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.