Mediate with LH, LLC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s highly desirable to:

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

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

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

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

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

·         Take a break.

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

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

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

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

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

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

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