adults should never underestimate the power and creativity of a teens mind nor their views about what’s important to them nor should adults ignore such considerations.

Best Interest of a separating couples Child is often dependent on their ability to focus on the child in the parents communicaitions. In a divorce or separation do children suffer the most? In the mediations I conduct I can, and do probe and ask about how the children are doing.  

What business is it of mine? Well the answers they provide are more important to the parents than to me. It’s a way to focus the parents, who are often in a “marital war”, on the child or children. A risk in creating the child as a focal point is that a parent may use what they say as a weapon against their former spouse. It is a sensitive area. But I have to deal with those challenges as any other issue in a conflict. Another intent is to see what the similarities and differences are in their view about a child. Often there are differences in views – how well a child is doing in school – their sociability – special needs – parents views on religion, sports – who they get along with and who a parent feels is causing them problems – if there’s a significant other, then how does the other parent perceive that person – how parents feel the other is getting along with the child, time spent, presence, behavior, communications, etc.

Communications between separating parents can often be characterized as adversarial. Many times other aspects of the “marital wars” come into play – stories about infidelity, drinking, smoking, friends who the other parents feel are unsavory, lack of trust, anger, thirst for revenge, again etc.

Bringing and keeping the parents focus on a child and their welfare is a goal that I strive for in every mediation. I put special emphasis on communications because if the communications start and continue to be dysfunctional even comprehensive agreements fall apart.

That is why providing clarity to communications between the parents about the child, in my opinion, is such an important mediation objective. I find myself spending more and more time and focusing more on the parents’ communications process and plan. If I can get parents to focus on the child and at least start off communicating collaboratively, because it is part of their agreement, then I am more secure that an  agreement with the best interests of a child has a better chance of being sustainable.

I'm delighted in the progress of this blog and I intend to keep it going as long as there is interest. I'm also pleased to announce I've started a new blog which will require increased effort to populate and maintain. In order to be able to provide this venue I will be adding advertising to the blog. I hope that visistors to the blog will find the material posted interesting enough to not only visit but also to provide feedback and comments. My new blog can be found at:

http://preventavoidresolveconflict.blogspot.com/

Mahalo for your continued and hopefully growing interest in the subjects covered conerning avoiding, preventing, resolving conflict.

Romance in the workplace. Think about it. How much time do we spend in the workplace environment? How much time do we spend traveling with members of our organization staying at the same hotel, attending conferences, training, project work, etc.? The workplace is a hub for romantic relationships. One of my favorite shows is NBC’s  “The Office”. Take note of what they do with the subject of workplace romance. It can be funny but for individuals and organizations it can be both terrific and tragic. We’re just starting to explore this subject in our Community Television series on “avoid, prevent, resolve conflict” but I’m already fascinated by the subject. From a conflict resolution professionals perspective it can cover areas like the consequences to individuals of a failed romantic break-up involving children and from an organizations perspective it can involve claims of sexual harassment and from both individual and organization it can involve conflicts of interest. Romances in the offices can be lateral, involving peers, or it can be hierarchical, like boss and subordinate. It can involve issues dealing with productivity, motivation, favoritism, and it can be consensual or unwelcome or it can start as welcome and wind up acrimonious. Office romance can be hidden, discrete, in the open, or rumor driven. Individual romance can impact an entire group. Office romances can break up families – the discovered letter, photograph, gift, or actual encounter.

Organizations tackle the realities of workplace romance through education, policies, procedures, use of experts, or by viewing them as the responsibility of individual employees. Sexual harassment claims can have serious consequences to organizations. They can be costly. Given the realities of most workplaces, putting people in close proximity with others who share common interests in an already collaborative setting create an environment where romance can flourish, but likewise make it difficult to disengage. Conflict resolution professionals can play constructive roles in dealing with the issues faced by the individuals themselves and between individuals and their organizations. One key aspect of our involvement in this area is to be cognizant about linkages in workplace romances between individuals and organizations.

In a learning disability claim episode we will be airing on community television in March we present a case of a failure to accommodate a learning disabled student. A couple of issues are highlighted which may be of interest. Here are a few of the issues:

·         An educational facility does have a responsibility to provide education to all students including those with disabilities. Failure to do so hurts the student, which is tragic enough, and can damage the institution itself in a subsequent action for compensation, damages, etc.

·         Failure to act is just that, failure. Institutions can have the greatest policies and procedures but individual educators responsible for a class can be the weakest link in the chain. For example, do they know enough about disabilities? Do they know enough to call for help should a situation arise? Do they act in a timely manner? Do they understand the risk of ignoring a disabled student? Do they know how to, or where to go for help within the institution and what types of accommodations can be made. For example, do they know about diabetes, that it is increasingly recognized as a disability, and that if they deny the ability for treatment they may in fact not only jeopordize a student but be guilty of discrimination?

·         On the other hand, do students with disabilities and or their caretakers and providers fulfill their responsibility of making a disability known to an institution? Learning disabilities are not easily recognized. A student suffering medically significant swings in blood sugar levels due to diabetes may be too embarrassed to make their condition known to their institution until they pass out in a classroom.

·         In our episode there is humiliation and embarrassment followed by withdrawal from the school. There is no physical injury. Is that enough for pain and suffering damages in your jurisdiction?

Mediation can and does play a significant role in these types of cases and may be the avenue of choice or be part of the legal process in your jurisdiction. If you are a claimant you need to identify what is most important to the student. As an institution, in our case, interpreted what they heard from the claimant and offered not just money but a chance at rebuilding the esteem of the student. The lesson there is that institutions have to discern what is important to a student and deal with the issues accordingly. Of course institutions also have to maintain a respectful skepticism because not all claims reach the level of discrimination nor the level of compensation being asked for.

Dramatic disclosures do occur in mediation and swing the pendulum towards resolution. A mothers plea “you’re not going to take my child away from me” in a divorce case is one such statement which has worked. Another is the drama behind a disclosure by a parent of their child’s fragility in a teen conflict is another example.  Most often there are only very subtle or no disclosures which occur in mediation and it is mostly a matter of negotiation which drives issues towards resolution. In any case mediators have to constantly have their antennas up and tuned to a high level of sensitivity as to what is being said because opponents too often don’t hear each other with the same sensitivity. A few examples may be helpful.

In a disability claim where a plaintiff is asking for a lot of money because of a failure by a teaching institution to accommodate for learning disabilities, is it about the money? In an episode we are preparing for Hawaii’s community television the script called for the vignette ending with an offer for compensation a lot less than being asked for. Yet our actor, who is in fact a mediator, picked up that what was more important in this case, even though just an act, was to restore the self esteem of the student. His improvised offer was geared to doing just that and it worked. The actor playing the role of a mother reacted with surprise and delight at this offer. One of our other actors, who played mediator wondered whether the money offered was insufficient. So had he played the role of a parent the same approach probably would not have worked. And so it is many cases. Not that mediators are always right and don’t turn their perceptions into conflict themselves. But the message is, reading people is a key component of a negotiation and mediators can play a key role in grasping what needs a party has to move a case to resolution. How and whether a mediator communicates or uses this information is part of the successful practice of mediation.

Over the last several years there appears to be an increase in the number of separations and divorce due to one spouse "outgrowing the other". By this I mean a change in situation , usually acrual of a profession, change in social status, new environment in one spouse while the other remains where they were with little prospect of change.

Let's take an example. One spouse is in what we used to call a blue collar profession, and please don't take me wrong, I'm not disparaging blue collar workers. Here in Hawaii finidning one is sometimes harder than finding a medical professional.

But in our example let's say one spouse is a plumber. The other spouse pursues becoming a physician and once attained now is required to go through internships, residency, etc. and to assignments outside their area of residence. The plumber has built up a great set of clients and does not want to move. They begin to turn in different circles and before long start getting into disagreements, leading to conflict, and finally the relationship ruptures. Separation and divorce follow. An unhappy story.

They are in mediation. Sometimes there is lots of anger. More often there's a resignation, a feeling of defeat, the anger hasn't yet arrived, as it's overcome by a sense of inevitability.

This is an area in which avoiding, preventing, and resolving conflict has an opportunity to be applied. The couple involved may have children. Best interest of a child becomes  blurred and oftenpronounced between differences in views on academics, sports, religion, visitation. Financials become difficult because of the earning power gained thorugh a profession like medicine.

It doesn't have to be the medical professions. It can be a business degree. A promotion from secretary to a budget analyst. There just seems to be more and more of these cases coming to mediation and dealing with two wonderful people in such situations can be quite challenging. Keepi8ng best interest of the child in mind makes it most worthwhile. 

Joint mediation sessions offer opponents a chance to vent, converse, and negotiate through or at least in the presence of a third party, a meidator. However, there are times when it is advantageous to the process to meet with each party separately. Discussions may have grown overly emotional, off focus, argumentative, counterproductive. A party may need a break. A mediator may try and recalibrate where a party is going and trying to do that in joint session may have adverse results. For example a child custody mediation may seemingly be proceeding down lines which seem to indicate agreement will be reached on a parenting plan. All of a sudden one party voices a past incident which raises the hackles of the other party and an argument starts. Focus on the parenting plan is quickly being lost. One approach is, let’s take a time out and go into separate session. In the separate session our mediator finds out a reason this outburst occurred was because the incident took place on the holiday which was about to be discussed in the visitation plan. A mediator then has a chance to figure out how to allow the parties to deal with the hurt involved with this holiday as it pertains to the visitation plan. Or, in a contract dispute a party may be withholding information from the discussion because thy do not want the other party to know. However this information is critical for the mediator to understand in order to fill what looks like a big gap or a total disconnect. For example when a party is facing a money demand they may wish to pay but they may not wish to disclose they are facing bankruptcy and so need the mediator to understand why additional time is necessary. In addition a party can ask the mediator to keep the information disclosed confidential from the other party.

Are separate sessions subject to manipulation or abuse? Can a mediator be played in favor of a party through a separate session? Maybe a little more than in a joint session however, it is dependent on a mediators experience and skills in discerning when manipulation or abuse is taking place. If it is manipulation or abuse a mediator has a right to call it out and if this does not work then to consider withdrawing from a case. It is especially true when power imbalances are occurring. A mediator also has to watch out for feigns from a party about just how wonderful they are (as long as they let themselves be influenced by a party).

Separate sessions can play important, even critical, roles in resolution but there are mediators who will not go into separate sessions as their process, feeling rather, that all discussions should take place in joint session. I utilize separate sessions, taking into account the potential downside noted above and the use by one party to hold the other in suspense for long periods of time as part of the wearing down process in a negotiation.

Mediation is an intercession by a third party, unrelated to any of the other parties, when communications over an issue or issues has broken down. A professional mediator has received significant training and has experience in acting in this capacity, often as a facilitator, taking highly emotional and reducing the emotions so parties can focus on the issues rather than each other. Since trust has most likely been broken because during the interactions between the parties in a dispute they need an intercessor who can work within that broken trust or restore trust. Looking at some of the positive aspects of mediation makes it more likely people in dispute will turn to a mediator.

First and foremost in many people’s mind is in restoring a line of communication since most likely it has either broken down or is not productive. A mediator is a good listener, empathetic, and amongst other things a good problem solver. Through a mediators communications kills parties listening abilities are usually enhanced. Often they learn something new, gain knowledge of their disputants perspective, and can hear what they themselves are saying when a mediator reframes or reflects what a party says. Recently there’s been a lot of talk about connecting dots well when a mediator gives the parties a “common” problem statement, at times, light bulbs go off. When a mediator reduces a dispute to areas of common ground, often, parties, start seeing some light where there was darkness.

A mediation seeks to and often turns people from focusing on the past towards looking at the present and turning their attention to the future. Sometimes the past is covered with an understanding, an acknowledgment, a realization of hurt to the other party, and apology. The present is a realization of where parties stand in the now, what their needs are, and turns their attention to the future. Seeing resolution in present into the future is often enough for parties to move towards resolution.

A mediation is an exercise of choice and maintain choice. If parties decide to voluntarily mediate they mutually agree on a mediator and if they have done a good job of interviewing and mutually selecting a mediator that’s a pretty good indication they agree to communicate, put trust into a mediator, and work with each other in some kind of problem solving mode. During mediation they have choice on what they communicate, how they respond, and on their negotiation strategy. They have choice on agreeing on what is common ground, on voicing their needs, on expressing emotion, venting, on confidentiality of the proceedings, what a mediator can and cannot disclose when they are in separate sessions to the other side. Finally they have choice on what they agree to and what goes into an agreement leading to resolution. Resolution can be partial, it can be subject to legal review, it can be in plain language or as highly technical as they agree. Agreement has to be mutual.

And, it can save money and time. That’s not to say there shouldn’t be preparation. In some case preparation can require a lot of work. Lawyers do not have to be utilized for every mediation. Although lawyers can do a lot for preparation and if they are skilled in mediation they can be extremely helpful. If however, they are h --- bent on litigation, winner take all, their utility diminishes. Fortunately more and more attorneys are becoming skilled in mediation or mediating themselves.

Mediation can be fun. If you enjoy negotiating it’s a great venue.

A number of us have volunteered and are producing a video series on avoiding, preventing, and resolving conflict . As producer I’m planning a “special” on interests, issues, and needs that our children have in establishing a resolution culture in their school environments. What I’m intending to do is to take selected aspects of their school life to explore this concept. For example I’m looking at areas like violence amongst students, ostracism by factions within a school, and interactions which occur between the borders of school and the outside. The reason I’m so interested in the school environment is because that’s where we start building a resolution culture – through our youth. It’s not that I’ve given up in striving to work with adults. There are some good, adult leadership by example,  scenarios, however, the road from conflict to resolution is a tough one and needs time. It will take innovative and creative effort which more commonly resides in youth.

Our objective will at first be to highlight the types of challenges which our students face in their school environments, what they themselves are doing about it, and perhaps a facilitation to generate some new thought.

Here in Hawaii we are extremely fortunate to have a community television outlet and some very dedicated and talented volunteers to make this happen. We hope the powers to be will continue to support this franchise in 2010 and beyond.

The message being conveyed in this blog entry is that we’re taking the concept of “resolution” culture and translating that into video to add some spark to a much needed area – student collaboration in areas like peer mediation, facilitation, and assisted negotiation and to encourage school boards to provide the financial and adult resources necessary to reinvigorate these programs.

We’ve all learned about IED’s, improvised explosive devices. They are nasty, often indiscriminate and deadly. Their presence is sometimes felt in the form of statements made in mediations where one party will say something so outrageous it can undo any progress made towards resolution.

For example take a dispute between a property owner and his property association. The property owner is pressuring his association to make changes to the way they operate. As an aside, it’s interesting how often a complaining property owner has been on the board of the association and the person representing the board is a rival. The association is often represented by a board member and a paid property manager.

Discussions in the mediation proceed with emotions on both sides showing but under control and even though it is clear resolution will not be reached they do get to the point where the parties seem willing to continue discussions and are about to reach the point where direct communications between the complaining property owner and the board member are agreeable to both sides.

However the parties hit an IED in the form of a property manager statement basically accusing the complaining property owner of committing an offense against another property owner which is citable by the police. This incident has not been discussed with the complaining property owner as a part of the back and forth in terms of a work-up to see if agreement can be reached. No one is ready to deal with this issue this late in the negotiation. The impact on the complaining property owner is like the brain trauma caused by an IED explosion. As he leaves he just says “I’m going to have to figure out how to deal with what just happened.”

As a mediator I wish this was just an isolated incident. It isn’t. And, these aren’t the only cases in which IED statements occur. What motivates people to use such statements at late stages in a mediation? What if it’s one member of a multi-party group who blurts this out o the surprise of the other members? Are these situations salvageable?

In my experience the time between finding common ground towards progress and reaching resolution, or in this case agreement to move towards direct discussions, is a very fragile time not only because of the possibility of an IED statement, but it is an important concern.

The use of separate caucuses in this stage is often useful because they provide some time to reflect what an agreement may look like and gauge where each party stands. It is an opportunity for each side to confirm their willingness, reservations, and vent about the agreement they are about to reach. And, since they can ask for confidentiality in these areas I would like to think they would feel this is a good time to get concerns off of their chests. Some parties do need some process coaching. The people in the party may use this opportunity to voice their concern in the safety of the presence of a mediator. They may need to reach agreement not only about the proposed agreement but also about who is going to speak during these final stages of the mediation.

However, despite this and other steps to preclude the IED statement there is still a possibility one will occur. A mediator therefore has to be prepared to face the situation, triage, and either find a way to overcome the impact or mitigate the damage but that’s something which will have to wait for another blog entry.

Happy 2010!

I don’t know where you are but in the places I’ve lived and visited, regardless of culture, religion, or politics the Christmas season strongly evokes peace and perhaps one day it will help us realize resolution.

In working with people in conflict during this season several have asked to take a break until after the holidays before commencing or resuming mediation. You can almost feel the stress this creates and inevitably I ask them whether they can manage a truce so they can all enjoy this period of time.

One reason I’m hopeful this can occur comes from one of our favorite stories for this period which recounts an incident during WW1 where enemies across from each other in their respective trenches somehow found a way to put down their weapons, walk into no man’s land during this period and share in the joy of the season. Imagine what would have happened if this incident had spread across all of the trenches in that insane war!

So, if guys who butchered each other across a couple of hundred yards  could do it, at least for that instance in time, then why can’t people in conflict do the same or even better – reconcile, during this period?  

I am always optimistic the people I meet with and serve can indeed find peace to enjoy this wonderful holiday season. And, that one of their New Year’s resolutions will be to exercise choice through mediation and reach resolution. So why not suggest a truce to them before we take a break?  Happy Holidays!!

Recently we aired a program on Hawaii Community TV about a teen conflict.  One of the interesting aspects of the case is that a request for voluntary mediation occurred one year after one of the teens struck another.  The objective of the mediation was to prevent a recurrence.  When I wrote the script I wondered whether it would be possible for a conflict to fester for that long. Then I played in a play-off game in the master’s soccer league and I got into a skirmish with a player on the other side and it was left unresolved after the game. You know what, I was already planning how am I going to finish this thing in next seasons game.  The feelings surprised me.  It dawned on me - this is the kind of thing that we experienced with the teen conflict scenario. In my case the end of the game should have ended it and in reality it probably did but the feelings after the game were strong. Now just imagine if my teammates egged me on and into the next game they said remember how that guy treated you in the last game! How would I respond? How would I act? How about the other guy and his feelings?  Think about it, how often does this kind of situation come up and how many situations are there which can lead to a future conflict if left unresolved?   In my situation at the end of the game we have a tradition of walking down the line and exchanging “well done” with the other team. Part of the reason is probably to bring things to closure so as not to carry over bad feelings into the future. Maybe we did that and it’s just the adrenaline which keeps the emotions high. It is at least a chance for closure. Perhaps we need to look for opportunities for closure, explore them, act on them, and consider how we can move on without festering conflicts. Sometimes we need a third party to intercede. Always, we need to make sure that we carefully consider how to control those who are interested in inciting from succeeding. Peace during this holiday season.

Preparing for voluntary mediation

From what many call facilitative mediation the following would apply.

Facilitative mediation can be described as a process in which a mediator plays a role as an intercessor between parties in finding a pathway towards resolution of issues.

Identify and focus in on interests and their priorities.

Define what are the issues which stand as road blocks to those interests.

Define what needs must be satisfied to resolve the issues which serve the interests which  require protection.

Always have a best alternative to a negotiated agreement before entering into the mediation.

Isn’t this too complicated. I will admit that even as a mediator I sometimes have trouble understanding how these three words (concepts) practically fit together in every case. Some interests stick out like a sore thumb. When its about the money, the interest is more easily identified. But often there are very subtle interests which parties are trying to protect. They may not make it known at all. Their views on what interests are at stake may change during a mediation. When the interests they are trying to protect are unknown it’s easy to go off in a tangent on the issues. If a party is interested in saving face but does not make that known and there’s money involved then a mediator can go off on a tangent thinking it’s about the money. Insofar as needs are concerned poor bargainers will come in with demands which are totally disproportionate to what is finally agreed upon. Sometimes they become so stuck on disproportionate demands they become blind to the point mediations fail. Mediators can misread a parties needs because that party has not taken the time to determine what interests they are trying to protect, or misidentify the issues, confusing their opponent and the mediator who seemingly go off on another tangent.

In addition in preparing for a voluntary mediation it is prudent to put oneself in the opponents shoes so as to seek some level of alignment of a mediation strategy.

Most often there is a need for some “proof” to ones claim. A simple example is in bringing estimates to support what it would cost to repair something which has been damaged. More than one is better than only one. In a court trial the proof is called evidence and you have to understand the rudimentary requirements associated with what is evidence and what is not. Rarely is your own estimate evidence (prejudice?, lack of expertise, a whole variety of issues come up with generating ones own estimates). Would you accept your opponents own estimate? In today’s world photos still say a thousand words but with much less effort than in the early days of photography.

Knowing what you want is a simpler way of saying needs. Aligning that with the issues and the interests is more difficult. Once again take money. Claimants often come in with demands without thinking through their rationale. Common mistakes are focusing on punishing their opponents, forgetting to think about the time value of money received today versus having to wait for more, giving up choice which is theirs in mediation but not theirs in a judicial proceeding, making a miscalculation of the strength of their case, neglecting to factor in the probability of having to pay their attorney fees and the amounts which such fees can rise to, letting their emotions become the primary focus of their conflict, and unchallenged  and unverifiable advice from their advisors.

Another step in preparation for voluntary mediation is in selection of a mediator who not only has the skills but that both parties feel they can work with. There are many mediators and individuals need to shop around like they would for any other service. There should be a role for referrals from people who have utilized a mediator and can attest to their skills and ability to work with the parties in the kind of environment required by the conflict.

Voluntary mediation can and does achieve mutual agreement but it does not happen by just applying to it.  Each party involved has a role to play in its success. A mutual desire to utilize voluntary mediation is the first step. Preparation is the next.

In an interview for community tv yesterday I was asked what and how do you avoid conflict? I gave the best answer I could and later started to think about it some more. I increasingly start with a basic, disagreement is a part of any human endeavor. Disagreements become an issue when they turn into conflict. So, the best way to avoid dispute, besides not entering into any kind of business with business, business with client, or interpersonal relationships (even then we can’t escape the fact that we share limited resources, space, etc.) is to be prepared to deal with disagreement. In a business with business or business with client relationship it can be done through vehicles like a contract, which isn’t just about words but is indeed committed to by the people entering the relationship. In an interpersonal relationship there is a formal way to deal with this in the pre-nuptial agreements which not only spell out the consequences of a break-up but processes by which to deal with disagreements. Spelling out a process is not enough. People entering a relationship should also commit to a third party who they trust and are willing to mutually commit to as an intercessor when disagreements occur. Finally there are the issues related to the skills that a third party needs to have in order to be effective. A third party can be an individual or it could be, more broadly, an organization.

All mediators, for example, see people who have agreed to utilize mediation but have no commitment to the process and furthermore don’t even know the individual or the organization they are asking for services. So lack of commitment often means positional bargaining which instead of avoiding conflict becomes a source of additional conflict. All mediators see people who have waited too long and the disagreement comes with a broken trust between the people in the relationship. Knowing when to call for help is a key ingredient in forestalling disagreement from becoming conflict. And, too often the people reaching agreement on a process don’t know anything or very little about it and so they don’t prepare to use the process in an effective way. Not only that but people enter into relationships blindly and do not even consider whether or not disagreement can be a factor.

In the good old days when people lived in a community where they knew and trusted each other a third party intercessor who everyone in the relationship trusted could have been an “elder” who could today be considered an evaluative mediator. Today the complexity of relationships is often much more complex or more specialized and a third party needs additional skills which requires a professional in the field. Relationships are very often impersonal and once established pass to someone else than the person we dealt with in establishing it.

To avoid conflict prepare for disagreement to occur and establish steps by which to avoid it from becoming conflict. Understand when a third party may be required. Understand the processes to which a commitment is being made. Choose a third party to utilize when disagreements arise. Know when to call for help. And, most importantly make a mutual commitment to utilize the process and third party as each of you monitor the relationships looking for signs of disagreement shifting towards conflict. Pull the trigger and even if it’s too early utilize the benefits of the processes and professionals you have engaged and make it part of your cost in doing business and dealing with interpersonal relationships recognizing such factors as over half of marriages today end in failure ( a very sad but nonetheless reality). Conflict can be avoided in other ways and that’s a subject for another blog. If you have other ideas in this area don’t hesitate to provide the feedback.

It is already December 2009 and how many of us have outstanding monetary claims against contractors, businesses, car accident claims falling below the deductable amounts, landlords who refuse to return safety deposits, tenants who refuse to pay for damages caused to a landlords apartment, house, etc. You’ve offered to negotiate or voluntarily mediate and to no avail.  Your demand letters have been returned to sender or remained unanswered. Who are you going to call? The amount is too small to engage a lawyer. Many of us tend to just move on and write-off the amount due. Guess what, with a bit of research at your court house you can find out just how hard or easy it is to file a small claim. Having done so what often turns out to be the hardest part is serving notice to your opponent. Some of them should belong to the magician’s guild, they seemingly can’t be found. With some effort you can satisfy the court you’ve taken all the steps necessary or you find them and provide them with a summons to show up in court. You do your prep work (i.e. your case, your evidence, and the amount you are demanding (and range as well as walk away amount (i.e. you’ll go to actual trial))), and your strategy. You show up in court (don’t be surprised if your opponent asks for and sometimes gets a delay) and lo and behold you wind up in mandatory mediation. If you want to know more about what happens at mandatory mediation you can look for my book “But your honor…” “Case Dismissed” on the internet or watch our December episode on Olelo Community Television Channel 56 on “mandatory mediation in a small claims court setting” shown on Saturdays at 7:30PM.

So, yes it takes time, effort, and there is a cost for small claims court filings but if you do it right and the limits on the amounts small claims court fits your claim, small claims court can deal with the issues, meet your needs, and satisfy your interests. Happy Holidays.

Do you have a conflict with someone in a business to business, business with client, or interpersonal relationships involving small amounts of money? Have you tried to engage your opponent in voluntary mediation and this offer has been refused? Your next step may very well be to file a small claims court claim. In our State the amount involved has to be $3,500 or less. And yes people who have suffered more than that amount of money still file because they do not want to involve attorneys and the costs involved with their services. In our state the filing process is simple, fill out a form, submit it and get a trial date. The next step is sometimes a bit more complicated because notice of the claim has to be served to your opponent. And, it’s amazing, sometimes opponents are like illusionists they just seemingly disappear. When they are found and served you and your opponent show up in court and wait your turn in front of the judge. Lo and behold when your case is called the judge refers you to mediation and you have a very limited amount of time with the mediator and your opponent to negotiate a settlement. I disucss this in my book named “But your honor …. Case dismissed” available through e-publishing on the net. If you’re going to small claims I recommend you read my book because it talks about “competitive bargaining” also known as “distributive bargaining” which simply means it’s about the money. Because although you may have other reasons for going to small claims, when it comes down to it unless you want to do a barter deal, just be heard, or get an apology that’s what small claims court and mandatory mediation at small claims court is about. And, yes I’ve seen a few barter deals reached but that’s about it outside a money based agreement.

And since it is December our episode on mandatory mediation in small claims court is playing on Olelo channel 56.  Our vignette demonstrates what one of our panel members calls assisted negotiation in mandatory mediation at small claims court. You’ll also learn a lot more through our panel discussion which follows.

Preparation for small claims court is no different than for any other case and the better prepared person usually does better in mandatory mediation since competitive negotiation is normally an information game. Objective evidence of the basis for the amount of money being requested or defense against a claim is necessary. Don’t make up your own numbers. More than one estimate is better leverage. Don’t try and rely on your opponents evidence to defend your claim. Remember time can play in your favor either in asking or offering.  And, remember that if the mandatory mediation fails you go to trial the same day and you have just given up choice as the judge makes it for you and your opponent.

Don’t look for punitive damages as in our state you won’t be granted such at small claims. Finally, once the judge makes the decision there is no appeal.

So, if voluntary mediation didn’t happen and you filed a small claims court claim you’ll still most probably wind up in mandatory mediation – be prepared and good luck whether you’re plaintiff or defendant. Choice counts-apply it.

I don’t know about your community but voluntary mediation is still relatively underutilized in the context of preventing, avoiding, and resolving conflict. We’re certainly short of being a resolution culture. Instead according to some commentators we’re a litigious culture deferring choice to others than just between opponents. If we agree we need to turn things around then we’re probably talking in turns of generations and a good place to start is with youth and the way they view the world.  Amongst the youth there’s a small group in our schools who might hold a promise towards a resolution culture.

In Hawaii we call teens involved in mediation at their schools “peer mediators”. These dedicated individuals and their faculty mentors can become ambassadors for preventing, avoiding, and resolving conflicts amongst their peers.

In 2008 we featured peer mediators in our ACR Conflict Resolution Day celebration in Honolulu. The video we produced for Hawaii’s Olelo Community Television is available at http://www.olelo.org/whatson_web.htm (click on education and youth and scroll down to (Conflict Resolution Day: Ep - 1 Conflict Resolution Day Celebration 2008)) (in addition our program on Teen Conflict is also listed (Avoiding, Preventing, Resolving Conflict: Ep - 1 Voluntary Mediation Team Conflict (sorry for the misspelling of Teen)). Between these two episodes you can start to get an idea about what peer mediators do and how parents can help avoid and prevent conflict.

It is my understanding that peer mediation, as it exists, has received mixed reviews and it has not spread to the degree initiators of the programs have hoped[1]. The way I read the commentary is that peer mediators are limited to dealing with very limited issues and that troubled teens can effectively manipulate the processes or live under the radar until they explode. I think that raise the question whether it is beyond the limits of the programs and the teens involved to expand the reach of mediation into prevention and avoidance. As in my own estimation and experience with my own kids adults tend to underestimate the capacity of youth I do not agree we cannot do better with peer mediators. But our efforts have to reach out not only to the practitioners but also the school body and there we can do a tremendous amount more, it’s a priority,capacity and developmental challenge.

In moving the field forward we have to refocus a lot of our efforts in developing a resolution culture amongst our youth. If we do this the next adult generation is going to have a much greater readiness to adopt avoiding, preventing, resolving conflict in their adult lives by exercising the choice available in mediation, facilitation, and assisted negotiation. The challenge is in revitalizing peer mediation programs where they exist, expanding them more broadly and moving towards the next generation of processes for use by our youth. Where are the champions to support this cause. Just to be ridiculously simple, does anyone know of a single “celebrity” with influence on the opinion of our yout who’s championing a resolution culture? Are there efforts to define what a resolution culture even means in terms our youth can understand?

Here are my thoughts on steps which can be taken.

·         Our kids are steeped in “media” (be it tv, video, social media, internet, web games, etc.). Create space in these media, in an entertaining way, by which to attract youth to collaborate.

·         If it isn’t already expand training on preventing, avoiding, resolving conflict to the, you get “credit” level with additional credit for participation as a peer mediator.

·         Consider expanding the program to include parents or guardians. When parents are included figure out whether “peer mediators” need adult conflict resolution professionals involved so there isn’t a power imbalance. I recently had a case where parents wanted to be involved and a school said no.

·         Figure out what a “resolution” culture is in a school environment and create promotional programs which can be used to support the effort amongst the school body.

·         Expand individual school efforts into area, regional, and national level efforts.

·         Find access to funds, establish budgets, go for donations, grants, etc. find willing sponsors and other donors.

·         Establish a set of metrics to measure success, develop lessons learned, and highlight development of these programs.

·         As appropriate incorporate programs which allow youth to increase their ability to sense tension and what they can do to deal with it.

·         Give more trust to our youth, they can do more.

Having been a parent to a really great set of kids I can vouch for the fact that our youth experiences a great deal of conflict even though they all mostly went to private schools, Punahou being one of those schools for our younger children.  Also, our children witnessed the conflict that takes place amongst adults and I’m sure these also left imprints on their minds. Where kids are exposed to much harsher environments, like gangs, witness crime, face peer pressure, constantly observe the use of drugs, and face the results of separation of parents, live in poverty, see the holly or bolly wood glamour and lavish lifestyles, what happens? They may very well think there is nothing but conflict. Conflict between rich and poor, between drug users, pushers, and those who abstain, between religious and non-religious, between races, between genders, healthy and those who suffer from chronic illnesses or are disabled, the over versus underachievers, one can go on and on. Rising expectations, growing gaps and divides between societies, ability to suffer and deliver violence, etc.

In many environments preventing, avoiding, resolving conflict is not just an option, it is a must. The more we engage youth during their formative years they will have the capacity to expand a resolution culture through their communities as adults. Who knows, some of the competitive attitudes which now exist may turn into collaboration. Wouldn’t that be great?

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:

   11/21/09      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.

Putting it off

There’s something in us about putting off dealing with conflict until the issuue becomes a dispute and before we turn to a third party for help. We’ll sooner turn to an advocate for our position in the often mistaken belief this is the right approach. In many cases it is wrong. Why do we exhibit this behavior? Is it fatigue, emotion, the way we’re educated to behave, we don’t know another way? Can’t we do more to avoid or prevent conflict? Do we wait too long believing such things as the conflict will resolve itself?

Take the case of neighbors. Most of us have neighbors. Are there issues? I bet in many cases there are issues if not conflict or disputes. Take the work place. Do we get along with everybody we know? We know there are people in the workplace who are in conflict or dispute. Conflict appears to be a human condition in everything we do together.

We can avoid conflict by avoiding those who we are in conflict with? Sometimes this works. We can prevent conflict in many ways including coming to an understanding with those with whom we have a relationship on a process involving a third party and whether we want the third party to facilitate, mediate, or arbitrate. But most of us, and that includes organizations, inadequately plan for such circumstances.

A problem with not having a plan is the hesitation which takes place when conflict arises and goes unresolved. During the hesitation the issue being faced grows, communications are affected, emotions rise, and now we’re going to ask our opponent to agree to a third party intercession? There’s a window of opportunity for situations like this. Timing is very important. Too often people in relationship now opponents let it pass.

So, by the time the opponents bring in a third party there is a heightened adversarial relationship and like a cancer, what may have started as one issue may have figuratively metastasized into many issues. Just as I’m learning in doing videos on peaceful means for resolving conflict that one hour of pre-production planning saves not only many hours of editing but significantly reduces the probability of a failed video the same should be said of pre-planning to deal with conflict when establishing a relationship be it interpersonal, business to business, or business with client. With that long sentence I’ll end this entry.

Sorry but I’m skeptical

Whenever somebody says why get a mediator when it’s just problem solving and we do it every day I become somewhat skeptical. I just heard that in a seminar on issues dealing with ageing and the comment was made with reference to ethics committees in hospitals. I will accept that physicians, social workers, and attorneys acting as committee members are highly learned individuals however they are not above being awful mediators. Some physicians just don’t have good bedside manners. Others are just plain arrogant and seemingly uncaring. Some attorneys just can’t get over advocacy. Are social workers trained in mediation? I’m thrilled hospitals have ethics committees which have as a function to listen to both sides and provide recommendations. And, I’m sure within the framework of what they were set up to do they do a great job but there are a few issues.

Why isn’t there a mediator on this committee? Is this committee really neutral? Who are they there to protect? Do recommendations they have issued reach the level of mutual agreement?  Do the sides have choice and do they reach agreement on who will “mediate” their case? I don’t know but I will certainly endeavor to find out. But making statements like mediation is nothing more than problem solving which everyone uses every day is oversimplifying what mediation is all about and it continues to confuse people about the value mediators bring to conflict resolution.

In the meantime keep in mind the following points made at the seminar which are always useful when an elder person goes into an institution:

·         Have an advance directive in the hands of the institution.

·         Beware of power imbalances where an elder person is asked to make decision they can no longer make on their own – they may need an advocate – understand how a family member can ascend into the role of advocate.

·         Understand what the process will be if a conflict arises – ethics committee or something else? What choices do you have?

None of us like the prospects of entering ourselves as elders or family members placing an elder into an institution but like in anything else dealing with organizations you have to be the best prepared person in the room in these types of discussions. Educate yourself.

Non-profits have conflicts too

I fully subscribe to the premise that in every human endeavor there will be disagreement. Since non-profits are an endeavor and involve people they are not exempt from conflict.

What forms does that conflict take and what are some of the consequences?

Non-profits may consist of all volunteers as members, officers, board members – you name it.  As in any volunteer organization the bulk of the work is carried out by a few. However, demands on the organization can come from people who make significant demands but do not contribute to the doing. This 80-20 rule, as I’ve heard it call can cause conflict. There may be others who are complainers. They complain about what’s not getting done, how things are done, and the individuals who are involved in doing. And, as in every human interaction there is always the possibility of personality difficulties creating conflict. My discussion below is about conflict amongst Board members.

Have you ever served on a Board of a volunteer non-profit with Directors having conflict? It can get nasty and severely impact organizational activities. Whole Board meetings can repeatedly turn into conflict situations. And, since the Officers are also volunteers they can sometimes feel powerless in restoring order or become the targets of the conflicted relationship.

So, what is a volunteer organization to do? Just as in any organization setting up a process for conflict avoidance, prevention and resolution may be a key. If people on a Board know that when a conflict arises what they are expected to do, for example, meet with a designated neutral Board member(s) who can ensure both sides of the story are heard and either facilitate or mediate between the parties. This way they know in advance  they are required to go through an intermediate step before it comes to the Board.  And, just as a further thought, when the Board is asked to intervene then the hearing is on the basis of a summary of both sides positions provided by the designated “neutrals” with perhaps the disputing members present. One key is to have a process for both sides to be heard with an opportunity to resolve the conflict before it becomes a full Board issue.

How the full Board gets involved if it cannot be resolved through an intermediate step is the matter of another blog entry. To keep volunteer non-profits running it is essential to avoid, prevent, and resolve conflicts before they become disruptive or destructive.

What is it about a third party intercessor which can turn conflict into resolution? Why do people in conflict turn to a third party to intercede in their path towards resolution? Why have they been doing so since ancient times?

Today is it because they want to avoid the adversarial and costly court system? Mediation  just fills some kind of void in our legal system?

As was pointed out to me use of a third party existed when people lived in tribes and clans where they turned to an elder or someone they respected. In our urban society, although these practices still exist, most seekers of a mediator ask for a referral, search the internet, or look in the yellow pages under ADR or mediators to find an intercessor. Perhaps a lasting vestige of the “elder” is that some mediators are “grey haired”, yours truly included. Traditional methods of conflict resolution still exist or are being brought back in a number of cultures. Evolution of the field has progressed to the point a practitioner can seek advanced certificates and degrees.  So, is a factor in a mediators effectiveness respect? What else; experience, reputation, skills, presence, abilities to dissect, analyze, problem solve, etc?

What about mediations where a mediator is present but is minimally involved as the parties solve their own problem in direct dialogue? It happens. So, is there something just about the presence of a mediator that makes a difference? Is it about forum in which to hold dialogue? Are people in conflict just looking for a place of safety represented through an agreement by both parties to engage in mediation?

Think back to ancient times, well before the establishment of a judicial system where people in conflict cede decision making to a judge operating under “rules of law”. Life spans and odds of survival were much lower back then than today. Survival in a conflict situation did not always depend on the use of violence did it? Who did they turn to? If they turned to a third party, was a mediator a way to mitigate violence or increase their chances of survival? Do we still view third party intercession in the same way today with a hope for peaceful resolution? Was it, is it,  about saving face?

When our predecessors turned to elders or relatives did they do so because it was a means by which to preserve relationships? Is maintenance of relationships an important factor today and does a mediator fill this gap in some way?  Is mediation better able to do so than litigation?

I’m relatively sure that to any of the questions posed above an answer is “it depends” on the case and the circumstances. However, in my observation and dealings with people in conflict, in general,  I find some level of deference in a mediation to process and mediator even though I don’t have any decision making power in resolution of the conflict. It’s almost as if working with a mediator creates a “trust” between the people in conflict and mediator. Not that there aren’t tension filled moments and mediations which have to be closed because it is the wrong mediator for the parties, or the wrong type of case for a mediator. Those are the exceptions. Sometimes people in conflict still work out their difference in front of the mediator even if it’s the wrong mediator. Perhaps they are there to solve a problem and it is their commitment to do so that drives everything else?

Mediation has a long lived history and although most of today’s mediators are not tribal elders or relatives there are factors in mediation, about third party intercession, which continue to reduce situations from conflict to resolution. As it is popularly said, it’s one of life’s mysteries and I’m seeking answers. Look at mediation and come up with your own conclusions why a third party intercession would work for you.

Conflict as a Lose – Lose Proposition - Referrals

In my book “Can We Talk? No?” the front cover shows my dog with her head in the sand on one of our prettiest beaches on Oahu. The intent of having her head locked in the sand is to demonstrate what happens when someone is stuck in a position, in our mediation cases in negotiation deadlock or impasse. She’s searching for a land crab while I may wish to go home for business reasons and because it is her feeding time.  In a win-win situation I can get home on time and she gets fed. In a lose-lose I can lose an important business transaction and she may not be able to find the crab and still be hungry. How does this translate to a business to business relationship?

Take any kind of word of mouth networking group with an objective to link people together by giving and receiving referrals. In referrals there are at least three people involved:

·         Giver who makes the referral

·         Subject who is the client who utilizes the product or service provided

·         Receiver who gets the referral

A referral goes wrong. The giver is in trouble with the subject of the referral, a client who now says they are severing the client relationship. What should each do? What’s a network group to do? A win – win is a qualified referral satisfied with the job or service provided. A lose – lose is a client who is the subject of the referral so unhappy they vent on the person who made the referral and that person breaking of any further referrals to the receiver - person providing the service - and complains to the network group. The receiver who is now the focus of the complaint is dismissed from the network group. It gets worse. The further lose – lose is the giver of the referral making it known they will never again provide another referral to the receiver and quits the network group because they feel that having been burned once, the risk is too great.

So far the giver has lost. The subject has lost because they are unsatisfied with the service or product provided. The receiver of the referral loses because she will never get another referral from the giver and loses their membership in the network group. The network loses because it is out at least two members and perhaps its reputation suffers because the unhappy people all complain about their experience with a network based referral group.

Sound bad? You bet it does. First try and explain the above in a simpler and more concise way.

Is there a way to simplify? Let’s provide some thoughts followed by probing questions and see what you think.

First of all, almost everyone agrees business referrals are one of the most productive ways to generate business but it is not the safest.  So, the longer you are in a referral network group the more likely it is someone will not be satisfied with the work or service you provide. Likewise as a giver of referrals you’re going to hear about a referral you made gone bad and your reputation is at stake. And, the longer a network group exists the more instances of a referral going bad it can expect to encounter.

Therefore, as an individual engaged in word of mouth referrals you better be prepared for the moment, rare as it may be, you will face the lose-lose scenario outlined above. Have you thought about this?

·         If the referral you gave went bad do you have a response to a client complaint about the referral you made? Do you have an apology ready for delivery to safeguard your relationship with your client?

·         As the receiver and provider of a product or service based on a referral are you prepared not only to answer a complaint to a dissatisfied subject but also to the giver and the network group.

·         As a network organization have you considered how you are going to handle these situations in a way that is fair and just to all concerned and, do I dare say, shows the requisite diligence in hearing all sides?

Thanks for reading this long winded essay which provides few answers. Maybe, in a future blog entry we’ll start developing an approach for the various parties in this process. Certainly we’ll talk about it in the context of avoiding, preventing, and resolving conflict.

In the meantime remember referrals are one of the most effective business growth tools for those who take the time to give and are patient and persistent enough to receive. First of all you have to be highly professional, ethical, and consistently effective in what you offer.  Be careful and don’t expand your claims beyond what you can deliver at the highest standards of the service or product you are offering.

Teen Conflicts in our Schools

A further aside on teen conflict which might be interest to you, if you’re dealing with this issue either as practitioner or as a parent or guardian. Some schools, not enough, have peer mediation programs, while others may have counselors, while still others may require their staff to get involved. I would hazard to bet every school has a program of one sort or another. You have to judge the effectiveness of conflict resolution processes in your system.

Teens get into every kind of conflict including physical intimidation, bullying, or actual violence. There are some other insidious types such as ostracism, setting students up to take a fall (here hold my cup of beer and the police arrive), and abuse in the social media so ubiquitous in our society at this moment. And, don’t forget if there is a younger sibling at the same school the target could become the younger sibling. And I’m sure there are those cases in which the “victim” provokes or incites behavior but don’t assume every victim provoked the aggressive behavior. 

As a parent or guardian we can be of help or we can aggravate situations while at other times our perception may be we have to step in and protect our child. Be mindful that when parents step in they may not only change the dynamics but also the process necessary to resolve. Our response as a parent may result in like manner on the other side. And, furthermore parent involvement may put dealing with the issue outside the school conflict resolution process. No peer mediator can be expected to deal with teen conflict with parents present or involved in the dispute. Even the counselors may not be trained I dealing with parents who are emotionally upset. At times the police may get involved.  There may be restraining orders. What may have started out as conflict between students can easily turn into dispute between parents. At a certain level escalation to a parent level is necessary to protect the teens and work towards resolution.

If parents are involved consider mediation. These cases may need third party process assistance while in others it may be enough to have a third party present with minimum intercession necessary as the parties talk it out. Should your route to resolution be with the other parents carefully consider whether or not to involve the teens themselves in the process at this level. I recommend they be involved because when it comes down to it they are at the source of a conflict and not having them there may leave out critical information, not really resolve issues between the teens, and even though the parents agree further incidents occur. A mediator, with the concurrence of the parents and the confidentiality rules of the jurisdiction, can have separate sessions, separate the issues, and perform under the confidentiality afforded to separate sessions if the teens want to talk about things they may be going through that they don’t want their parents to be aware of.

Teen years are a period of incredible change in an increasingly violent world and practitioners and parents can and at times need to play a significant role in their child’s school community experience. We just have to understand the processes and the rules of dealing with conflict in their lives positively.

6 Months Later

In a recent panel discussion being filmed to promote and encourage voluntary mediation for viewing on our public television network my panelists opined that one of the characteristics of a mediation agreement should be that it is “lasting”.  Although we may say this is evident I’m sure that as practitioners and or frequent users of mediation we’ve seen both lasting and short lived mediation agreements.  As a result the panelists also indicated that safeguards should be built into agreements if hey begin to break down. One option is an agreement to return to mediation.

One of the problems in knowing how lasting our agreements are is that we may not hear from the clients again. In other cases they may return. Or we could hear they have entered into litigation. So, what can we as practitioners or clients do to build lasting agreements?

A train of thought goes like this. Deep a little deeper behind what drives relationships, be they business with business, business with client, or interpersonal into conflict. For example, in a teen conflict perhaps we should spend some time in trying to understand the reasons behind each actors behavior. Another suggestion is to query what the actors in a teen conflict have learned from this mediation.  If parents are involved measuring whether they have left messages of positive or negative support for ending the conflict.  Another suggestion is to encourage the actors to prominently display their agreement where they can refer to it on a frequent and reinforcing basis.

The other way we know how long an agreement lasts is when the parties come back because they need either further work to expand or change an agreement or they come back because an agreement is not working.  In the case of a divorced couple with children this could be years later.  Sometimes it is possible to renegotiate and resolve differences. At other times a relationship is quickly becoming dysfunctional and they may have to go to counseling. In the case of divorced couple, unless they are an exception and are collaborative on an ongoing basis it is probably wise to include a clause about steps to take if the agreement is not working, like come back to mediation.

In the business context I believe that if a relationship is to be saved businesses should include process wise steps to avoid, prevent, and resolve conflicts as an ongoing part of their relationship.

Having a process in place for avoiding, preventing, and resolving conflict is an ounce of prevention worth so much more than a pound of cure.   

Supporting Roles in Mediation

Clients can and do bring attorneys to mediations or vice versa. Yes some attorneys are very supportive of mediation and work hard with their clients to reach resolution. In other cases help comes not just from attorneys but from clients family members who participate in a mediation session. Their role may range in scope from just being initiators of a mediation effort to highly transformative roles during a mediation. Let me give you an example of the roles played by these folks in a teen conflict.

Imagine two teens having a fight in school. Not much of a fight really, the aggressor confronts another teen, loses control, and slugs the other teen, then walks away. A significant amount of time passes but during that time the aggressor keeps getting egged to do more. Somehow the aggressor’s guardian picks up on the brewing issue and decides to request a mediation with the victim and his parents.  At the mediation she opens by stating she’s asked for the mediation because she’s aware of this situation and wants to prevent a second assault. This opening statement set a very positive tone for the mediation which followed.

It was hard to know what position the victim’s parents would take on his situation. They could respond by taking a hard line, getting a restraining order, going to the school authorities and asking for their intercession, or even threatening their own reaction against the aggressor and the guardian. However, they do not take this stance. Instead the victims Mom simply states she agrees with the Guardians objective and later the Father takes a very understanding position and simply points out to the aggressor the potential consequences should a repeat assault takes place, asks the aggressor to put on his, the father's shoes, and connects with the aggressor who's attitude is transformed from aggressor to, "wow, I got it."

These types of scenarios do occur and demonstrate the positive supportive role that participants can and do play in a mediation. Now there are excellent examples which can be provided which demonstrate the negative role which participants can play in a mediation but for this entry I will stick with the positive role. 

Sometimes it is very unclear why someone brings others to a mediation and sometimes it is a complete surprise to both the clients and mediator.  At such point the parties have to decide whether or not to allow the participation of the unexpected participant and on some occasions it is clear unexpected participant cannot participate in a mediation. Experienced mediators know how to handle such situations and keep the mediation on track.

Voluntary Mediation

I am a huge proponent of a decision, voluntarily and mutually made, by people in conflict to turn to a third party in their quest for resolution.  I especially appreciate people who realize the path to conflict resolution is a stepped process starting with discussions or direct negotiations and then moving to third party intercession where they are still discussing, negotiating, and trying to achieve resolution.  At this stage they are not necessarily or yet adversaries, or disputants, or even opponents. They have a problem which, because of emotions, lack of new ideas, or some act of frustration makes direct communication impractical as a process towards resolution. They need someone with skill through whom they can communicate and to whom they are willing to entrust return communications, facilitating them towards new thinking, and focusing them on issues rather than on the person with whom they are in conflict. In my mind the intercessor they need is a problem solver that could be either a facilitator (if only process is involved) or a problem solving oriented and skilled mediator.  Let me give you an example, by means of a hypothetical case.

Two neighbors, one has trees growing just inside his property line while the other is an avid gardener who meticulously maintains his vegetation and garden area. The trees have lot of leaves. They have grown rather large with some of the branches actually growing over the property line. Leaves are falling in large numbers and the number falling into the neighbors yard is annoying the neighbor. The two neighbors do no routinely communicate and the annoyed neighbor is considering what he should do. When there were previous issues, say over a barking dog of the neighbor with the trees, communications broke down. According to his reasoning his choices are:

·         Attempt to talk to the neighbor with the trees.

·         Do some self help as allowed under the law for those portions of the tree which are hanging over his property.

·         Ignore and put up with the annoyance.

·         Opt for a third party to act as a “go between.”

If we’re in this kind of situation we might say “here’s what I would do if I were you …” But let’s assume the following:

·         Annoyed neighbor has a temper and fears that if he attempts to talk to the neighbor with the trees the issue could quickly escalate. He rejects making this attempt as too risky.

·         He can’t reach the offending limbs. He’d have to pay someone who had the equipment to reach the limbs. He cannot afford this option.

·         Once again he’s fearful that if he ignores the problem one day something will happen and he’ll just lose it. He rejects that notion.

·         He accepts the premise a third party is what he needs.

In the above there is a conflict, even a pre-existing condition, they do not communicate, but they are not opponents, disputants, or adversaries. The annoyed neighbor chooses a third party. Traditionally he could have gone to a neighbor, an elder, someone respected in the community. There may even have been a neighborhood conflict resolution process. Today, that may still exist in some neighborhoods, but more than likely neighborhoods today are, people living in close proximity with each other but without the aforementioned types of processes available to them.  Being a public TV watcher he’s become alert to programs dealing with this issue and he finds and watches a broadcast on voluntary mediation. He decides he’s going to check this process out. He talks to people he knows and he starts to get names and finally a referral from trusted friend and he makes the call.  The mediator does a case intake and offers to make contact with his neighbor. His skill in making such calls is validated when he calls the annoyed neighbor to tell him the neighbor with the trees agrees to participate.

It isn’t that hard a step to take. An experienced mediator knows how to assess cases during intake and although he highlights that refusal to mediate is about equal to the rate of acceptance in this case her approach worked. Maybe the neighbor with the trees realized there was a problem and knows he has to deal with it but also feels a third person is advisable.

The selected mediator needs to be able to discern what the problem is, analyze the interests, issues, and needs to frame the conflict adding structure around the problem and laying the foundation for a pathway towards resolution.

Instead what too often happens? There’s a confrontation followed by police involvement. Restraining orders are issued, a court hearing date is set. Any neighborly relationship is now adversarial. One decides to move. Life is disrupted by sleepless nights, and no end in sight.  Giving voluntary mediation a chance and finding the right mediator was the next right step in working towards resolution in this situation as it is in many business with business, business with client, and interpersonal relationships. Looking at conflict as a process requiring problem solving is a skill many mediators have.

Whether in our homes, schools, communities, or workplaces violence is a very serious problem. Worst case is ignoring it or pretending it is a one time occurrence without considering third party intercession.

There is an aggressor and a victim and sometimes but not always an instigator.  When it occurs we have to be careful we don’t further victimize the victim. That may seem totally logical and even counter-intuitive, why would anyone do that?  One reason encountered is the victim blames themselves. Another is that in our process on resolving conflict we may focus on the aggressor as the key to resolution.  For some reason we may be driven to understand why the aggressor committed the violence. In doing so we may give an aggressor an opportunity to claim provocation and the victim may begin to shift responsibility to themselves. Not being a psychologist I can only offer observations and my own experience in dealing with these cases.

A few steps to guard against creating an imbalance or worse is to:

·         Use terminology which clearly identifies the role each played in the violence. In most cases P1 you were the aggressor, P2 you are the victim.

·         Give each equal time for input.

·         Be careful in dealing with issues of blame. In my private practice I spend some separate time with each party in order to gauge what they will bring to a joint session.

·         Look for ways to create a dialogue between the parties by for example getting enough background to understand the environment within which the parties have interacted. Doing that often results in the parties engaging in dialogue.

·         Be careful and cognizant of emotions at play in these situations, the body language, gestures, etc. Intercede when and as necessary.

·         Summarize, reframe, reflect often as the other side may only hear when a third party says it.

·         Allow sufficient time for breaks and take them when progress stalls or starts getting counterproductive.

·         Don’t lose heart. In many cases resolution is possible but the parties have not yet figured it out.

·         Search for background, context, other factors behind an episode of violence.  There may be one or more issues there.  For example in a workplace context look for problems at home.

These cases are difficult. Keep in mind that in the best interest of the parties it is not just resolving past violence but in coming up with steps to prevent and avoid future conflict which results in violence.

At a recent seminar I heard a complaint about mediation voiced by an attorney who bemoaned the cost in time and money to her client when she asks for $100K and the counter-offer was $2,500 and neither side budged no matter how many hours are spent in the mediation. I didn’t hear too many great suggestions. The next time I was tested in this manner I asked, “How do you expect me to bridge this gap.” Response, “that’s your job.”  Great!

Why do clients come in with such divergent views. Some time ago I gave up trying to understand when I asked “where did you get that number?” Answer –“I pulled it out of the air”. That attorney left the mediation for a preposterous reason, leaving his client to face a declaration of impasse by herself. Good faith bargaining? Malpractice?

So, this time I suggested “let’s not waste our time and why don’t we go home so you can get your case ready for trial?” That changed the dynamics in the mediation real quick. Lucky stroke? In this particular case, yes. Sometimes circumstances dictate a quick retreat from  seeming impasse. What else can I do? Well, one thing I know for sure and, that is, even though the clients may initially not mention there is money involved, ask them. There’s nothing worse then spending hours negotiating on everything but money and then find out there are these extremely divergent amounts being requested and counter-offered.  By that time the parties are exhausted and you can’t get anywhere. Sometimes it’s the seemingly nicest and most gentle negotiators who lead a negotiation down this path. Maybe it’s their negotiating strategy.

At times a party hasn’t even thought about the money because of emotions involved in other issues. They need time to think about money during the negotiation, but they need the issue on the table early on. Of course there are cases like neighbor disputes which don’t involve money but many cases if not most, do.

Then there are the more tricky ones like when it comes to workplace discrimination where an employees demand is ridiculously low, lost (minimum) wages, and they totally believe in their case, while the employer doesn’t buy either the demand for money or the case itself. Both sides spend more money in time and fees then in settling. Those cases can be tough.

If it’s about the money deal with it. The rest follows, is often the rule in cases involving money and other issues. Don’t declare impasse without knowing there’s a money demand because money can often soften a lot of pain. Maybe, it’s the American way.

I live on an island where so far, space and distance from the mainland limit the number of residents and yet we have our share of conflict between teens and teens in conflict with adults.  We do have a peer mediation program at a number of our schools but at fewer schools then before. 

I’ve had a number of cases involving teens and one highlight of dealing with teens has been highlighting peer mediators in our ACR Hawaii and MCP, Inc. sponsored conflict resolution day celebration in 2008. Our program can viewed at http://olelo.granicus.com/MediaPlayer.php?view_id=19&clip_id=6704.

In mediation cases I’ve dealt with teens in conflict in neighbor with neighbor disputes, conflict between teens, and with teens and their employers. One lesson out of all of this is - we need to do a better job developing negotiation skills in our teens.

Parental involvement and support in negotiating rather than continuing adversarial confrontation is also key.  The role of parents is so critical. Often they are a tremendous aid in teen conflicts while at other times they can be part of an issue becoming overly adversarial to the detriment of reaching, what would otherwise be just fine if only the teens are involved, agreement.

I’ve also been involved with young adults, some just out of their teens, in parenting disputes due to separation of partners or even divorces with children.  In all cases understanding the differences in life experience, sometimes even naiveté, are elemental to grasping what a teen considers to be important for them. 

Another aspect is ascertaining their expectations. Sometimes they are too high while at other times ridiculously low – striking a balance (do we mediators play a role in that balancing?) can become more difficult.

Overall however, it is unwise to underestimate teens. They can be creative, insightful, and flexible. From them emanates optimism, resiliency, and natural talent. They are a joy to deal with. And as a mediator I realize I’m not their parent and accept that sometimes they view me as just another adult making their lives more difficult. I learn a lot from these encounters. Agreements are reached.

In a business with business relationship

Owner @ 15:54 PM

What are examples of benefits that conflict resolution processes bring to a project team?

1. Proactive conflict avoidance, prevention, and resolution, while minimizing post project claims.
2. Project focus (and progress) is maintained.
3. Consistency in problem solving.
4. Consistency in preparation required by participating parties.
5. Ease in educating across project portfolio teams.
6. Ease of implementation.
7. Cost effectiveness, cost avoidance, at times cost savings as conflict resolution opens up opportunities.
8. Is readily incorporated into contracts including agreement on who to use for facilitation, mediation, and arbitration (which is already a widely used means of resolving disputes by a fact finder arbitrator).
9. Leads to development of alternatives disputing parties would otherwise not air or consider.

What are examples of facilitation, mediation, and arbitration issues in project conflicts.

1. TS is having a disagreement with one his suppliers over the status of modules representing critical steps in the process.  The discussions are becoming counterproductive with emotions running high. They need a third party to agree to a process by which to objectively determine the status along with the reasons behind any delays.  A mediator intercedes to guide focus them on a process by which they agree to proceed without disrupting on-going efforts.
2. Owners team needs facilitation of a problem solving effort involving a problem in the field involving software, hardware, and a key utility system.  The facilitator guides the participants using fishbone diagrams.
3. There’s a conflict developing over costs being charged by a contractor providing a one time service.  He is willing to have an arbitrator utilize fact finding and rendering a decision. The arbitrator guides the participants through a process specifically modified for these types of problems in project execution. A post project claim is prevented. Fact finding is facilitated because of the currency of the issue.

Having carefully defined the processes to be utilized in the teams charter, SOP’s, and contract, etc. the owner contractor processes are utilized to resolve internal and owner contractor issues.  Arbitration is handled by owners procurement and contractors sales manager utilizing the facts provided by team members involved. The teams time is utilized to manage continued progress in getting things done. The PM and contractor management is only involved as appropriate. Owner and contractor managements reserve the right to disagree and proceed through to litigation if they do not feel agreements reached are in their best interest.

More to follow

Construction Project Team Conflicts and Project Management