Mediate with LH, LLC

In mediation what is an opening statement?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 use 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.