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

Mediation and Networking

What does mediation and word of mouth networking have in common?  The answer is clients obtained through word of mouth referrals. Better yet are qualified referrals. Can a mediator succeed in regularly getting qualified referrals through a diverse business referral network? I’m finding out. I am a member of the Living Green Chapter of BNI.

A referral takes three people;

·         the giver (making the referral),

·         the receiver of the name of a person, and

·         the subject (the person needing the service). 

I have provided referrals and I’ve become the groups trainer.  Being on the leadership team raises my contact with the group and my visibility so that my colleagues can assess what I can do on a weekly basis.

How does my business network group work? In our chapter each of us gets 60 seconds each week to tell our business referral partners what we do, how we’re different from our competition and the type of client we are seeking.  We schedule one to ones to learn about the other members business and for them to learn about mine. 2 or 3 times per year I get 10 minutes to explain to the group what I do. I’ve been involved for almost 6 months now with very limited success.  There are still members who think of me as some kind of attorney. Let’s start with a list why I may not yet be getting referrals on a regular basis.

·         Perhaps I’ve not yet connected with my network and my network partners are not yet prepared to give referrals. They may not know what I need.

·         They may not have an objective standard by which to measure my performance. I don’t provide them with testimonials.

·         They may not have easy access to my ideal prospects.

·         I may not be breaking down my needs in bite size pieces they can use in making a referral to me.

·         They may have a concern with privacy issues. 

It is a lot easier for members of my group to make referrals to someone running a salon, fixing cars, selling insurance, or handling real estate. It is easy to assume that there is conflict in each of the areas just mentioned. However, even though we know each other fairly well members of the group have a hard time relating to mediation. Most people can relate to attorneys. Many have not been involved in a legal dispute. Most have not been involved in mediation. So, members of my group may not feel comfortable and take the step of suggesting mediation to a client who says they have a pending separation, divorce, a business issue with a client, a property dispute, because they just don’t understand mediation as a process. Think about it, they get their hair done, their cars fixed, they have purchased insurance, bought or sold property. They can relate to those activities. Not so with mediation.

So I am:

·         Developing and executing a system for getting referrals. Some steps:

·         Educating givers and explaining my client needs well

·         Providing focus and being consistent is what I’m asking for in terms of clients

·         Breaking down my client needs into bite size pieces they can work with in those instances where they learn of a conflict in progress or a desire to avoid and prevent conflict

·         Practice givers gain. Give referrals. Bring visitors. Attend the weekly meetings. Spend one or two hours on networking and referral development. Attend at least one other networking group meeting as often as available.

·         Develop and highlight testimonials.

I'll follow up with results over the next several months

Power Teams

 As a member of a BNI® Chapter I’m learning about power teams which basically encompasses professionals serving the same clients but in different ways.  The beauty of this concept is one place shopping. In order to form a power team there has to be trust and a willingness to utilize word of mouth referrals.  In referrals there are a giver, a receiver, and a subject (a client). An example in a mediation context is a family law practice. A mediator involved in family law wanting to serve as a hub may develop a relationship with family or child counselors, tax preparers, real estate professionals, and perhaps family law attorneys to whom the mediator refers his clients if the need arises.

In BNI there is a concept of givers gain which means for every referral one gives it’s highly probable one will get and more. Isn’t that what we need?

Great in theory in practice it takes a lot of work. For example in a BNI chapter I spend 90 minutes each week meeting with my group. To practice what I preach I am told that I should be spending an additional 1 to 2 hours in working on getting referrals for my chapter mates and attending at least one other networking group meeting. That’s a significant investment in time and effort. I believe that having a power team within such a chapter will result in a better ROI so I am actively looking for a way to build such a group within and without my Chapter.  Being in a leadership position within a networking group is also an advantage because people see you every week and can thus form a more thorough understanding of who you are and what you do. I am a chapter trainer. Here I am speaking as a mediator but no matter what you do networking is currently a must. Public advertising does not seem to do much for mediators. Expanding our circle of relationships to other professions who deal with the same clients but in different ways appears to be a better approach.  Time will tell.

One of the greatest needs in our mediation environment is lack of public awareness. We’re going to start addressing it as an issue through our public television network. We are going to produce a series for broadcast with an intent of educating the public there are alternatives to avoiding, preventing, and resolving disputes without litigation.

Our 30 minute segments will consist of a 10 minute vignette followed by a panel discussion. Our vignettes will at first be simple starting with a teen dispute, then small claims court, a segment on facilitation of a discussion about a community issue. We’re developing a script for child parenting planning for divorcing or separating couples, special education, and researching a landlord tenant and business dispute. Should we succeed we’ll move on to more complex cases and move to arbitration. Somewhere in the mix we’ll throw in a negotiation scenario, traditional processes (we’re in Hawaii ), and a few interviews of outstanding practitioners dealing with extraordinary situations.

Since we’re doing this as a public service our efforts require volunteers and we’ll use the filming capabilities of our public station.

If you have a favorite case scenario you want to have considered don’t hesitate to let me know. I might just use it and we’ll see what we can do to provide you a copy of the vignette. We’re looking to educate and be provocative but in a fun way. Join us in our endeavor through your suggested scripts.  If the topic is complex we may divide a segment to carryover two sessions.

Air dates will be posted on this blog. You might have to come to Hawaii to see them through our public network. Wow, now it’s getting really ugly, no?

We have one video on Olelo Celebrating Conflict Resolution Day 2008 on their web site on demand. The celebration featured peer mediators and professionals speaking about what they have been doing with their mediation skills.

With Aloha

Workplace discrimination claims and defenses involve specific laws. Attorney involvement is pretty high. The process of resolution of a discrimination case can be a long one. An employee has often been let go, fired, or moved on. Emotional tolls on both sides can be high.  Ok emotions are probably not as high a level as in divorce but emotions are still in play.  Mediation offers a great chance to resolve claims rapidly.  As a mediator in employment discrimination cases, using a facilitative approach, with attorneys representing Plaintiff and Defendant, I find it challenging to gauge and act on whether the road to meaningful negotiation hinges on recitation of the facts by aggrieved party and rebuttal by the employer or whether facilitating discussion about the legal basis of the claim and defense will be more productive.

1.      If I ask the attorneys to explain there respective positions they jockey to present their adversarial themes. This may help their clients to better understand the legal basis their attorneys are advocating. In addition I find it is more likely the attorneys will more quickly disclose their respective demand and counter offer (if there is one). I think attorneys find making an offer and counteroffer more natural after they present what their case is about. They do sprinkle in certain facts favorable to their clients position. They provide a framework for a case. The main challenge for a mediator can sometimes be to keep them from interrupting each other.

2.      On the other hand if the approach taken is to ask Plaintiff client to state their claim it is not unusual for them to put their case forward with a lot of emotion and focus on the wrongs perpetrated on them by their opponent, for example the supervisor.  They focus on attacking their opponent, often personally.  These personal attacks may sour the road to progress. However, venting in this fashion may be just what one side or the other needs before productively negotiating.

I believe mediators and attorneys will debate whether and which approach is more productive.  Maybe it is case specific. Maybe a balance can be struck between the two, the legal and a client’s perspectives. There may be other approaches.  One more note, when it comes to the money, once the parties know there is an offer and counter-offer a channel to resolution opens wider even when the sums are separated by orders of magnitude (e.g. P asking for $100K while D counter-offering $2K). The challenge for the mediator then is to bridge the monetary chasm (ideas on how to do that will have to be the subject of another blog entry).

One potential clue where to start is who’s doing the talking for each side.  If it’s the attorneys, they will be advocating and the opposing attorney will put forward his clients legal position. The result will be an issue or issues.  Should a legal exchange take place a challenge for a mediator, especially one not trained in the law becomes, what does a mediator do with the information?

One simple approach is for the mediator to summarize what each attorney has advocated and convert the legal difference in interpretation into a common problem statement.  For example in a disability claim one attorney may argue the condition is a disability covered by the laws while the other argues it is not. This is a basic issue having an impact on moving to negotiation. To facilitate movement towards negotiation a mediator might say “Plaintiff’s case is that their condition is a disability covered under …. while Defendant’s case is that Plaintiffs condition is not a disability covered under … In order to reach agreement each side is going to have to consider to what extent this difference in legal opinion influences their negotiating position.” As always the decision whether to continue further discussion on an issue like the example is left to the clients and their attorneys but at least an issue is aired in front of the clients with an opening for the attorneys to continue their discussion if they feel it is productive.

When there are multiple legal questions and issues involved in these kinds of cases it becomes more difficult to just simply summarize and identify a legal difference as an issue.

If, however, it’s clear the client acting under the attorneys advice is going to do the talking about the grievances they have I stand ready to listen to understand their perspective, reframe, reflect, and reduce their respective positions into a common problem statement. Using the same example, a disability discrimination case, I might reduce what is stated into “Plaintiff is claiming they were fired because of their disability while the Defendant is claiming the firing was solely because of poor performance. Plaintiff is requesting money damages of $... and reinstatement while Defendant is offering $... but not offering reinstatement.” In addition I have to be ready to deal with the character issues which will come up about the other side’s client.  Positions can get dug in worse when there are character attack salvos between the parties. Part of the mediators challenge is to know, and whether to react to personal attacks which become more global in order to keep a client focused on their discrimination claim.  It also becomes a question as to what to do with the personal attack information?  For example if a party recites their opponent is a dirty no good rat who should be fired and banned form ever working or supervising again and he also cheats on his wife, it may not be a good idea for the mediator to reflect that sentiment .  On the other hand failure by the mediator to reflect these sentiments may offend the reciting party to the point of intransigence.

If a mediator is like me, predominantly a problem solver, in workplace discrimination cases involving attorneys one approach may be:

·         Where are we in the process of resolution of this claim?

·         Is the attorneys or the client going to do the speaking and who is going to do the negotiation?

·         If the client is going to speak proceed to an exchange of grievances.

·         If it is the attorneys what is the theme or the legal basis for the claim and what issues do they see in each others claims?  Let the discussion at least get to the issue identification stage.

·         Is there a money damages claim and counteroffer and authority to accept or reject offers and counteroffers?

·         If the parties and their attorneys acknowledge the problem statements are indeed reflective of their legal positions determine with each side whether there is any point in delving further into the legal issue as a means of moving towards negotiation.

·         An exchange of grievances regarding the claim and defense and identify the issues involved. Formulate problem statements on the issues and what needs to be resolved to move towards negotiation.

·         Negotiate on the issues until such time as the parties are ready to resolve.

·         Reaching agreement, discussing BATNA, not yet ready to resolve (schedule a follow-up session and outline what will be mediated).

Discrimination cases are at times a question of economics but underestimating or ignoring the legal issues involved in these cases is risky to reach the point of negotiating resolution.  With attorneys present encourage client’s attorneys to discuss their legal themes and differences they have with the others case to expose issues which impact their willingness to negotiate. If the attorneys and their clients have decided their client is to take the lead listen to their grievances. When clients only speak there is a risk that there are unstated legal based differences which will impact not only a willingness to negotiate but potentially doom the mediation. In addition recitation of grievances in these types of cases often take on a tone of being personal with increasingly global attacks on character creating further resentment and building intransigence in positions. One last thought on the benefits of flushing out the respective legal basis in workplace discrimination cases is that these discussions also create a framework around which to base and focus the discussion, but that may be a topic for further discussion in a future blog entry. 

Educating the public on ways to deal with dispute, prevent, avoid, and resolve conflict is a goal every practitioner must consider and where possible undertake.  In my case, here in Hawaii, we can utilize public television as a channel for disseminating information.

We can utilize the public channel studios for the filming, editing, and finalization of educational pieces base on the sponsorship of non-profit groups.  We have several who are willing to sponsor.

Our efforts will result in the production of a number of scripted scenarios which demonstrate such processes as mediation, facilitation, arbitration, etc. If you have any interesting scripts you are willing to donate to our effort (we can acknowledge donations) please let me know.

We will use the role played scenarios as the basis for a panel discussion the day of broadcast.  We hope to recruit knowledgeable, interesting, and focused practitioners and users of our services to discuss what occurs in the story lines for broadcast that day.  Here in Hawaii I think we can call it “talk story”.

Example topics we’re considering include:

Contract dispute

Construction

Special ed.

Landlord tenant

Med. Claims

Probate/elder care

If any of you have produced or seen programs of this nature please do not hesitate to contact me.  We can acknowledge but we cannot reimburse, pay, or advertise in these productions.

Collaboration and Technology – Initial Efforts

Collaboration is working together towards the same objective.  It can be adversarial and still collaboration.  It is often adversarial in mediation. Clients can keep secrets and even ask us to hold information they provide to us as confidential, although I think this concept is going to get worn down when they give us fraudulent information as a means of attempting us to move their negotiation strategy forward. They can provide us selective information which is either meant to focus us on their strategy or is out and out advocacy.

Believe it or not I’m looking to technology to help expand my ability to improve outcomes in collaboration.  From what I read there are already numerous packages out there used by law firms and even shared with their opponents.  One example is software used to collaborate on and share documents.  I’m working with one of my BNI Living Green members to consider WordPress for use with document collaboration and I have one project I am pursuing, trying to entice two other software manufacturers who I consider have tools very helpful to my collaboration interests: decision making and workflow management in capital project conflict avoidance, prevention, and resolution.

Undertaking these efforts may not bring immediate financial benefit.  Does anything in mediation do so? However, for collaboration to work it needs to be efficient, to the degree possible, analytical, have integrity, and act as an agent of transparency.  As our client base expands beyond our own state and perhaps even becomes global the use of software towards achieving this goal becomes more pertinent.  Of course security is always a concern and must be included in  any consideration.

As mediators we constantly face challenges when clients actively maintain a veil of secrecy, advocate their positions aggressively, and selectively reveal data which serves the purposes of their hypotheses in a mediation. At times this creates an adversarial collaboration much akin to what lawyers practice and face every day. Figuring out how to merge these activities into "problem solving" towards mutual agreement is a challenge. It requires considerable skill so as not to unwittingly become an advocate for one side because they were more selective and focused in the data offered which is part of their negotiation strategy, were better advocates, and held back secrets material to collaborative problem solving. We don't have an oath which clients take to tell the truth.

Although each case is unique, over time and cases, a mediator encounters similar issues, which, in my experience include:

·         Anger by one parent towards the other or between both of them which significantly taints a negotiation and detrimentally impacts agreement on reaching a child parenting plan.

·         A loss of control over the way the other parent views a child’s needs. An example is sports versus other activities.  Even more serious are issues over the differences in the child’s environment when with the other, who a child may be left with or even the presence of people, like a new significant other for the other parent.

·         The view of grandparents or others with whom, when they were a twosome, were very friendly versus the relationship now existing when the two parents are separated.  At times those former relationships endure and both parents and the child benefit or they become distressing if not destructive thereby impacting a child.

·         The role of a child in decision making not only about themselves but also with regards to the parents. For example,

Child: “Daddy I want to stay with you one more night. Can I?”

Dad: “Ask your mommy and if she says it’s ok you can.”

Mom: “Why is Dad passing the buck, the answer is no.”

Or

Child: “I don’t want to stay with …”

Mom: “ I understand how you feel and here’s what we’ll do …”

Later, a Disagreeing Dad: “I can’t believe you did that you $%&^.”

It’s sad when a parenting plan falls apart because of any single or combination of the above issues become impasse driving demands by one parent of another unwilling parent. Finding no easy answers results in either giving up by the parents or in a lot of time dealing with each of the issues and resolving each problem, one at a time. It does become a lengthy process. At times resolution follows or impasse continues to the court house steps, trial, and into the future until it boils over yet again. “Best interest of the child”?

Aloha:

For additional articles vist my web site at http://www.mediate.com/mediatewithlh/ .

I’ve mediated an increasing number of cases involving child custody and visitation or parenting planning. I wanted to reflect upon and share some thoughts about circumstances which impact these cases and my need to focus clients on best interests of a child.

It’s nice to have simplicity, maybe a single issue to mediate with collaborative parents, who just need an intercessor to bridge small gaps. These cases sometimes occur.  More often situations are complex, requiring significant efforts to simplify complex issues and sets of interrelated issues so agreements can be achieved.  A few examples of complicating issues impacting parent’s ability to focus on their child include:

• Stigmas which have a lasting corrosive effect. For example a reversal of social or economic status or both derailed the relationship and create a lasting flash point.
• One or both become angry, some violently upset about the separation or divorce. Restraining or protective orders are in place. Child transfers may occur at a police station or a public place.
• Unmarried couples with informally acknowledged paternity and child custody arrangements run into difficulties in holding to the informal terms in changed circumstances.
• A partner desiring, even obsessed, with desires for reconciliation cannot let go.
• From birth, through several years before the break-up one parent has been a primary care giver, in some cases giving up their professional pursuits, and the partnership ends. It is only after the break-up the other parent claims a significant interest in their child.
• In the changed relationship communications have become difficult and often lead to emotional outbursts. Degraded or worse communications curtail discussion of not only specific issues but create a ripple effect on every other aspect of the partnering arrangement which the two are seeking to establish or maintain with regards to their child.
• Grandparent or extended family involvement complicate parent issues.
• Listing a few more:
• a new partner for one of the parents,
• a need or desire to move, disagreements over schools, religion,
• different priorities about a child’s physical, social, or intellectual activities and development,
• changes in economic circumstances. 
• reticence to disclose changes in circumstances for fear of a loss of face, or fear this may have an impact on existing custody arrangements.

So, as a mediator, I can encounter parents and their relatives fighting over a child for access or control with protective orders in place arguing about visitation rights, child support, and a whole host of conflicts over what is in the best interest of their child.

At times they may come to me with what may seem like they are tantalizingly close to agreement because they produce pieces of paper representing unsigned agreements. They get close but do not sign any agreement and as soon as they leave a mediation they revert to being dysfunctional. Or, maybe they just cannot close a deal.

Peoples circumstances coming into a mediation are too numerous to list.  Gaining the parents confidence, trust and willingness to communicate their many issues is a double edged sword. On one hand, information provided may be really useful towards resolving an issue. However on the other hand, information overload can sometimes result. Or they may communicate so many issues they create in themselves unachievable expectations which spoil mediated results. In all cases complexities have to be simplified and interrelationships established within achievable boundaries. Mediation does not solve the myriad of issues which arise in partnering a child through adulthood but can be utilized on mutually agreed upon priorities with, hopefully, a potential and concomitant improvement in communications and movement towards being collaborative parents.

In Hawaii, and I hope everywhere else, the family court concept for parenting is “in the best interests of the child”. When I start a mediation I emphasize and keep parents focused on the concept. At the outset and almost universally parents agree this is the principal they wish to achieve. Unfortunately, sometimes, to them, this means excluding the other parent because they believe the other is totally unfit. And, yes at times this might be true. It’s most unfortunate when one parent has a focus on, and utilizes a child as a means of getting back at the other parent.

It’s most gratifying when parents achieve a state where they mutually accept a partnering relationship and begin developing a plan, through problem solving because of the changed circumstances in their relationship to carry their plan forward until the child attains adulthood. However, because they start in this fashion does not mean they actually maintain it during the period of time their child is under their control.  Over time I see parents returning to mediation when their partnering starts to falter or new issues, open up old wounds or create new ones.

Another interesting factor which raises many issues are physical and legal custody questions. Too frequently a parent sees these two factors as weapons. There is a lot of play and time spent on these two questions. At times they become so burdensome to parents they lead to near or actual impasse. At other times they not only lose focus on the best interest of the child, they actually give up progress they have made in other aspects of partnering their child through the formative years. I don’t dispute the criticality of the custody issue, it’s the cost when misused.

When the parents have gone their separate ways the ideal mediation in child custody and parenting planning come from parents who actually mean what they say and work together to achieve what both can agree upon as in the best interest of the child.

As a mediator and parent of four children I agree with, and fully support the concept of best interest of the child. I am glad to help parents attain an agreement to co-parent which results in both of them being fully involved as their child grows. I accept when they agree to less. In either case I love an image where both parents are present for their child’s graduation or Eagle Scout or like achievement with the child thanking both of them for the part they played in preparing them for those moments through partnering.