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.