All posts by Diane

Civil Conversations

I recently had some frustrating political conversations with a friend, and decided that what was needed was to establish ground rules for the conversation. The rules were simple. First, one of us could posit a thesis or make a statement that we thought was true. If there was disagreement about facts, we could try to establish the facts. Once the facts were established and agreed upon, we could each set forth our opinions and each would have to respect the opinion of the other. This process worked so well, that our conversations became quick and to the point and our frustrations abated.

Separating out fact and opinion is often the remedy for a conflict. In a mediation, one party may establish facts that the person believes leads to a certain conclusion.  However, very often the facts are not in dispute, but the conclusion that is drawn is just one of many. So, for example, in a divorce, it may be clear that the budget does not support all the expenditures. But the solution of one party on how to cut the budget is that person’s opinion and can be debated.

We sometimes talk about the “position” of a party. But another name for it is an “opinion”. The position the party has come up with is an opinion on how to resolve the dilemma.

In heated debate in political conversations, in family discussions, in business or non-profit organizations, fact and opinion are often conflated. When they are teased apart, the way forward is much clearer. Once the parties agree on the facts and agree that each person’s opinion must be respected, the discussion becomes quieter and more thoughtful as each person tries to understand why the other person holds the opinion they hold and whether there are any areas of agreement that underlie the different opinions.

The challenge is to keep the civil discourse on this level at all times so as to avoid frustrating and heated arguments that confuse fact and opinion. This seems to be a difficult task. Compounding the task is that individuals in their personal lives are not always open to hearing reminders about ground rules, or don’t feel that ground rules should be necessary in a personal conversation. Even among my mediator friends, it is difficult to keep conversation on this level. My personal solution is to try not to be a stickler. If a particular conversation is not important to me, I let it go even if I felt hurt that my particular opinions were discarded as “wrong”. However, when a conversation is important or when it is repeated over and over again in a particular relationship, it is time to explain the frustration (without assigning blame) and suggest ground rules. Hopefully, among reasonable people, these will be respected and observed.

Is There Good and Bad Mediation Practice?

Wow! I’ve been overwhelmed with work and haven’t posted in months. But I’m back now and thinking about the topic: Is there good and bad mediation practice?

So, first, of course, there must be some completely unacceptable behaviors by a mediator. But within the realm of reasonable professional behavior, can we categorically say that some strategies, styles, approaches…are good or bad; better or worse across the board?

It seems to me that parties come to mediation for different reasons, and that their goals (stated or unstated) will determine appropriate mediator behavior. So, the approach a mediator takes may vary widely depending upon the goal of the parties (and, perhaps, whether they agree on the goals or have different goals).

So, for instance, if the parties’ goal is to come to a resolution quickly and avoid going to trial  in the coming week (whether in the commercial, marital or another context),  different mediation strategies may appear to be reasonable in that context than if the parties’ goal is to see if they can come to a resolution that resonates with both of them before they decide whether to see a marriage counselor or consider ending their relationship.  These two situations are so different that they represent two opposite ends of a spectrum. At one end is a mediation in which the goals relate to figuring out what each person truly wants and needs and seeing if there is common ground and the other end is one in which the urgency of coming to an agreement to avoid a more expensive and less desirable result is extreme. While both situations involve some issues regarding time pressure as well as the desire for a resolution that feels right to each party, the time concerns of one situation are overwhelming, and in the other case, the need for personal satisfaction with the result dwarfs the time concerns.

One can imagine that all mediation fall at some point on that spectrum and that the strategies used by a mediator may vary depending on how close to either end of the spectrum one is.  One can imagine that there are other spectra as well, for example:  the need to keep costs to a minimum versus the need to feel personally satisfied with the agreement; the desire to have a result that comports with what the law would provide versus the desire to have a result that is personally satisfying;  the parties’ desire to speak for themselves versus their desire to be represented; and the extent to which the parties are in  synch regarding their mediation goals versus the extent to which they are not.

So, while one could argue that there are a myriad situations and that different approaches may be desirable in different cases depending upon where the parties are on the various spectra, it is probably not true that there is no good and bad mediation practice. What is probably true is that it is difficult to develop a rule of thumb regarding good and bad mediation practice in the various contexts with the various variables.

Perhaps what can be said, however, is that certain strategies are always desirable to the extent that other factors do not weigh very heavily against their prolonged use: so the attempt to understand the parties’ needs and desires is always good practice. But the extent of the inquiry and discussion may be of shorter duration in situations in which time or cost weigh heavily against their prolonged use. When time and money do not weigh heavily, however, and the parties desire a resolution that is personally satisfying, the mediator should have the ability and the inclination to explore these subjects until a result that is truly satisfying to the parties is achieved.

Similarly, when the goal of the parties is to find a resolution that comports with what the law would provide, a procedure should be developed that will facilitate that happening to the extent that cost and time permit. And when time is of the essence, the mediator should have strategies that move the matter to resolution quickly, while helping the parties find agreements that meets their needs and desires to the maximum extent possible. In contrast, when the parties care more about the discussion than about whether or not the matter is resolved, the mediator should be able to foster a productive discussion without making resolution a necessary goal.

When parties disagree as to the relative importance of time, cost, the role of the law, the need for personal satisfaction, it is a difficult juggling act for the mediator to try to help the parties find common ground regarding the goals of the mediation and to take an approach that satisfies both parties.

Needs and Interests

For many mediators, the starting point in a mediation is to identify needs and interests and then to work from there toward a mutually agreeable resolution.  In the view of these mediators — and based upon the seminal work “Getting to Yes” by Fisher and Ury — this helps parties move off their positions and toward a resolution that would be acceptable to both parties.  I posit that, while it is important to help parties think about their needs and interests (and I would add: desires), it is not always feasible to actually identify them. Helping parties think about their needs, interests and desires, rather than actually stating them, may sometimes be the best route to resolving complex, confidential and/or highly personal or emotional situations. In my experience, that is a high percentage of mediations.  In highly personal or emotional situations, parties may simply not be able to identify all the factors that are important to them. How often do we, as humans, really understand ourselves that well? Psycho-therapists and brain researchers would say that our cognitive brains only understand a portion of what we care about, and that the part of our brain that is inaccessible to our cognitive thought has important information that is valid and relevant. Thus, we need to help parties focus on both their “gut” (the part of their brains that is inaccessible to cognitive thought) as well as their cognitive thought. The interplay between these two modes of “thinking” will help the parties best access what is important to them.  The mediator is most effective when he or she is skilled at helping parties “think” in both realms as well as in helping parties check those realms against each other.  In the mediation discussion, the parties can discuss the needs, interests and desires that they are willing and able to put on the table, but in addition to those, the mediator should help the parties reflect upon the needs, interests and desires that are unspoken and perhaps unknown in the cognitive sense.

Impasse Mediation vs. Structural Mediation

Mediators often identify themselves according to the particular type of subject matter they mediate: divorce, construction, commercial, etc. The idea that they have is that it is important to be well-versed or expert in the subject matter area in order to mediate those types of cases. In contrast, mediators who have developed an expertise in mediation, per se, have historically felt that they can mediate any type of case.  These mediators often feel that it is crucial to develop a mediator mindset in which they maintain a strict neutrality regarding the parties and the decisions to be made in the case. They also believe strongly that parties who are distressed by a conflict want to have the kind of conversation in which each party feels heard and understood. Further, they feel that the parties want to be the ones to develop a solution to their disagreement, and with the right type of hands-off mediator interventions, the parties are capable of doing so.  These mediators also feel that the type of expertise that is required for that type of mediation involves a great deal of training, experience, self-reflection, mentoring, and inclination. Who is right?

I recently came to the conclusion that the difference between mediators who need to be well-versed in the substantive area in which they mediate and mediators who can mediate any type of case, is whether the parties are coming to the mediator to provide guidance and advice regarding the structuring of a solution to a problem or whether they are coming to the mediator because they are having a disagreement and want the mediator to help them have a productive dialogue that will hopefully lead to a resolution of the disagreement. I have dubbed the former types of mediators as “structural” mediators. In a recent article, I dubbed the latter type of mediators as “interpersonal” mediators. However, that might give the impression that these mediators only mediate interpersonal issues, which is far from the truth. I have come to realize that it would be better to call these mediators “impasse” mediators.

I think it is crucial for structural mediators and impasse mediators to have a respectful, focused and productive discussion to explore the services that each provides.  Each type of mediator would undoubtedly learn from this discussion what other types of mediators have to offer, and would also understand more fully what the strengths and limitations of their own service are. This type of discussion and analysis  has not been done.  Rather, each group of mediators avoids engaging in this disagreement (conflict avoidance?) and has simply decided to accept the various “styles” of mediation as though they are interchangeable and depend only upon the preference of the mediator. However, I do not believe that many mediators truly believe that.

I believe that if we devoted the time and energy to discussing, respectfully, what structural mediators have to offer and what impasse mediators have to offer, we could come to a mutual understanding regarding these different types of mediations. That understanding would serve as a means for parties to identify the type of mediator who can best address their needs and desires.  It is entirely possible that in any given case, parties may start out needing one type of mediator and may find that at a given point they need to switch to a different type of mediator to move forward in their case. Without an understanding of the strengths of each type of mediator, parties would not be able to take advantage of what each type has to offer and would not be able to get the best service possible.

Structural Mediation vs. Interpersonal Mediation

In the ongoing debate among mediators, questions frequently arise as to whether one needs subject matter expertise; whether a mediator should be evaluative or not; and how much training in the process of mediation is necessary.

I posit that there is no real debate. One must simply figure out what kind of mediation one is offering, and the process defines itself.

Specifically, when one is offering the service of helping parties structure a deal — whether it is a divorce, a commercial matter, a business relationship, or a matter in probate — the answer is clear: one needs training and experience in the subject matter to help the parties figure out their options and address all the necessary issues.

However, not all mediations are structural. Situations frequently arise either in the middle of a settlement negotiation or in the middle of a structural mediation; or simply in the course of ordinary life, when parties lock horns on a specific issue. The issue involved may be the entire issue between them or it may be a piece of a larger issue. In that context, they and the professionals working with them may feel that there is an impasse. However, a mediator who is expert in facilitative or transformative mediation can help the parties find a way to have the conversation they need and want to have and to work their way toward a resolution of their own making.

When we think of mediation in these terms — that there are two different types of mediators and two different types of mediations, it becomes easier to understand what type of training and experience — and what type of mindset and approach is most helpful for each.

Group Bonding Discussions and Mediation

I have noticed a particular phenomenon in some of my mediations when parties discuss things in a way that may be appropriate in a group bonding experience instead of discussing it in a way that is appropriate with the particular person in the room. A group bonding experience may involve like-minded people who speak carelessly about an issue because they believe they share a common perspective.  They may or may not realize that they are over-generalizing, and they may or may not believe the over-generalizations. That type of conversation may end up being inflammatory in a mediation, however, when care must be taken to speak accurately and fairly.

When people get together with trusted friends and family members in their ordinary lives, they often discuss their personal concerns in ways that follow particular patterns. So, if a group of co-workers get together, they may discuss their work environment or their bosses in a way that is partly true and partly over-generalized. This same phenomenon may take place among other groups who share a common role, such as mothers, fathers, etc.

When we are in these groups we enjoy this type of conversation and it helps us feel connected to others in the group. But it can become a problem in our relationships if we take the conversation and the attitudes expressed too literally and too seriously. It is important that we understand that the nature of the group means that there will be over-generalization and exaggeration, and that in assessing and discussing our own particular lives and situations in other contexts, we must be careful not to over-generalize, exaggerate or ignore the perspectives of the other party or ignore the nuances and specifics of our own situations.

Most people are savvy enough not to discuss the concerns of the workplace with the boss the same way they would discuss it with co-workers, but there are some common ways of talking about general roles of fathers and mothers, for instance, that may develop from old-fashioned attitudes about gender roles or from common societal attitudes that people may forget to question. They may end up believing these attitudes and forget that the other party — the father or mother — may not agree with the attitude and in fact may be furious if they hear it.

In a recent mediation between parents negotiating issues relating to the children, the mother expressed a generalized statement that may be the type of assertion expressed in the group bonding setting, but which was inflammatory in the discussion. She said that whenever the father has the children, “something always happens”.  The father exploded because he felt unfairly accused and also felt that his access to the children was being threatened because he was being deemed to be inadequate, unfairly. I clarified with the mother what her concerns were and conveyed the father’s concerns, and the mother quickly shifted to what felt to the parties to be a more nuanced and appropriate perspective.

Outside of the mediation context, I wonder what effect group bonding discussions have on private relationships. When a person buys into the generalized (and, possibly, biased) attitudes of a group bonding discussion, one sets oneself up for sabotaging one’s own personal relationships. It is important that if one participates in a group bonding discussion that the person not take the generalized attitudes expressed so seriously that they carry over into private attitudes.  Ideally, one would want to have private discussions with  someone with whom one shares an important relationship which reflects the truth and reality of that relationship. That can lead to a true private bonding experience. When one can enjoy both the group bonding experience (to the extent one wants to), and also the private bonding experience, it is truly win-win.

It’s Awkward

Like the rest of the world, I am completely charmed by Gabby Douglas.  As I was reading about her in the newspaper yesterday, a seemingly small thing jumped out at me and resonated strongly. In talking about her history of living with a white family while training for the Olympics, she reflected upon her experience in being the only African-American.  She noted how she would be surprised that the people she was living near were not familiar with the type of music she was familiar with, and how she was not familiar with their type of music. She summed  up the situation: “It was awkward.”

“It was awkward” speaks volumes about how far we have come and how savvy the new generation is in bridging differences. When I read those words, I recalled how I have been hearing that phrase from other young people, and stopped to reflect upon its brilliance.

As a mediator, I am profoundly impressed by the phrase. It is a simple, easy to say, “cool” to hear, convenient to use phrase that means: this is the situation; it will pass; it’s no one’s fault; no one is to blame; let’s not pretend though that it doesn’t exist.

What more than that can we expect in bridging differences? OK — perhaps we can expect some active effort in reducing awkwardness (or perhaps not, depending on the situation). But this phrase goes very far. To see how far, think of the things that people so often say — or if things are changing, what people used to say — when people feel that a situation is awkward. In my mind, the common practice is often to denigrate the behavior, culture or traditions of the other; or to comment on their different-ness in a way that makes it clear that they should endeavor to be the same; or to become defensive and defend one’s own behavior, culture or traditions as a way of creating a sense of superiority.

The phrase also highlights how difficult it can be to pinpoint the issue between people in a way that is neutral and helpful. Saying “it’s awkward” can be a very accurate and neutral statement of the issue between two or more people or groups of people. Finding a way to state the issue neutrally, is as we know, half (or the whole) challenge.

I am going to endeavor to remember this phrase  and how useful it can be, and to reflect how much we can learn from young people who have a new, enlightened, and idealistic view of the world.

Emotions are not a Fixed Commodity

I recently shared a personal experience with a friend. The details are not important. Her response upon hearing my story was to register outrage at someone’s behavior, on my behalf. I explained that I did not feel outrage, that I understood the perspective of the other person, and that I was able to move on from it without anger. She continued to insist, however, that what the other person had done was “wrong”, and seemed to imply that I should feel outrage: and that I was doing myself an injustice, or perhaps being made a fool of, by not feeling it.

In fact, what I felt at that point was that my friend was putting me in a spot. I felt, somehow, that I needed to persuade her of the legitimacy of my not feeling negative emotions. I reflected upon the reasons I did not feel foolish, and explained to her that it was better for me, as well as better for the situation and everyone involved, that I not bear a grudge about this issue, and I was happy that I didn’t feel one.

I present this story because this is the situation that our friends and loved ones often put us in. Further,  I believe that this type of attitude on the part of friends and loved ones leads us to learn to feel the very types of negative emotions that do us harm in our interactions with others and in our own peace of mind and happiness in life.

In fact, it was only my years of training in mediation, and my long history of self-reflection and ensuing self-knowledge, that gave me the strength and perspective to stick to my own (healthy) attitude. As a younger person, many years ago, I did not have that type of healthy attitude, and would have felt the expected levels of anger and outrage in similar situations. I have no doubt that my friend meant well, and I have no doubt that I am better off for being able to resist the emotions and attitudes she felt I should have.

My point here is not just that our friends and loved ones do not always do the best for us, despite their best intentions, but that the negative emotions we feel (and the positive ones as well) are learned over time. It is my belief that we learn to feel the particular emotions that we are expected to feel in particular types of situations; and that we are taught to feel those emotions and to develop those attitudes from our cultural cues — media, entertainment, parents, friends, and other influences.

We can’t expect society to change overnight, but knowing that emotions can be learned means that emotions can be unlearned. Each person can reflect on what they want to feel. Once they decide what they want to feel, over time, they can begin to feel it. We have the power to be who we want to be. The first question each of us must answer is who we want to be.

Four Simple Points to Remember About Resolving Conflicts

Conflicts are a frequent part of life, and it is in everyone’s best interest to understand how to avoid negative conflicts and how to resolve one’s own conflicts. The following is a very short list of things to keep in mind, that will go a long way toward that goal:

1 — Disagreements are normal and desirable. Without disagreements, we would all be constantly mouthing platitudes, and stagnating as individuals and as a society.  So, learning how to handle differences of opinion and different perspectives on a situation are necessary skills in life.

2 — Many disagreements — if not most — are a result of misunderstandings.  We are all different individuals, yet we all assume that others will understand our intentions when we speak and will interpret our words the way we meant them. This is very often not the case. Taking pains to check for understanding, to clarify one’s meaning and to explain one’s intentions — even more than once — can go a long way toward avoiding or resolving disagreements based on misunderstandings.

3 — There is usually more than one valid perspective about a situation. Most people know that there are two sides to every story, but when we are in our own conflicts, many times we find it difficult to really believe that. Reminding ourselves that we should solicit the other person’s perspective, try to understand it, check for understanding, and consider it in any solution we come up with, is the way toward resolving nearly every disagreement.

4 — How we speak can be as important as what we say. We are often unaware that our tone of voice, the speed with which we are speaking, the volume of our speech, or the fact that we are cutting the other person off mid-sentence, can be contributing to a sense that we are not respecting their input; or that we are angry, dismissive of their views, contemptuous or disdainful. Paying attention to how we speak and correcting any of these negative messages, is important in hearing what another person has to say and setting the stage for having them be willing to hear what you have to say.

Needs

It is a basic principle of mediation, that mediators should focus on the needs of the parties. While the needs of parties are always relevant, in my view, focusing exclusively on the needs of the parties as the mediator understands them or as the parties express them is often insufficient.

Why is this so? Well, the mediator may not intuit all the needs of the parties and the parties themselves may not understand all their needs. Moreover, it is probable, in my view, that nearly all individuals have needs that they are reluctant to admit to themselves let alone tell anyone else. And some of these needs may not be odd. In fact, I suspect that some of these needs are common to most people and may even form the foundations of our society. For instance, one need might be to conform to society’s expectations. Another need may be to not disappoint friends and family. Another need may be to feel successful, smart, capable, or to feel like a winner rather than a loser.

If all this is correct, how can the mediator address the dilemma that parties have needs they don’t understand or would not want to discuss?

In my experience, the way to address these below-the-surface needs is for the mediator to simply be sure to give plenty of space for each party to consider how things are going in the mediation, how they feel about the discussion, the agreement being developed.  The intuitive or subconscious parts of the mind of each party will alert them to whether any needs are being unfulfilled and will inform their responses. As the mediation continues, the intuitive part of the mind of each party will continue to reflect, consider and rebalance their needs. The creative parts of their minds will find a way to address the needs that are most important and reconsider and rebalance the needs that are of less significance. Finally, if the mediation is successful, the parties will check in with their intuition and say: yes, this feels good.

Self-Reflection

When one is involved in a conflict, it is an opportunity to discover oneself.  Questions such as: “Who do I want to be?”  and “What assumptions am I making about what I want to do or what will make me happy or what comports with my values or my morality?” can yield answers that not only have an impact on the direction of one’s entire life but on the conflict at hand.

One of the functions that a mediator can serve, is to ask parties to self-reflect on these issues.  How the mediator can do this, non-judgmentally, and in a way that is respectful of the privacy and self-determination of the parties is a skill-set. It can be done, however, and when it is done well and when the parties take the opportunity to self-explore, it can be a meaningful and productive experience for all.

Experts

The sensible use of experts is often an issue that arises in mediation. It begins with the mediator: is the mediator an expert? What is the mediator an expert in?

It then may continue to outside experts, when parties may feel the need to consult a financial, legal or mental health expert. Very often, when such experts are called in, the question arises as to what their actual expertise is in and how to tease out the parts that are the valid areas of their expertise from the parts that are educated guesses based on their experience, and lastly and most importantly: the parts that are simply their own personal opinions.

In my view, the sensible use of experts is to ask oneself a series of questions:

1 — Why do I need an expert?
2 — What specific information am I lacking that they can provide?
3 — Do I want them to convey that specific information to me so that I can weigh it myself or do I want them to make a recommendation based upon that specific information? If the latter, do I want them to tell me at each step of the way what the information is, how they are weighing it, and what their conclusions are? Do I want them to explain where they are getting the information and how reliable it is? Do I want to assess myself how reliable it is?
4 — Is the particular expert I chose able to follow my instructions and meet my needs in question 3 above? If not, how can I find an expert who will do so?

The bottom line is that an expert is not someone you throw your entire problem to and just wait for a result to pop out. An expert, when consulted appropriately, can be an extremely helpful aid to a problem. However, an expert, when consulted without care, can give you the false confidence to make exactly the wrong choice.

Facilitating a Conversation as a Bystander

One of the great things about having a good deal of training and experience as a mediator, is that it spills over into so many other areas of life.  Having worked very hard at helping parties communicate effectively in mediation, I have found that my skills in that area are an asset in conversations of all types.  As a mediator, I can sit in on any type of conversation, without preparation, and find a way to be helpful — if the participants wish it. So, for instance, if I am sitting in a conversation and I don’t understand what the purpose of the meeting is, or what the focus of the conversation is — that might flag a problem. I might be able to simply ask the question to clarify for myself and others what the focus of the discussion should be. If it is not clear to me, it is probably not clear to others — or they may have drifted away from it.  For some reason, I most enjoy this type of role — in which I can tweak the dialogue in such a way that I don’t affect the substance of what is discussed or decided, but help them communicate effectively and productively. In this role,  I am not the leader of the discussion. There is another leader in the room, or it is simply a conversation among two or three people. As a leader, I would have needed to know more about the purpose of the meeting and other matters. As someone who is facilitating as a bystander, I can attend to clarity, focus and communication, while others look to substance. This division of labor can be very effective in some circumstances.

Questioning Assumptions — the key to self-realization and conflict resolution

I look around and see an overload of discussion about mediation and conflict resolution. There is so much writing that it begins to feel that there is not enough focus. When I ask myself what is the simplest message I would want to convey to both parties and mediators, one of the most basic is to help parties question their assumptions.

Why is questioning assumptions so fundamental and what does it accomplish?

First, we make assumptions about what we want. When these assumptions are incorrect, we end up fighting for — and possibly getting — something we don’t even want and will not make us happy.

Second, we make assumptions about other people that may cause us to either trust them too much or not enough — or in the wrong ways — and which end up fostering bad decisions.

When a mediator notices that a party has an opinion about something that is based on an assumption — that this is what he or she is “entitled to”; that this is what society expects, that this is what is typical, that an expert says so, etc. etc. — then the mediator can provide a very useful service by asking the parties to consider in their own minds what they really want. Very often, the simple fact of asking reminds parties that they can invent their own solutions rather than assume that what is “typical” is what they must want.

A related phenomenon occurs when a party assumes the motives and perspectives of the other party.  In our society, we assume that we must retaliate against a party who has bad motives, or deprive them of the benefit they want. However, the other parties motives are not always clear. Moreover, retaliating may not be in our best interest when negotiating with that party and may prevent us from coming to an agreement. Instead, the mediator can sometimes reflect back the assumptions of the parties regarding their beliefs about the other party:  “so, I hear you saying that you feel that the other party is not a good mother?” “I hear you saying that you feel that the other party did this to hurt you”. Just stating these opinions often helps parties consider that the opinions may be somewhat incorrect or debatable. They often correct them: “well, she’s not a bad mother, she has just been preoccupied lately.” “well, he may not have intended to hurt me, but he did hurt me.” As restated, the opinions lose their force and help parties move past them. Most mediators know about reflective statements, but may not always use them to strategic benefit to question assumptions that the parties may hold.

If the mediator reflects back a statement that assumes a bad motive on the part of the other party — and the party agrees with it — a different scenario can follow. “So, I hear you saying that you feel that he did this to hurt you”. “Yes, I know he did”. The other party will then have an opportunity to respond. The ensuing discussion may help move past this issue, but even if it does not, the mediator can continue to question an assumption. “So, you feel that the other party did this to hurt you. Does that have any relationship to what you are looking to accomplish here today or what you would like to agree to?” Very often, the party will say no, and the issue of motive will be put aside.

Being able to identify the assumptions that each party is making about their desires and beliefs, and then helping the party consider those assumptions carefully (without trying to change their minds), is a skill that will help the mediator go far toward helping parties come to agreements that they can both agree to and both truly want.

We Each Have Something Different to Offer

It is no secret that there are many different approaches to mediation. In the world of mediators, we often classify them as facilitative, evaluative and transformative. Even these labels are unclear and possibly incomplete. Why do we have such vast differences in our approaches? I think one reason is that mediators are “called” to the practice of mediation for different reasons. So, some mediators want to help resolve disputes that are in the court system. They are often familiar with the delays, expense, and global dissatisfaction in litigated cases. For them, the goal may be primarily settlement. They often believe that any settlement on reasonable terms is a win-win situation and that the means to the settlement (within reasonable bounds) is less important than the fact of getting to a settlement.

This could not be further from the thinking of transformative and facilitative mediators. For many of these mediators (including myself), what draws them to mediation is — to put it broadly — the desire to help parties feel more satisfied. Many facilitative mediators believe that when the parties are able to craft the terms of the resolution for themselves, it will make that resolution satisfying. For other mediators, they see the added value of an  opportunity for parties to grow in humanity and relatedness by engaging in a process that helps them hear and respect the concerns of others and consider them with their own concerns. For still others, there is the desire to help parties reflect upon their own needs and desires more meaningfully and to understand themselves better even as they focus on understanding the needs and desires of the other. In my mediation practice, I often find that parties are at loggerheads because they each have certain set assumptions about themselves, the other, the world at large, the way things “should be”, what is “right”, etc.  I enjoy helping parties reflect upon their own assumptions and decide for themselves whether they want to follow those assumptions or re-think them. I find it satisfying that this process both helps parties feel more at peace with themselves and helps them become more flexible regarding the objectives of the other party.

The thing that draws each of use to mediation is likely to cause us to mediate differently. And those differences in approach will make certain types of mediators better than others for a given type of case.  I think it would be helpful for mediators to reflect upon what draws them to mediation and what they value about it. If potential parties understand what the mediator’s “mindset” is, they may be able to select the mediator whose mindset is most appealing to them.

Helping Parties Have the Conversation They Want to Have

How often have we all wanted to say something to someone important in our lives, and yet our meaning is misunderstood; our words fail us; or confusion ensues and we wonder what happened. The same holds true for parties, and for many parties this is the cause of their conflict.

As mediators, if we are well trained, we should have the ability to help parties have the conversation they each want to have. We should be able to give all parties space to express themselves; help them refine and convey their meaning, to hear themselves and reconsider their intent if they want to; help the parties understand where they are misunderstanding one another.

Very often, having the conversation they want to have is the entire result that parties desire. There may be no concrete disagreement beyond that. However, when there is a more concrete disagreement, having the conversation they want to have involves all of the foregoing plus some additional help in having a conversation that is productive in their eyes.

Parties often deviate from a conversation that addresses their concerns, to other types of habitual conversations which veer off the topic at hand to something easier and more comfortable, albeit possibly alienating or without purpose. When the mediator perceives this to be happening, the mediator can transparently note how the parties seem to have shifted topic, and ask whether this is what they would like to discuss, whether they feel this would be productive, or if not, whether they want to have that discussion even though it may not be productive. It is imperative that when the mediator asks these questions, that the mediator makes it clear that he or she has no personal opinion on the correct answer, and that any decision the parties make on this is fine. Parties generally respond to this type of questioning with clarity, greater self-awareness and focus.[1]

When they are at loggerheads, we should be able to have them step back and understand why they are at loggerheads. If each party sees his or her goal as achieving a very narrow and specific result — and these results are contradictory — they may feel at loggerheads. If the mediator points this out and asks whether they can each broaden the class of solutions they are considering so that both their interests and the interests of the other party are considered, their creativity may be stimulated.

Helping the parties have the conversation they want to have is a matter of hearing and tracking the concerns expressed by the parties, noting whether and how they may change during the discussion, sharing these observations with the parties, and helping the parties formulate a structure at any given point in the conversation. The structure must be one developed by the parties, but the mediator is the organizer. The parties are the creative force, and as they are creating, they are developing new self-awareness about their own interests, goals, and desires. As these new realizations set in, the mediator’s crucial job is to reflect to the parties what the topic is that they are discussing, what each perspective is on that topic, and whether that topic has shifted. If the topic has shifted, the mediator must note this to the parties and ask whether they want to switch topics or whether they want to complete the topic they were on. The answer is not clear. The parties may be shifting for a good reason. Or they may be carried along in a stream of consciousness. Only the parties know. It is the mediator’s job to ask and to bring it to the forefront of their minds.

When the mediator is able to continually bring this type of awareness to the parties, the mediator will often find that the parties have all the tools they need to self-resolve. The resolution may be simply that they now understand one another and do not need any type of agreement, or it may be an agreement of some kind. Regardless of the type of resolution, it all happens as a result of the parties having the conversation they want to have.


[1] For those with a mathematical bent, it could be noted that a conversation is a curve. At any point in the curve, the tangent is a straight line. The parties should always be clear about the direction of that straight line. Helping the parties consider whether they are on the right “tangent” and then correcting, is a crucial way that the mediator can help the parties develop a productive curve to their conversation.

Finding the Right Mediation Style for Each Case

There is a broad spectrum in the way that different mediators mediate, ranging from a careful avoidance of influencing the outcome to pressuring the parties or offering a view on the merits of the issues. In my view, the disagreement among mediators about how to mediate can be resolved by focusing on some distinctions among types of cases — rather than among the preferences of mediators — and coming to an understanding about what is appropriate in these different contexts.  Mediators should not mediate in the way that they prefer, but instead, should mediate in a way that meets the goals of the parties. And in my view, again, the goals of the parties are not necessarily that hard to ascertain. For example, if we were to divide cases up into several categories: litigated cases, divorce cases, non-litigated business cases, and interpersonal cases (community, workplace, marital, relationship, non-divorce family, neighbor, friends, etc.), we might see a trend.

In virtually all the interpersonal cases, it is probably true that the individuals would like to fashion a resolution that is personal to them, developed by them and very specific to their unique perspectives. This calls for a facilitative, non-directive, highly neutral approach which is intensely respectful of the parties’ perspectives, and which encourages a fostering of clear communication, insightful framing of the issues, and a party-based approach to resolution.

In divorce cases, some parties may want a very facilitative approach and some may want the neutral to make suggestions based upon experience and expertise (if the neutral has these). In these cases,  perhaps it would be best for the mediator to ascertain at the outset which of these two approaches the parties want, or whether they want a third approach of some kind.

In litigated cases, it is likely that some parties will want a resolution of the matter that puts the matter to rest quickly and gives them some of the financial result that they are seeking. In other cases, they may want a non-monetary remedy from the party (which the court may not be able to fashion), either in conjunction with, or in lieu of, a monetary remedy. This can be developed through facilitative mediation. Again, the mediator should ascertain from the parties which of these they are looking for, and whether they also want to consider the use of a neutral evaluator if appropriate to the situation.

In non-litigated business cases, parties are more likely to want a solution that is tailored to the situation. It may involve personal elements or it may involve easily ascertained objective elements. If the latter is the case, the parties may desire suggestions from an experienced and expert neutral. Or they may want to fashion it themselves. If there are personal elements that need to be resolved and the parties want to fashion their own approach and resolution, then a highly facilitative process is appropriate.

If mediators should mediate in a style that meets the goals of the parties, then how do we address the idea that parties do not know the potential of mediation and that they are only accustomed to forums in which there is a judge deciding the issue?

First, we must always respect the opinions, views, perspectives and intelligence of the parties. The final say is up to them. And if they are to have a final say, that means that they need to know the options. That means that the mediator should always have a discussion at the outset — either explaining the mediator’s approach and asking the parties if that appeals to them, or asking the parties what they are looking for and then deciding whether he or she can provide it.

Second, the mediator can take the opportunity to explain to the parties how the approach the mediator could take might be helpful to the parties. The parties may or may not agree, and that is up to them. So, the question is: how can the mediator explain facilitative mediation in a way that captures the imagination of the parties to see the potential when it is outside their own experience? That is the challenge, and despite the challenge, we must never skip the steps of ascertaining the parties’ goals and conveying the mediator’s approach(s). Because once we do that, we have abdicated our roles as  respecters of the principle of self-determination and have imposed our own opinions onto the parties.  And that is not mediation.

Standards of Practice in Mediation

In an effort to promote mediation and to avoid internal squabbling within the field, mediators over the past 16 years (since I became a mediator) have declared a truce on differences in mediation approaches.  At the same time, we have embraced certain standards of practice.  It is important to frequently look back at what mediation is, why it exists, whether our standards of practice are appropriate, and how to interpret them.

Self-determination. Self-determination is the fundamental tenet of mediation. Its reason is clear. Mediation is the one form of dispute resolution in which the only way to come to a resolution is by agreement. Thus, the parties must agree if there is to be a resolution. Hence: self-determination. The question, though, becomes whether self-determination means that the mediator can not make suggestions or put pressure on parties to come to a resolution that makes sense to the mediator. In my view, this is unpalatable, and does not promote the values that I personally believe in. However, is it unethical?

Neutrality. Neutrality is also a fundamental tenet of mediation. Its reason is also clear. Without neutrality or impartiality or lack of bias, the parties would not trust the mediator to be in the middle of their dispute. The mediator might manage the discussions in a way that will lead to a result more favorable to one party than the other. Yet, if that is the reason for neutrality, does that imply that any pressure by the mediator is unacceptable? Or does it mean that only subtle pressure is unacceptable? Or does it mean that only pressure based on bias is unacceptable? And if bias is the problem, is it bias related to the mediator’s view of the world or bias related to a preference as to the individuals in the case? Or is it bias regarding how the mediator views and assesses the particular facts in the case? In my view, any bias is unacceptable — it is not the way I want to practice mediation. And clearly, a bias as between the individuals in the room is objectively unethical. But if the mediator has a view of how the case should be resolved and if the mediator is otherwise unbiased as between the parties, is that a failure of neutrality? Is it unethical? What if that view happens to be one that favors husbands over wives or wives over husbands, for instance? Would that not indicate bias as between the parties based upon gender? What if the mediator is upfront with his or her biases and then offers an opinion? What if the mediator offers an opinion and tells the parties it is only his opinion and they can accept or reject it? Should we be protecting the parties against the possibility of being influenced by the mediator when they have decided and agreed to that process freely? If the mediator is clear about his or her biases and clear about the process and the parties agree to wanting to hear the mediator’s opinion, and we were to declare than unethical — would that be a failure of self-determination? Or should it then just not be called mediation?

Respect. Respect is not one of the principles that mediators talk about; yet those who have practiced widely in the field have noticed that parties will very frequently talk about respect as an issue between the parties. The fact that respect is an issue between the parties indicates that respect is important as between the mediator and the parties as well. Respect is a wide-reaching concept and includes: respect for the perspective of the party; respect for the ability of the party to self-determine; respect for the party’s self-image; and so on. Respect simply takes many forms and it could be summarized as: a recognition, appreciation and acceptance of the mind of each of the parties.

Because it is a complex matter, mediators who have not trained extensively;  have not worked with a mentor skilled in the process;  have not attended workshops with a leader skilled in the process;  have not been self-reflective on the process of mediation;  and have not had sufficient experience will usually not have an approach that truly respects each party in the way they want to be respected.  Why is this important? Well, for one thing, it is simply a lovely value: to respect others. It brings out the best in both parties; it makes the mediator feel that he or she is doing good, important and meaningful work with a basis in valuable human principles.  But is it a fundamental tenet of mediation?

If good mediation practice is to help the parties find a resolution they are happy with (whether that resolution is an agreement or a decision not to have an agreement), then respecting the views and mindsets of each party is the most productive and likely way to help the parties feel that they have been heard and understood and valued, and will make them more likely to hear, understand and value the other party in the room, especially since the mediator, by example, is valuing both parties.

There is another reason for this respect, and that is that the parties always know more about their case than the mediator — although many mediators continue to feel that just by hearing the recitation of facts and the discussion that ensues, that they are in a position to judge the situation.

In sum: respecting the hearts and minds of the parties is not only a worthy human value, but one most likely to lead to resolution.

One side note to respect:  sometimes a party feels that the other party should not be respected, that they are not honest or sincere and are lacking integrity.  When the mediator shows respect for the other party in this situation, it can be frustrating to the party holding that belief. This is one of the places that the art of mediation comes into play. The mediator must find a way to respect both parties in this situation, and that can be a complex combination of transparency about the mediator’s intentions, transparency about how mediation works and recognition of the perspectives of both parties. One thing that I have noticed is that by following through on the process of helping parties express themselves and understand one another clearly — any lack of sincerity or integrity will either fall by the wayside or become exposed. Thus, the process will correct for this.

Following the Parties. Following the lead of the parties is not a basic tenet of mediation, but may be part of self-determination. Many mediators distinguish between following the parties regarding the issues and following the parties regarding the process. I see no such distinction. When parties are not ready to address a particular issue, or want to talk about the issues in a particular order, for example, these things matter and have an impact on the mediation. For one thing, the parties  may not feel respected (see above for discussion on respect) if their preferences are not considered; if the mediator chooses an order of discussion that is in line with the preference of one party over the other, he or she may appear to be biased (see discussion on neutrality above), and if the mediator pursues a process when a party is not ready to discuss it, the party may later change his or her mind about any agreement that comes from that discussion. That can either lead to dissatisfaction in the results of the mediation; a waste of time and money on the part of the parties; and/or a prolonging of the mediation process. In addition — mediation is a process of discovery for the parties. They come into mediation either thinking they know what they want or not being sure — but during the discussions, they can fine tune, self-reflect, mediate within themselves, and possibly change what they want significantly. This process of self-reflection and self-mediation is crucial to the process and valuable to the party. Following the parties — what they are ready to talk about, how they want to talk about it, and when they are ready to talk about it, allows this to happen.

What is my bottom line? I am not quick to say that every standard of practice is required in order for a mediation to be “ethical”. I think that some standards may stand in the way of the parties’ self-determination, which would be ironic. However, I do believe that if a mediator is concerned about helping parties come to a resolution of their own choosing that they will be happy with: self-determination; neutrality; respect; and following of the parties — in their most complete forms of observance —  are likely to yield the best results.

In addition, as a person, I want to practice the kind of mediation that respects the individual, that helps them to self-reflect, to make reasoned and well thought through decisions of their own making.

Whether mediation should be defined to include certain practices — beyond basic self-determination and basic neutrality — and exclude others is an open question. Helping parties find the process they are looking for whether by defining mediation narrowly and calling other practices by a different name, or by being transparent about the particular mediator’s ” philosophy of mediation is a value that is important and maximizes the ability of the parties to choose the process they want and, yes, to self-determine.

Neutrality

Neutrality is a sticky issue, as I observed in a recent workshop.  In the workshop, we were role playing a divorce mediation. The wife suddenly said that she was agreeing to what the husband wanted, but made it clear that she was doing so because she was tired of arguing and didn’t think he’d ever give in.  All the mediators in the room agreed that the mediator should not just accept the agreement and move on, but there was disagreement about precisely how to proceed and what to say. One mediator thought that it would be best to start talking about the details of what they had agreed to and to “re-open” the discussion. My thought was that it would be good to be transparent and explain that the parties need to both be comfortable with the agreement since otherwise there is no real agreement. I would then suggest that we continue discussing the issue until both parties are comfortable with whatever they agree to.

The key here, in my mind, is that the parties understand that the mediator wants to make sure that the parties have both thought through the agreement and are both comfortable with it. Whatever language is used to convey that, is fine, and there are infinite ways of doing so. But there are also infinite ways of conveying the wrong message. It is important that the mediator not behave in such a way that the parties conclude that the mediator wants to undo their agreement; wants to side with the party that is balking; wants to convince the parties that what they have agreed to is not a good idea, or the like.

If the mediator were to launch into a reopening of the discussion about the issue without explanation or without a hint of why it was being reopened, one party might conclude that the mediator is trying to derail the agreement that party wants. Or, the parties might both feel that the mediator is questioning both their judgment, and substituting his or her own. Neither of these is desirable, in my mind, and can lead to a derailment of the mediation. Instead, it is best for the mediator to convey in any way that works for that mediator, that the mediator wants to make sure that the parties are both comfortable or satisfied with the agreement and that they have really thought about it (and received any appropriate advice from outside professionals that they might need).

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Why Obama Doesn’t Succeed in His Negotiations

It is painful to watch as Obama seems to strike out in his very forthright and well-meaning attempts at negotiating with the Republicans. He seems to have learned the lessons of compromise, of expressing concerns and listening to the concerns of others, so where does he go wrong? Why is he constantly being criticized for giving away too much, too quickly? Why does he seem frustrated and unable to achieve what he wants?

The unfortunate fact is that the straightforward approach of facilitative mediation and related types of negotiations are best applied to situations that involve non-financial, personal matters. As soon as money enters into it, one loses by putting too much on the table too soon; since, in the realm of pure money, it is often a zero sum game.  In the realm of simple financial negotiations (when there is no way to add value or to successfully think outside the box), parties hold back on their bottom line offer because once the other side knows what that is, they will never give more than the bottom line requires. That is information that must be protected by both sides in a zero sum game.

In the realm of interpersonal mediation: any type of mediation that involves relationships, there is often a give and take that allows for the honest sharing of concerns, interests, needs and goals.  In those types of cases, parties can best achieve what they want by putting their honest objectives on the table and trying to find a way to satisfy the objectives of both sides. Because the issues are often intangible (how people behave with one another) or complex, each party has a chance of getting everything they want and has an opportunity to think outside the box and create value. When there is no way to create value or when the opposing party has no desire to create value, then it is unwise to put one’s bottom line on the table.

In the case of Obama, the Republicans may view it as a zero sum game, but most importantly, they have objectives that are purely contrary to Obama’s and which make it impossible for there to be honest negotiations. The Republicans do not want Obama to succeed, so as long as Obama makes it clear what he thinks success is, he will lose, no matter how much he compromises. In that sense, it is a zero sum game.

Unfortunately, in the current political realm, Obama’s positive assets and values as a straightforward and sincere mediator and negotiator are liabilities.

The Other ADR

I recently had two unsatisfying small dollar amount purchases, which I would have never pursued in small claims court, but which got resolved happily through the strong arm of the credit card company in one case, and Amazon, in the other. I see this as a great ADR service by private companies with clout.

Credit card companies have a lot of power over pretty much everyone, and if you have a gripe about a purchase, you can easily submit a claim. They will then ask the seller to submit a response, and if your claim is clear cut (in my case, the seller had never sent the item), the credit card company will credit your account. Voila! How simple and satisfying is that?

Other large companies, like Amazon, which thrive on good customer service and a user friendly system, will also go to bat for you. So, recently when I ordered a book which was supposed to be unabridged, and the the seller sent me the abridged version, I complained to Amazon. I had first contacted the seller and found their solution unreasonable. Having done that, I contacted Amazon and they took care of the problem and refunded my money.

These are terrific services, and an often overlooked source of free ADR (in applicable cases).

Anger

When things go wrong, it appears to be human nature to blame someone. This is the source of many problems. So, for instance, if the contractor makes a mistake and installs the wrong hardware on your door, and that hardware is cheaper and uglier than you had bargained for, you may leap to the conclusion that he is doing it to cheat you. You may know better than to say it, but if you call him up and angrily say: “The hardware you installed was NOT what I ordered,” he will hear that you are angry and are accusing him of something. Thus, it is my belief that when we are angry, the first thing we should do is question that anger. Is that anger based on something real and verifiable? Or is it based on the feeling that when something goes wrong, someone is at fault?

I don’t think most people examine their anger. Unless one is trained in conflict resolution or has been actively working on self-reflection, one generally feels that when one is angry, it is warranted. The anger feels real; it comes from the gut:  it must be valid.  Yet, in my experience, it is the very fact of anger that is behind the mistrust, the suspicion, the accusation, that often creates the hard feelings we need to get behind and unpack in mediation. When those hard feelings are based on something concrete that the other person did that is objectively “wrong”, the person may be moved to apologize. When the hard feelings turn out to have been based on misunderstanding, the person who was angry may begin to unwind that anger, and may begin to rebuild trust and warm feelings.

Thus, an important goal of mediation is to understand anger, to explore it, to get behind it and to help the parties both understand what led to it. Once they do understand, they will be in a position to decide rationally where to go from there.

Understanding not diagnosing

As humans we are often driven to try to understand what goes on around us. Often, we jump to conclusions in trying to reach that understanding.  As mediators, we should resist the urge to make assumptions about what motivates parties. We need to understand what parties are saying, but when we try to go beyond that and diagnose their relationships, their motivations, or even the interactions in the room, we are treading on uncertain ground. When we do so, we may, ironically, be heading in a direction that is counter to the good we are doing in mediation. I have heard some mediators say that they like to figure out what is really “going on” between the parties. However, if we look beyond what parties are saying and toward what we believe is “going on” or to what motivates them,  we begin to judge them: and that is the opposite of what we should do as mediators.

The value of mediation is that we are not following the usual course of discussion. We are finding a way to get past the assumptions and biases and confusions that surround normal human intercourse. We are finding a way to facilitate communication outside of the usual modes that people typically engage in. However, when we begin to  make assumptions about “what is really going on” or diagnose behaviors or relationships, we are no longer finding a way to get past the usual problems of human intercourse: we are simply repeating them.

Understanding is, of course, important, but the understanding that is important is two-fold. It consists of each party understanding what he wants to convey, and of each party understanding what the other party is trying to convey. And it is, of course, the mediator’s job to help parties think more deeply about their perspectives, what they want, why they want it and what they want to convey. But all that is done respectfully and tentatively and with the consent and cooperation of the parties. As we ask them to consider their needs and desires beyond their positions, we do so to help them convey what they want to convey more clearly and productively and to help them find common ground and work toward a resolution. We do not do it to judge them.

During a mediation, parties may behave in ways that obstruct communication or may behave in ways that discourage collaborative work. But if the mediator points out these types of behaviors to the parties, the party who has engaged in the behavior may feel that he has been unfairly demonized. He may feel that the other party’s behavior goaded him into it; he may feel that the mediator is unaware of the meaning behind statements the other party may be making; or the party may feel that he has behaved badly once, but that in general it is the other party who behaves badly. Even when a party falls into line after having the behavior pointed out, the party may feel less willing to truly collaborate and the process may have been somewhat sabotaged.

When both parties are doing the same thing, it is easier to comment upon it. It is possible sometimes (although perhaps not risk free) to suggest to the parties that they speak in a collaborative way rather than an antagonistic way so that they can convince the other party of the value of their perspective. But if only one party is doing it, saying so may be at the risk of the mediator’s appearance of neutrality.

Diagnosing the problem in the relationship between the parties is something that we must not do as mediators.  The parties did not come to mediation in order to request that their relationship be diagnosed. They came for help with a disagreement. If they do, however, ask the mediator to help them work on their ongoing relationship, that is certainly something the mediator can do. But the mediator can do so, not by diagnosing the problem, but by using mediation skills such as asking the parties to present their perspectives of the problem in the relationship and then facilitating communication and a focused discussion of the issues.

In sum, all that needs to be understood in mediation must come from the parties not from the mediator. The mediator goes astray when he tries to understand the nature of the parties’ behavior, the motivation of the parties or the nature of their relationship.

To caucus or not to caucus

I recently had a discussion with a group of mediators who felt that caucusing was a good intervention. Since I can rarely think of a good reason to caucus, I attempted to investigate what would lead them to decide to caucus and whether their reasons made sense to me.  One person said that she caucused when she thought the position of one party was unreasonable and she wanted to understand more about it.

The more I heard, the more I realized that in many cases the reason for caucusing is that the mediator is feeling drawn to the position of one of the parties and either wants to find a way to understand the other party’s perspective better or to push the party to change a position. In my view, neither of these reasons is a good one.

In the first case, if the mediator is feeling drawn to the position of one of the parties, the mediator would be most helpful by reflecting upon what is drawing the mediator to the position of the party and whether that is a result of mediator bias or something specific that the party said or did not say. If the party was not convincing in presenting his point of view, it will not only be the mediator who is unconvinced; more importantly, it will be the other party. If so, the mediator will be performing a service to the mediation by identifying what is unconvincing about the position of one party and asking a question that will help both parties focus on that area of discussion. Of course, the mediator should not say that any part of the position is unconvincing; instead, the mediator can simply invite discussion on that area and see what shakes out. Most likely, the discussion will be highly profitable and much more valuable than doing it in caucus.

The second case is much like the first case. If the mediator is feeling the need to push a party, that is a warning sign to the mediator that his neutrality is failing. The mediator should reflect upon what is causing him to feel a lack of neutrality and whether he can overcome it by identifying his biases or assumptions. If, however, the mediator feels that one party simply has not made a clear and convincing case for his position, the mediator can again invite discussion in the room on the area of weakness, without identifying why the mediator is focusing on that area. Again, that discussion is likely to yield greater clarity regarding the positions of both parties as well as a productive and more realistic discussion of any weaknesses in a party’s position.

The beauty of this approach is that the mediator can avoid judging the matter, and can allow the parties to find their own comfort zone. Doing so, is most likely to yield an agreement that both parties are comfortable with and that will be a lasting one.

Power and Mediation

Much has been written about power imbalances in mediation, and it is my belief that there is much confusion regarding the term.  The term “power imbalance” seems to be used to describe one of the following situations: (a) where the BATNA of one party is much less desirable than the other; (b) where the information of one party is greater than the other; (c) where there is intimidation or domestic violence; and (d) where one person has a greater capacity to present his case convincingly.

It is important to recognize what we mean by power imbalance before deciding whether the mediator should try to “re-balance”.  Case (c) above is the easiest one. In that case, one person in the mediation is behaving inappropriately either in the mediation or outside the mediation. This is simply unfair and should not be tolerated. Whether the mediator stops the mediation or takes some other action is an individual matter that depends on the specifics of the case.

Case (d) is also relatively easy. Part of the role of the mediator is to foster improved communication. If a party is not conveying his thoughts clearly or understanding the other person’s perspective, it is the mediator’s job to help clarify.

Case (b) is also easy. When a party becomes clearer in thinking about the issues in a mediation, any lack of knowledge will be recognized and the party will feel empowered to find a way to get it.

Case (a) is  a true power issue. One party simply has more power because he has more options. This is not a situation, however, in which the mediator should or could level the playing field. It is not the job of the mediator to help one party get a better result than his power differential would dictate. For instance, if an employee and an employer are negotiating a salary, and there are many qualified employee candidates, the employer might have greater power. If, on the other hand, an employee had a unique skill and the employer really wanted that employee, the employee would have more power and could command a higher salary. There is no reason why a mediator would feel that it was necessary to level that playing field.

Thus, in my view, true power imbalances do not require balancing by the mediator; power imbalances are a misnomer. When parties are discussing an issue, it is the mediator’s role to foster communication and to reflect back to parties any recognition that they are lacking information they may need. This is empowerment, but it is not a re-balancing of power, since both sides are likely to need empowerment in one way or another. In any case, the mediator is not consciously trying to change the balance, but to create an environment of clear, informed thinking and clear communication.

When Parties Argue In an Unfocused Way

I recently observed some role plays and, as always, a new realization came to mind. While the mediators knew to reflect, reframe and summarize, some of them were not helping the parties make progress because they were not using the right intervention at the optimum moment. I wondered whether I could formulate a helpful guideline for how to know when to use each one.

In one case, the parties were bickering about an issue but they were lacking the ability to focus on their areas of agreement and disagreement and pinpoint the issue. In that case, the mediator’s strategy of reflecting back what each party was saying was infective because they needed help zeroing in on the issue. The mediator could have been extremely helpful by helping the parties pinpoint their areas of agreement and disagreement. The mediator could have asked the parties questions to focus their thinking, if necessary. After that, the mediator could have summarized the issue and checked with the parties to see if it was a correct summary. That would have created not just movement, but satisfying movement, clarity and a sense of relief for the parties.

My takeaway from this is that mediators can use the following guideline:

When parties are arguing without focus, the mediator will be most helpful by helping them to focus. Reflecting and reframing are unlikely to do this. Instead, the mediator should try to summarize the issue with specificity. If the mediator is unable to understand what the issue is, the mediator can ask questions to get a deeper understanding of the issue before summarizing. If the parties are arguing without focus and ignoring the fact that they are not really disagreeing, the mediator can be most helpful by pointing out how the parties are agreeing and if true, that it is not clear precisely how the parties are disagreeing, if at all. Parties who are “pushing each other’s buttons” may be exploding at one another even though they are not disagreeing about the issues. The mediator can help them see that.

Spreading The Word About Mediation

As mediators, we often wonder how to spread the word about mediation — both as a way of helping those in conflict, and as a way of drumming up business. I have often wondered, however, how often we recommend mediation to our friends and acquaintances when things are going awry in their lives. Surely, in everyone’s life there is conflict, and often that conflict is difficult to handle on one’s own. So, why aren’t we recommending mediation to our friends and acquaintances?

One reason, I believe, is that many mediators have a limited view of mediation. Mediators may recommend mediation in certain established contexts such as in a divorce situation or when a case is in litigation;  yet, does anyone recommend mediation for couples who are fighting about issues at home but do not want a divorce; parents who are having disagreements with their children; adult siblings who are arguing about the care of their aging parents; disagreements with co-workers, business associates, neighbors or friends?

These are all situations which can be mediated and will often produce successful results. Yet, if even mediators do not recognize this, how can we expect the public to do so?

I propose that we each resolve to consider recommending mediation to our friends, acquaintances and business associates whenever we hear about difficulties, disagreements or conflicts that appear to be intractable.  Mediators might consider developing a list of mediators who they feel are skilled in different types of mediation. Some mediators may be skilled in facilitative or transformative mediation which may be applicable to any type of conflict that does not require that the mediator provide information to parties. Other mediators may be trained to provide a type of service which combines mediation with subject matter knowledge, guidance and information.  For disputes which primarily center around human relationships, mediators might recommend mediators who are highly skilled in facilitative or transformative mediation. Mediators might take pains to inform the mediation community of their training, experience and expertise in order to distinguish themselves in the particular areas in which they feel skilled.

Change must start within the mediation community.

Argument versus Analytic Discussion

I recently had a political discussion with a friend, and as many political discussions do, it accelerated into greater and greater emotionality. I did my best to try to slow down the discussion, to analyze our differences, to find areas of agreement, to keep my emotions in check, to acknowledge the other point of view, to actively listen…in short, I used many of the things I had learned in my experience of conflict resolution. And while the conflict did not escalate into anything dire such as bad feelings or an ad hominem attack, it was frustrating to me because I wanted to debate the issues, to analyze them, to find some way to work together toward a new shared understanding, and was unable to make that happen.

My friend apologized for becoming emotional and I apologized as well, and we left on excellent terms. Yet, I remained troubled by our inability to have the kind of dialogue I wanted and knew we were both capable of having. After I got home, I sent her an email explaining the kind of dialogue I would like to have in the future and proposing a way for us to engage in it. I suggested that we hear one another’s points of view, try to understand the other’s perspectives, confirm understanding, correct any misunderstanding, and try to analyze the issues collaboratively and see if we could come to a deeper and better analysis of the issues. I received my friend’s response, which said, simply: “Excellent approach.”

What is the takeaway from all this?  The first thing I recognize from this is that one should not be quick to throw in the towel in conflict resolution. There were many positives in my interaction with my friend: we both remained pleasant; and we both restricted our frustration to the issues and the discussion rather than escalating it into bad feelings toward the other person. The second thing I recognize is that conflict can be hard to resolve in one sitting. Nothing I said in the heat of the discussion succeeded in moving the discussion to a higher level. Under the circumstances, we did our best by keeping our emotions from heading into the danger zone of attacking the other person, and my friend showed excellent conflict resolution skills by being the first to offer an apology for becoming emotional. This ensured that we would continue to have good feelings toward the other.  Since those good feelings were in place, I was able to send an email suggesting a strategy for future discussions. The third thing I recognize is that the strategy needs to be spelled out. There was no way for the discussion to automatically become the kind of rational analytic discussion I wanted without actually specifying how I wanted it to be. Even though this is the type of discussion I almost always want to have and even though this is a friend I’ve known for over 25 years, that type of discussion is not everyone’s default; in fact, it is almost no one’s default when emotions are involved. And although I was anxious to engage in that type of discussion at the outset, once emotions became a little heated and the pace of the dialogue became faster and faster, I was swept away with the current. I doubt that I appeared to be looking for analytic discussion myself.

I feel very good about the events that transpired, and am looking forward to seeing how our new strategy will play out next time. I have no doubt that it will require that one of us remembers the strategy and reminds the other early in the discussion before enthusiasm gets the better of us. But I also have no doubt that we will be able to follow through on that strategy if one of us reminds the other early on. Life and conflict resolution are rarely simple and automatic: it is almost always hard work and it is inevitable that we will all flare up and become passionate at times. We will need time to cool down, devise a strategy for working through the difficulties and start again. This is not a bad thing. This is a good thing. We are not machines, and we do not want to be. We enjoy our passions and do not always want to be cool, calm and collected. So it’s a struggle between these extremes.  In order to maintain our relationships and to avoid destructive conflict, we need to keep the following in mind:

  • Work hard to avoid letting emotions become so out of control that we attack the other person instead of being passionate about the issues in the dialogue
  • Take a breather when emotions get out of control and make the effort to say warm things to the other to let them know that they are not being personally attacked and that positive feelings remain in place
  • Once cooler, develop a strategy for how to have the discussion and suggest it to the other: do not assume that the other understands the approach to the discussion that you wish to take.

Pinpointing the Disagreement

When parties come to mediation, they usually do not know why they are having trouble with their conflict; if they did, they’d probably fix it themselves. In the course of the mediation, it is often the mediator’s job to notice the reasons that they are having trouble resolving the conflict on their own.  One of the many reasons that might be present is that the parties are not able to pinpoint the specific areas of their disagreement. This may be because they do not know that pinpointing their disagreement will be helpful; because the process of pinpointing their disagreement requires a micro-focus that is outside the realm of experience for most people;  because communication gets stymied by emotions either in the speaker or the listener or both; because one or both parties lacks the skills to articulate precisely; or for another reason. Regardless of the reason, the mediator can be extremely helpful in moving matters along if he or she is precise in pinpointing the disagreement. A recent custody and visitation case serves as a simple example.

In that case, the mother expressed the desire to be able to relocate anywhere in the United States. Although there was a great deal of antagonism in the discussion between the parties, the father did not disagree with the mother’s desire to be able to relocate; he expressed the belief that either one of them should be able to relocate freely.  He understood that this would mean that his time with the child would be vastly reduced, but thought it was appropriate that they each be able to move. The mother wanted something in the agreement that stated that if there was a relocation, the visitation would change and to set forth what the alternative visitation would be. The father said that he wanted to wait until the time came and then figure it out. The mother wanted to be sure that nothing held her up and wanted to make sure everything was agreed to in advance.

I reflected at how they both felt they were at loggerheads, but that on any particular issue they didn’t necessarily disagree. All the parties could see was that the father didn’t want to come to the detailed agreement the mother wanted to come to: they saw it as a binary, a yes or a no.  Ironically, they both saw the issue the same way. That’s because they saw the issue broadly. What they needed to do was pinpoint the issue. In my analysis, the issue was whether it was possible to come to any kind of agreement at present regarding the change in visitation in the event of a relocation. The mother was proposing a specific change and the father was rejecting that specific change, but perhaps there was another way to word things so that both parties could agree.

I summarized the mother’s point of view: that she wanted to have an agreement fully in place now so that she would not be held up when she wanted to move. At the same time, I summarized the father’s point of view that he wanted to wait until he had all the facts before deciding on a change in visitation. I then asked the father: I understand that you want to have all the facts before deciding on a change in visitation. Is that because whatever visitation you agree upon will depend on where in the country the mother moves? He confirmed that that was the case. A discussion ensued as to whether there was any kind of agreement that we could come to at present that would provide specific solutions in the event of a relocation. Ultimately, a resolution was reached.

It sounds so simple, yet the parties were unable to come to it themselves because when they each spoke and requested something, if the thing they were requesting was not 100% agreeable to the other party, the other party simply said “no” and an argument ensued. By helping the parties take the discussion to the next level and pinpoint the precise area of disagreement, I was able to work with the parties toward agreement even as their emotions remained high. In other cases, the emotions sometimes settle down after they realize that their issues can be addressed productively, or after they realize that it is to their benefit to work rationally rather than emotionally. But even when that is not possible, the mediator can use the rational skill of pinpointing areas of disagreement and addressing them to get past the difficulty.

What Not to Do

I recently started offering workshops in mediation skills, and as always, when one is teaching, I am learning a lot.  Much of what I have learned over the years about how to mediate has come from reflection about my mediations after the fact.  Once one has mastered the skills of active listening, reflecting, reframing, summarizing, checking in with the parties, brainstorming, allowing for silence, etc., there is often a bigger picture question. There are moments in many mediations in which one is not sure what to do next. Some trainings refer to that as impasse; but impasse is where the parties are before they even come to mediation. When mediators talk about impasse, they are talking about themselves. They are at an impasse about what to do next.

In one of my recent workshops in mediation skills, one of the participants said that she felt a greater sense of confidence after the workshop because she now realized that even very experienced mediators are sometimes at a momentary loss. This comment, along with my own reflection, made me realize that very often what a mediator needs to know is not what to do but what not to do.

The question for many mediators is what to do when the mediator has already summarized the parties’ concerns and each party seems to understand the concerns of the other, but there is no sense of movement. Sometimes, at that moment, I am considering a way to summarize their concerns again in a deeper way, but am still considering whether and how to phrase that more meaningful summary.  Or, I may be considering whether the parties are confused or uncertain in some way, and whether and how to focus on it. I am struggling with the need to have more information put on the table, and balancing that with a respect for the parties’ autonomy and right to convey their innermost thoughts when and how they want to. As I am considering all this, at warp speed, I am also listening and watching the parties, so that I can be present and helpful. No wonder mediators are exhausted after a mediation. A few seconds may pass, but it feels longer. I allow the seconds to pass because the silence gives the parties time to think, and I do not want to speak before I have something useful, appropriate, neutral and unobtrusive to say.

Perhaps the parties will speak next. If so, what they say will undoubtedly be useful. Perhaps I will speak next. Having considered what to say, it will often be helpful. The only danger is in being afraid of the moment; being afraid of not knowing what to say for the moment, of the silence in the room. The danger for new mediators,  for those lacking confidence, or for those who have difficulty with neutrality or the deeper meaning of self-determination, is that they will give up and do something rash. In my mind, often what mediators need to know is what not to do, rather than what to do.

So, what should the mediator avoid doing at those moments? The mediator should avoid making statements that will be perceived as non-neutral by a party or statements which attempt to resolve the dispute for the parties.  In my view, the mediator should avoid asking questions that will be perceived by a party as questioning their needs, desires or interests.  If the mediator steers clear of statements and questions that do not comport with neutrality regarding the issues and the parties and the parties’ right to come up with solutions to their own problems, the mediator can not go wrong.  Having the confidence to wait a few seconds until the parties speak or until the mediator can organize a useful intervention will save the moment and the mediation. Experience as a mediator means gleaning that confidence.

Evaluative Mediation

Evaluative mediation is generally understood to be a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case.   While I am in favor of having parties choose any neutral process they desire, there must be clarity and agreement among the neutral and the parties as to what the process is and what it is not. I fear that parties and mediators do not have the same expectations regarding evaluative mediation.

Some parties wish to retain an evaluative mediator to help them get an objective view of their case and to prod the parties to reach a reasonable settlement based upon the merits of their case.  For parties who wish to get an actual opinion on the relative merits of their case, they are probably best advised to obtain the services of a neutral evaluator.

Neutral evaluation is a disciplined and principled process. The neutral is chosen for knowledge and experience and listens to the arguments of both sides, researches the matter and comes up with an opinion. Evaluative mediation is different.   To the extent that parties believe they are obtaining a mediator who will also give a neutral evaluation, they may be under a misapprehension.

An evaluative mediator may or may not offer any opinion regarding the merits of the case. The mediator may make statements that  imply to the parties that the mediator has an opinion. The parties may assume that the stated or implied opinion is based upon the mediator’s actual knowledge of the law. However, the mediator is unlikely to do any research, and his opinion may be based upon the arguments as stated by the attorneys rather than any independent knowledge or research on the issues in the case. Or the opinion may be based upon a common sense view of the matter.

One of the tools of the evaluative mediator is the mediator’s proposal. The proposal is a settlement amount which the mediator suggests to the parties. It can have a strong impact since it is coming from the mediator, and some parties may assume that it is based upon the mediator’s independent knowledge of the law and understanding of the case. However, the proposal may not be tied to any particular legal view of the case, but may be a dollar amount that the mediator believes will appeal to both parties.  Most problematically, the choice of dollar amount favors the party who has bargained strategically, who has withheld information and who has taken a hard line.  Yet, these are the very actions that we want to discourage in facilitative mediation. Thus, knowing that a mediator may make a mediator’s proposal is likely to frustrate the facilitative mediation process. The two are therefore incompatible.

In my view, neutral evaluation is a reasonable service that parties may want to attain. Evaluative mediation is a different and more confusing animal.  My concern is that there may be a lack of clarity on the part of the parties as to what the mediator is basing his opinion on.  To the extent that the mediator is only helping the parties explore the law related to the case, as argued by the parties, this may not be evaluative mediation at all. A facilitative mediator may feel it is appropriate to fine tune the lawyers’ elocution of their legal arguments, and clarify their disagreement regarding the law as a way of narrowing the issues and gaining clarity for the parties and attorneys. A facilitative mediator would be clear that he is not bringing his own knowledge of the law to the task, but is simply narrowing the issues as presented by the attorneys. An evaluative mediator may be doing just this, but unless he is clear that he is not bringing his own knowledge to the task (and if he is an evaluative mediator, why wouldn’t he?), then the parties may assume, incorrectly, that he is doing so. In the situation where an evaluative mediator is acting as a neutral evaluator, but is not being rigorous in obtaining all the facts or researching the law, is he really providing the service that the parties expect? While I am in favor of offering parties any neutral dispute resolution service they desire, the nature of that service should be clear to both the mediator and the parties. The expectations of the parties must be made clear and the mediator must determine that he can meet those expectations before taking on the job.

Pride

I feel like beginning this post with the sentence: pride; don’t get me started.

That’s because pride is an enormously complex subject. First, is it good or bad? The answer is: it depends. Pride that makes us act in self-defeating ways is bad; pride that protects us from humiliation is reasonable; pride that helps us feel good about our positive accomplishments is good. Perhaps we should avoid using the word pride, or unpack the word whenever we use it, or we are liable to end up in a morass of confusion.

How is all this relevant to mediation? Again, don’t get me started. Pride stops people from accepting resolutions that are reasonable. On the other hand, recognizing someone’s need to avoid being humiliated is a way for a party to formulate an approach in mediation that will avoid coming up against someone’s sense of pride. And finally, a party’s overt recognition that another party has done something he is justifiably proud of can be the basis for improved communication, mutual positive feeling and the road to agreement.

In order to be clear on what we are talking about at any given time, it may be helpful to avoid using the word “pride” whenever possible. Finding the right word is key to describing an issue to add to a list of issues in a mediation or to summarize the various concerns of the parties. So, what words can we use instead of pride? Words like ” recognition” might describe the positive goals connected with pride. Words like: “avoiding humiliation” might describe the feared negatives that can be a legitimate goal for a party.

As mediators, in order to help the parties decide when they are behaving in ways that reflect positive versus negative pride, we can ask them to reflect (within themselves) upon what their reasons are for taking the stand they are taking; are the reasons logical? Are they making any assumption that are questionable? Have they thought it through and decided whether it is really best for them? Of course, as mediators, we must be careful not to single out any one party when we do this, but to say it to both parties at once, for them to reflect upon and not as a question that must be answered aloud.

Parties are often stymied by the need to take a position dictated by pride. In such cases, parties have determined that giving up that position — while perhaps to everyone’s benefit and no one’s detriment — would somehow be humiliating

This can be a tricky issue, because, after all, avoiding humiliation can be a legitimate goal of a party.

In my mind, the way to approach this dilemma is to help parties think about why they will feel humiliated and to reality test the outcome if they hold on to their positions versus the outcome if they take on a different position. In this way, a party can recognize the cost of pride as well as reconsider whether there really will be a sense of humiliation. Parties who consider these matters will often reconsider their pride-induced positions, decide to address their other needs and interests in a way that takes into account the needs and interests of the other side, and as an added benefit, derive a greater sense of self-awareness and personal growth in the process. Again, when helping the parties consider these matters, mediators should be careful not to insist that parties reveal their innermost thoughts, but should just suggest that parties consider these matters internally. And again, mediators should be careful not to highlight any particular position as questionable, but instead should have both parties reflect internally in this way and consider their positions. Choosing the best time to make that suggestion so as not to highlight a particular party’s position and so as to maximize the possibility that the parties are each at a point at which they will derive value from this type of self-reflection is part of the art of mediation.

Playing the Role of Coach

Someone I know works for a large retail corporation, and has been suffering fears of being fired recently.  As he talks about his concerns, he speaks with anger and resignation about how other people tell him that he is being targeted to be fired and how unfair his manager is in his criticisms. As a friend, I engaged him in a dialogue about his work and the criticisms the manager was offering and asked for his objective view about the specific criticisms. It turned out that there were areas in which he thought he could improve.

After our discussion, he went to work with renewed vigor and determination to do all that he could to meet his manager’s expectations. He took my suggestion to not let his concerns about whether he was being targeted for dismissal stop him from focusing upon improving in the areas in which he knew he was not meeting standards.

In other words, I helped him consider the legitimate concerns of the other “party” — even though the other party was not present — and encouraged him to address those. In this case, he was well aware of what the concerns were, since he had had a review, but was not addressing them with determination. I helped him reality test his strategy of not adequately addressing the concerns of the other “party” and to evaluate the benefit or detriment to himself of taking the view that management was making excuses and just wanted him out.

Now, weeks later, he feels that he has made positive adjustments in his work and is doing a better job. Time will tell, as his next review is coming up at the end of the quarter. But surely, he has lost nothing in addressing the stated interests of the other party, and he is on the road to either improving his review or finding out more about what management is thinking.

As can be seen, I used all the precepts of mediation and applied them to coaching.

Often, we have the information we need to mediate concerns in our own life without involving a mediator. The trick is simply to convey our concerns to the other party and to hear and address their concerns. Employment reviews are just those types of situations. Often managers who give those reviews will be clear about where expectations may not be currently met, and how to improve. If the employee has legitimate concerns of his own, he also needs to be able to convey them to the manager and find a way to have them addressed. This can be difficult because employees feel that the power is in the hands of the manager. After all, they have the power to fire, to demote, to not promote, etc. They may feel that they do raise concerns, but that they are dismissed by the manager. Without a mediator present to ensure that the manager considers the concerns of the employee, there may be limits to what the employee can do on his own.

Despite the fact that I was only coaching the employee, rather than mediating the situation with both the employee and the manager present,  it seemed effective. When last we spoke, he was talking about all he had done to improve his performance and how pleased he was with the job he was doing. Helping him get past the assumptions that stood in his way was half the battle. What were the assumptions? His self-defeating assumption in this case was that the manager had him targeted for firing and that nothing he could do would help. This was not productive because it stopped him from addressing the legitimate concerns of the manager. If he had continued on that path, he would have created a self-fulfilling prophecy: he would possibly have been fired and would have assumed he had been targeted.

The matter is ongoing,  of course, because it remains to be seen whether other legitimate concerns exist on either the part of the employee or the part of the manager. Perhaps my acquaintance will find that he can do the job requested by the manager, but that it requires him to work ten hours a day. Perhaps the manager will have other concerns that he would like the employee to address.  There needs to be a way for parties to raise such concerns with one another in their real world, and not necessarily in mediation. Mediation is often a luxury that is simply not available. Yet, much can be accomplished by one party considering the concerns of the other and trying to convey their own. If it turns out that my acquaintance has made a positive impression on his manager with the changes he has put into place, he will have improved his position and opened the door to the manager listening more seriously to any concerns he may have. As he becomes a more valuable employee, the balance of power may shift and the playing field may become a little more level. But regardless of whether there are imbalances in the power structure, the best chance for achieving goals is for the party to exercise good skills in listening and clear speaking, and to maintain a manner that is polite, respectful and focused.

Fairly Legal strikes a real note

Although I hesitate to take the new television series, Fairly Legal, too seriously, it can be an opportunity to see how the makers of the show — and therefore, perhaps, the public — imagine that parties might react to particular mediator interventions.  In this week’s episode, as Kate Reed sat down to work out an agreement between an injured party and the insurance company, she was stumbling along without completely losing the parties until she suggested that the insurance company might reconsider its offer and the wife of the injured party could use some of the money to get counseling. The wife erupted in disgust and left the mediation.

What I find interesting is that the makers of the show thought that having Kate recommend counseling would, of all things, be that offensive. Yet, hearing it made me cringe, and the woman’s reaction struck a real note.

The question arises:  what felt so wrong about Kate’s recommendation? In my mind, the most offensive thing about it was the way Kate glossed over the possibility that the wife might have some legitimate concerns and went straight to judgment about the issue.  Telling her that she needed counseling when the woman herself had not expressed any concerns of that nature was, in effect, saying that her concerns — or a portion of them — were unjustified and were only a result of her inability to deal with her emotions.  Kate jumped to make this recommendation before she even tried to understand or tried to help the insurance company understand what the wife was so upset about.  Sure, it was good for the TV plot to have that develop over the course of the show, but the question is: is there anything of value that mediators in the real world need to learn from this?

One thing it highlights is the intuitive truth of some of the fundamental precepts we use as mediators — the need of each party to be heard and understood, to have their views taken seriously and respectfully. It is surprising how comprehensive these concepts are. I notice over and over again how valuable it is to check in with the fundamental principles of mediation and to allow them to guide us.  The gut feelings of the producers of this episode can be explained by nothing more than a reference to our guiding principles. It should be reassuring for mediators to know that by paying careful attention to the basic precepts of our field that we can be guided to an intervention that is likely to avoid this kind of pitfall.

So, given that most of us do not mediate like Kate Reed, what can we learn, specifically, from this episode? I have often heard of family mediators recommending therapy to clients. When a client has expressed concern about their own emotional state, that is an option for the client to consider, of course.  But it is not something the mediator should propose of his own volition when the client is not raising it as an issue.

I have heard it said by some attorneys and mediators that a spouse who is so upset that he has trouble focusing on the negotiations should go to counseling to help deal with his or her feelings. Is this any different than Kate telling the wife to go to counseling? I think not. In fact, the statement says that the spouse who is having trouble focusing has an emotional problem rather than a legitimate one that needs to be considered and addressed. Perhaps it is to be expected that the spouse is upset and needs more time to adjust before negotiations continue — that does not imply that the spouse should go to counseling during that period unless they feel they want to. Or perhaps the spouse needs to have a dialogue with the other party about the concerns that are causing the upset. Maybe he would like to understand more specifically what went wrong in the marriage, or perhaps he feels that there needs to be more discussion about whether to end the marriage at all.

In my mind, the way to address a concern which a party is raising, albeit emotionally,  is to address the concern that the party raises without being distracted by the emotions behind it.  Some mediators will note the emotion, and that is fine, so long as the noting of the emotion does not replace the reflecting of the issues raised. If the party is unclear about what he is being emotional about, then the matter requires drawing out. A simple question, such as: “can you tell me more about that” can help the party express his concerns. Or if it is unclear how the concern relates to the issues in the mediation or any result that might be sought, the mediator can ask a respectful query designed to have the party consider those questions and respond to them.

Although Fairly Legal is certainly not a template for conducting mediations, it can, perhaps, be an opportunity to see how the makers of the show (as representatives of the general public) imagine individuals would react to different mediator interventions. When these reactions feel real, we can then hold them up against our own knowledge of mediation and our guiding principles to see whether they comport with them. In fact, in this case, I think they do.

Mediation and Self-Actualization

One of the things that has always drawn me to mediation is the role that the mediator plays in helping parties think meaningfully about what they want in ways that they may never have before. This seems counter-intuitive since a mediation is a discussion between two parties, rather than an in-depth discussion with one party (especially if the mediator does not caucus, as I almost never do).

Why is this the case?

A mediation involving a concrete issue between two parties involves a micro-focus on that issue. A micro-focus allows for an analysis that is more thorough, more meaningful and more nuanced than a larger focus because the issue is more manageable. And despite the fact that it is a micro-focus on an issue, the human mind will understand whether it has significance beyond the issue. The person will subconsciously, consciously or intuitively learn from it.  In the course of the micro-focus, the mediator will seek to help the parties understand what is behind their positions so as to help them find common ground. In this way, parties search their assumptions, desires, beliefs, fears, concerns and ideals to come up with answers and understand themselves better so as to decide what they can agree upon. It is this searching and the ensuing self-knowledge which is the road to self-actualization.

When the mediation involves two parties who feel intimate with one another and a mediator whom they trust to be non-judgmental, neutral, respectful of self-determination, and committed to confidentiality, there may be no holds barred. Despite the strong emotions that might emerge, the mediator will guide the parties back to the subject and will not let it stray to the realm of accusation and non-productive anger as open discussions of this type often do without a mediator. Yet the mediator will respect the understanding that the parties derive from their emotions and intuition, and will not reject them as having no place in the discussion. When parties are left to their own devices it can be extraordinarily difficult — even if they have the self-control — to avoid accusation and non-productive anger, to parse out the nuances of what they are saying, to communicate them, and to be willing to hear the other person’s concerns without rejecting them for fear of having their own concerns lost. In mediation, the mediator makes sure all of that happen. The mediator is in essence, an organizing force.

Achieving self-actualization, seeing another person achieve it, having it respected by the other party and the mediator, having it play a role and take concreteness in the form of an agreement is a heady and — yes — transformative experience.  Self-actualization may involve the realization that one has great empathy and compassion for the other; it may involve the recognition that one wants to travel a different path than one previously thought, it may involve the capacity to understand the other more deeply and to find meaning in that understanding, or it may simply be a better understanding of what one wants in the particular context of the mediation. It depends greatly on the degree to which a party has self-knowledge before the mediation, the degree to which a party wants to self-explore, the degree to which the mediator helps parties stay focused on their motivations and desires, and the degree to which the issues in the mediation require self-analysis.

Despite the intensely personal nature of this self-analysis, mediation should not be intrusive. A mediator should have techniques that encourage the parties to think about their motivations in their own minds, but only to share them to the extent that they wish to do so. So,  parties  may internally think a variety of thoughts and gain knowledge about themselves and their self-motivations and goals, but may reduce that to one relevant statement. The relevant statement, in the context of a parenting plan, for example,  may simply be that the party no longer feels fixated on a particular position, but is willing to entertain a different type of schedule. The motivations for this change may be unexpressed, but the party may feel transformed by the new self-knowledge. The other party may also, of course, feel inspired and transformed by the change in attitude.

One might ask whether the techniques that a mediator uses can help a single party self-actualize, outside a mediation, perhaps in a coaching or consulting context. Surely, this is possible.  Mediation has an advantage, however, in that it has a built-in devil’s advocate in the form of the other party; and it has the concreteness and immediacy of a decision which will actually be put into effect. Ironically, although it is designed to address concerns between two parties, it is ideal for self-actualization.

A Graceful Exit

As anyone who has observed history over the last century can attest, the handling of the situation in Egypt can yield results that range from the dire to the glorious. Obama’s conflict resolution skills may play a role in determining which way things will go. I note the following from today’s New York Times:

“On Friday, administration officials said that among the political ideas that had been discussed were suggesting to Mr. Mubarak that he move to his home at Sharm el Sheik, the seaside resort, or that he embark on one of his annual medical leaves to Germany for an extended checkup. Such steps would provide him with a graceful exit and effectively remove him as the central political player, going partway toward addressing a central demand of protesters on the streets of Cairo.”

The  Obama administration has clearly honed in on a key element in conflict resolution: helping parties to articulate options in a way that does not force a party to make a humiliating concession. At the same time, however, it needs to respond to the underlying concerns of the opposition — to be sure that a meaningful change will occur.

Avoiding humiliation can be tricky in the political context in which the perception of who is victorious is being played out on the world’s stage:  both parties have a need to avoid humiliation; neither wants to do an about face or make concessions that make a mockery of their previous positions. But at the same time, both parties need to have their underlying objectives met.

Specifically,  in a situation in which there is no trust, there needs to be some way of assuring the opposition that the fundamental changes they seek will, in fact, occur.

In the Egyptian context, the administration has focused on finding Mubarak a graceful exit. This is crucial, since the pride and ego of any person — but especially a person in great power — will not allow him to make an exit that is humiliating. Many would sooner risk death than humiliation. Thus, the administration has taken Mubarak at his word when he said that he was eager to step down, but that if he did, “Egypt would sink into chaos.”

In a mediation, such a statement might be contested by the other party, as insincere. Yet, this would be missing the point.  The statement provides an opportunity to discuss the matter in a way that allows both parties to engage. If Mubarak is taken at his word, that he would step down in a way that would allow Egypt to avoid chaos (a slight twist on his words), then that gives the other side the opportunity to respond to that concern and provide a mechanism for him to step down in a way that avoids chaos. Sincere or not, Mubarak would then either be stuck with this approach or be exposed as misrepresenting the truth.

But more importantly, Mubarak’s statement could be seen as creating a safe exit for him — or even a way to backtrack and cooperate with his opposition. Perhaps Mubarak is desperately seeking a way to salvage a non-violent, reputation-saving way of ending this crisis. Taking him up on his offer is a win-win situation for everyone, and should be considered as a gift.

It was reported that Obama said that he believed that the Egyptian president had already made a “psychological break” from his hold on office by announcing that he would not run again.  Here, the administration is once again saying that we must encourage Mubarak and support his effort to step down by giving him credit for his role in cooperating. At the same time, Obama is trying to find a way not to give too much credit to Mubarak for fear of taking the sense of “victory” and “justifiable outrage” away from the protesters. Considering the desire of the opposition to feel their triumph while allowing Mubarak to have his dignity is a very delicate balance which is not lost on Obama.

The administration has offered a show of respect for Mubarak’s stated concerns by saying that the administration is concerned that removing Mr. Mubarak too early could create constitutional problems that would establish a political void.  It was also reported that  Suleiman and top military officers were being encouraged to have detailed discussions with opposition groups, conversations that would ultimately include how to open up the political system, establish term limits for the president and enshrine some key democratic principles ahead of elections scheduled for September.

It also appears that Suleiman and his two close allies understand the delicacy of the situation. The article reports that they have said that they want to do this without spilling blood and without hurting the dignity of Egypt or Mubarak while fulfilling the demands of the masses. These are wise words, as they are focusing on the dignity of Mubarak, which is a key concern in the quest to avoid violence.

El Baradei is also aware of the importance of dignity:  “We have no interest in retribution,” he said. “Mubarak must leave in dignity and save his country.”

Thus, there is understanding among some of the leaders who are playing a role in these events that the preservation of dignity (another way of describing “saving face” and a “graceful exit”) is key to achieving a peaceful result. Yet, knowing this, and finding a way to make it happen are not the same thing. Obama is trying to work with Mubarak on his stated terms and is trying to be both practical and to allow for a graceful exit that seems reasonably calculated to provide the results that can achieve both the objectives that the opposition seek and the kind of exit that Mubarak can live with. It is truly a delicate matter to pursue this course and bring the outraged and emotional opposition and the prideful Mubarak to the point of accepting this approach.  To do this, Obama will have to focus on the needs of the opposition for certainty regarding the changes they seek.  If Obama can do all this, it will be a triumph of conflict resolution.

What is the role of a lawyer in a divorce case?

Although I have been involved in the mediation field for 15 years, started out with a course in divorce mediation, and am immediate past co-president of the Family and Divorce Mediation Council of Greater New York, I have only dipped my big toe into actually practicing divorce mediation. Mostly, I have concentrated on custody and visitation, workplace and other relationship types of mediation. Why have I steered clear of divorce mediation?

I guess one could say I am a purist and a perfectionist. I want the parties to be fully informed. I want them to know the law as it applies to them, and I want them to have thought things through deeply and thoroughly. In my view, this usually requires the participation of legal counsel for each side. Why do I say this?

In many divorce situations, there will be issues that are simply not clear from a legal standpoint. Most legal questions are subject to interpretation based upon the specific facts of a situation. One lawyer may argue one way, another lawyer may argue another way and who knows where a judge will come out or whether it will get reversed on appeal. Given this uncertainty, how can a mediator be expected to provide legal “information” that can guide the parties? And if a mediator does traverse this minefield, how can he avoid the appearance on partiality when he feels it may be his duty to disclose a minor argument that a party may have, which has a relatively unlikely but not impossible chance of succeeding in court? And if the mediator fails to disclose this, is this fair to the party? And how can a mediator know all this off the top of his head, without doing research on tricky issues? And what if the mediator is not a lawyer? For all these reasons and more,  I do not think mediators should be in this position. But I do think that parties need the information.

I have a vision of how divorces could proceed, which I don’t think is unrealistic, which would be fairly reasonable in cost, and would protect the parties. This vision involves lawyers. The question is: what role would lawyers play? In my view, each party should consult a lawyer for the limited purpose of obtaining a concrete view of their case.  The lawyer should be able to tell them, among other things, which assets are marital assets and which assets there are questions about. With regard to the assets that are questionable, the lawyer should give a view on how strong an argument there is for that particular asset to be considered a marital asset. The lawyer should be able to give this type of clear guidance to parties so that the parties will have a set of items that they agree upon, and a concrete set of items that they may have different views on, to the extent that they care what the law says.  The lawyer should be able to do this for all the financial issues.

Why is this not done? Well, one reason I can think of is that parties have not been forceful or clear in asking for this. Another reason is that lawyers may not want to take on a role that could make them vulnerable to some kind of liability with so little reward. After all, if they are only giving an hour– or a few hours –of consulting services, rather than an ongoing representation, then their risk in opining on the law may not be worth it.
On the other hand, I believe that lawyers can protect themselves, and do. Rather than going out on a limb and saying that something is or is not a marital asset, they would say that it most likely is, for instance. This is the type of advice that makes lawyers comfortable and still gives guidance to parties. And it may be enough.

What is not enough, is having the parties go to mediation without a clear sense of what their legal foundation is, and making decisions without real informed consent. A mediator who is a lawyer is in a very awkward position if he tries to give this type of advice to two different parties.  In addition, not every lawyer mediator is knowledgeable enough to do so. A lawyer often needs to have done some research into the law –or have a nuanced view based upon prior research and experience — to have a clear view of how the law would be applied in a particular case. A mediator who is not a lawyer should not offer opinions about how the law would be applied in a particular case.

This is certainly not to say that divorce mediation is a bad idea.  Au contraire.  Mediation is the best way to help parties decide matters that are in disagreement after they each feel fully informed. And it is ideal, in particular, for helping parties decide parenting issues and to work through difficulties interacting with one another, as parents must, even after a divorce. I believe that after a relatively brief consultation with a lawyer, each party is then prepared to go to a mediator (and possibly also a financial planner) to work out the differences of opinion that the parties may have as a result of their gut feelings, their reasoned preferences, their newly acquired legal knowledge, and anything else that goes into the mix.  At the end of the mediation, the mediator can simply list a set of terms that the parties have come to, and the lawyers can draft the agreement. Lawyers who operate in this context would have to develop a mindset that is geared toward getting a deal done, even as they advocate for their client’s interests.

It occurs to me that in the business world, when you have two parties making a deal, the assumption is not that the parties are each represented by litigators. Rather, they are represented by corporate lawyers. Most of the time, a deal is struck and no one talks about court. Just because divorce eventually involves a judge is no reason for the lawyers involved to consider themselves litigators. Their roles should be, by and large, deal makers. In my vision there is a role for lawyers, mediators and financial planners in the divorce process. And it shouldn’t cost an arm and a leg.

Just because divorce mediation is a great idea, and has been a life saver for many couples, does not mean that it can not be improved upon.

Meta-mediation

When parties come to mediation, they may or may not have a clear idea of what they should expect, or in fact, what mediation is.  It is therefore common practice for mediators to tell parties what the process of mediation is, so that everyone is clear. Although it is appropriate for mediators to make sure that both the mediator and the parties agree on what the process will entail, should the mediator be the one deciding — or mandating — what the process is?  Ironically, a basic principle of mediation is self determination.  Yet, is it self-determination to decide for the parties what the process should be?

Here are some examples in the divorce mediation context:

In a preliminary session, the mediator may spend time telling the parties what divorce mediation is, how the process works, how decisions are made, what is expected of the parties and what is expected of the mediator. Some mediators even provide “rules” for the parties and the mediator.

In my mind, this is a flawed process. Instead, I see it going this way: Parties come in for divorce mediation. The mediator asks what the parties would like the mediator to do. The parties are either clear or unclear; in agreement or not in agreement. If they are unclear, the mediator can explain how they are unclear and — if they want — can help them become clear about what they want. If the parties are clear and not in agreement, the mediator can offer to mediate the issue of what they want the process to be. If the parties are clear and in agreement, but it doesn’t sound like mediation as the mediator knows it, the mediator needs to find a way to respond that respects the parties’ right to have the service they want. If the parties know what they want but it is logically impossible or has severe pitfalls, the mediator should engage the parties in a discussion about those concerns and help the parties re-think how they want the process to work, which other professionals they may also want and how they should be involved.

What if parties come in and say: we want you to help us try to work out some disagreements we have about dividing our assets so that we can get divorced. But if we don’t agree after one or two sessions, we would like you to decide. Many mediators think med-arb in the family context is unethical.  A mediator is surely free to refuse to provide the process if he feels unqualified or unequal to the task, or personally feels it is not a good idea, but is it unethical for a qualified, capable person to offer it?  One argument against med-arb is that parties will not feel free to discuss issues openly if they know the mediator may ultimately be the arbitrator. While this could be a pitfall and could affect the success of the mediation process, does this mean that the mediator should consider it unethical? Or does it mean, instead, that the mediator should disclose this pitfall to the parties and then let them decide? Parties who come to divorce mediation often want a process that will save then money. Having a med-arb process may be one way to do that and the parties may be willing to accept its pitfalls. Certainly, the mediator will have to discuss with the parties exactly how such a process might work, and upon analysis, it might turn out to be unworkable, but is it clear that it can never be ethical?

What if parties come in and say: we want to get divorced, don’t want to pay attorney’s fees, want someone to tell us how to figure  all this out and just get it done. Should the mediator refuse and say that mediators don’t make decisions? Or should the mediator say that the service they are requesting is not really mediation, and that he does or does not know whether that service is available and what it might be called, but that they might be able to get it from someone (perhaps this mediator, perhaps someone else)?  Yes, of course, there are issues about how the neutral will make the decisions; but that is not the same as saying the mediator should insist that the parties use a different process. The mediator should at the very least be able to help the parties think through what they want and fine tune it if it is unclear. It may not be clear what the credentials of the person who will provide this service should be or what the criteria for making the decisions should be, but that is not the same as limiting the scope of the processes the parties can obtain to seemingly well-defined set categories that do not allow for the tweaking of the process by the parties.

Many couples come to a divorce mediator looking for a combination of financial planning, a dose of legal information and/or advice, and someone to help them with any disagreements that arise.  They may very well want someone to give them advice about the law and about how to structure their financial agreement. They may not want a neutral upfront who is not going to offer opinions or give legal advice. They might want those things. They believe they can get all of it from one person: the mediator. But they believe that because it is not their job to figure out how the mediator can wear the hat of a financial expert with opinions, the hat of two separate attorneys with allegiance to different clients, and the role of a neutral who expresses no opinion and gives no advice. Some of these roles are clearly contradictory and it is not possible for one person to perform all of them.  This, the mediator can explain to the parties, and can help them think through which professional they want to contact first, if they do need financial and legal advice as well as mediation.

When the issues are financial; when the parties are in agreement about basic facts (such as, perhaps, wanting to divide their assets down the middle), then what they may decide they want at the outset is a financial planner. They may also need a little legal advice to make sure they are aware of what the law considers  marital assets and other related issues; but they may not need a mediator…yet. Or, they may need the mediator at first, for the limited purpose of helping them discuss and think through which other professional(s) they should first contact and what the instructions to those professionals should be.

Ultimately, after the parties have a fuller understanding of their financial situation, and have the legal information they need, if they disagree about how much money each is entitled to, or what is fair, or how to spend time with the children, or what is best for the children, then a mediator might be what they want. At that point, the parties would be clear that they have all the expert advice they want, and now have a disagreement based on a difference of opinion and perspective. At that point they might want the service that is generally considered mediation.

If we respond to the desires of parties, we might find that new and limited roles for attorneys, financial planners and mediators can be carved out, which are tailored to the needs of the parties and which are therefore extremely cost effective, and which provide precisely the service the parties need. We may even find, ultimately, that there is more work for mediators, as mediators begin to play a smaller role but are incorporated into the mainstream of cases with lawyers.

The bottom line is: the services of a neutral should reflect what the parties want. That is what self-determination is. And if we agree that self-determination is the goal of mediation, surely it should be the goal in the process of deciding what type of service the parties want. The parties may end up deciding they want a one hour consultation with their own attorneys, a brief consultation with a neutral financial planner, a discussion between themselves, and the mediator playing the role of helping them think through what they want and helping them work through disagreements. As mediators, we should be able to engage parties in a more nuanced conversation about what they want mediation to be, and help them work toward and develop the particular process they want.

Walking the walk

Something compels me, every once in a while, to ask other mediators what they have learned from mediation that guides them in their daily lives. I always expect them to say that they try to listen to what others have to say and to express themselves clearly;  and in both cases, to check for understanding. But mediators always surprise me by saying other sorts of things. I’ve discovered that everyone has a different take on what’s important and also, of course, that even upon reflection, a lot of the experience we have as mediators gets lost when we are the “parties”.

When I have these sorts of discussions with other mediators, I then reflect back on why my learning is not necessarily the be all and end all. For instance, when I try to be clear in my everyday life, and try to understand what others have to say, sometimes it blows up in my face. In an intimate relationship, that sort of behavior can come off as cold and unemotional or rigidly rational. Among mediators, that sort of behavior can appear condescending. And those are just two of the possible pitfalls.

One mediator I know says that he tries to guess at what the other person’s concerns are, and respond to them. My personal experience with that, however, is that many times people guess incorrectly about what the other person’s concerns are, and if they are assuming they are correct without actually checking, then they may be going in a very unproductive direction.

I began to compile a list of things that we could do in our daily lives to improve our relationships and manage conflict better.  As I looked at the list, I was dissatisfied, both because the list was undoubtedly incomplete, but also because it lacked unification and organization and would therefore be difficult to remember. For me, learning is all about creating a framework that is easy to remember. I realized that the list could be organized into categories, which would facilitate remembering. After doing so, I was impressed by the fact that there were many things that fell into the category that I call “creating a positive dynamic”. In fact, some of the items in the other categories could also be considered ways to create a positive dynamic.  It feels correct and true that a major focus of our efforts in our interactions should be in creating a positive dynamic.

The length of the list and the amorphous and incomplete nature of it point out why destructive conflict is so difficult to manage and avoid and why it challenges all of us, both as mediators and as parties.

Here is my undoubtedly incomplete list of ways to walk the walk in our daily lives. I will continue to tweak the list, and it will probably be an ongoing endeavor:

I. Maximizing understanding and avoiding misunderstanding:

1. Restating/reflecting back the other person’s concerns and checking for understanding;

2. Noticing the reactions of others to things we do and say and possibly changing our behavior and/or checking it out with the other person;

3. Considering how one’s words and the emotions conveyed might be misunderstood and making necessary corrections.

II. Creating a positive dynamic:

1. Choosing phrasing which is less inflammatory

2. Self-reflecting: noticing when we are being judgmental

3. noticing, validating and respecting the other person’s feelings

4. Letting things go whenever we really feel it is possible — as a gesture of love,  friendship, self-preservation, peace for oneself and peace for other

5. Being generous in actions, and also in expressing heartfelt positive thoughts toward others whenever appropriate and possible — but being careful to appreciate others as they wish to be appreciated and avoiding such traps as damning with faint praise or stereotyping, to name two possible pitfalls

6. If possible, displaying positive (but honest and appropriate) emotions toward the other

7. Checking our intentions: whether they are positive or mean-spirited

8 . Checking to see whether we are being appropriately selfish and promoting our own interests or being inappropriately self-centered and denying or ignoring the interests of others

III. Problem-solving:

· Not getting locked into a particular position — brainstorming; considering options;

IV. Creating space for thinking and for the participation of all:

  1. Appreciating the value of silence at times
  2. Avoiding being overbearing; letting go of control
  3. trusting the ability, capacity, talent and intentions of others — if appropriate
  4. Welcoming the contributions of others
  5. Taking time to think and allow emotions to settle

V. Recognizing and rethinking any assumptions that underlie our attitudes

  1. Looking at the big picture: do we see the other person as he or she wishes us to?
  2. Do we understand the person’s goals  or are we making assumptions?
  3. Are we stereotyping the other?

A productive mediation can pay untold benefits.

Sometimes in the course of a mediation, a party will express a concern about the nature of the communications with the other party in their ongoing lives.  It may very well turn out that someone who feels that he is often misunderstood discovers that he has contributed to the difficulty by expressing himself unclearly or by conveying an emotion that was different than what he felt or wanted to convey.  In such a situation, there is the potential for the party who raised the issue to feel uncomfortable, embarrassed or worse  if the mediator is the one to identify the lack of clarity or the impression the communications made. As a result, I always tread lightly on these issues, as they can make a party feel “blamed”. In general, my approach is to let the parties figure it out themselves, just as I would any other issue in the mediation. This has the benefit of not only avoiding “blame” by the mediator, but it also allows for the party to reflect upon how they are hearing the dialogue. I am often reminded in such mediations that my ear for their dialogue is different than theirs. This is especially so if they have a long relationship: they may in fact share a common shorthand and. because of their experiences with one another, make certain connections which I would not make.

In a recent  mediation, it became clear that there was a miscommunication between the parties about an important matter. I asked the listener how he had heard the statement made by the speaker, and asked the speaker what he had meant to say. I then asked each whether they would have changed the way they had expressed themselves or reacted if they had known what the other party meant to say or how the other would hear what they said. The parties suggested and agreed upon ways to avoid such misunderstandings in the future.

After the mediation, I was impressed by an email I received from one of the parties, thanking me for the beneficial mediation. During the mediation he agreed to think about his communications; his email made clear that he recognized that the benefits of his doing so inured directly to himself as well as the other party. He had realized from the mediation that he was not always clear. After the mediation, he paid attention to his interactions with the other party and noted to himself that when he stops to reflect and asks himself what he really wanted to say, that his anger subsides and he is more able to communicate clearly. Thus, he was able to take the results of the mediation and capitalize upon them. He discovered a way not only to make his communications clearer, but also to alleviate his anger, which undoubtedly helped him both feel better and communicate in a manner which would elicit a more positive response.

I was heartened not only by the success of the mediation, but how at least one party had continued to reflect upon the learning from the mediation and to derive additional benefits for both himself and the other party in future interactions. The party’s recognition of how the anger developed and how it subsided clarified why there might sometimes be a miscommunication of emotions in a dialogue. In this case, since the anger dissolved once the party was able to be clear about what he wanted to say, he may have unwittingly been communicating anger at the other party, while in actuality, his anger may have been anger or frustration (at himself or the situation) at not being able to formulate a clear statement. Finding a way to avoid conveying unfelt anger toward the other party is a tremendously beneficial outcome, as it can only foster more positive interactions.

Domestic Partnerships vs. Marriage for Everyone

The issue of whether states should allow people of the same gender to marry has raised in my mind a much more fundamental question. For me, it highlights the flaws in having the government sanction relationships instead of legal obligations. So, for instance, should the state be involved in any way with the sexual activities of consenting adults? If not, then why is the sexual relationship of married people an issue at all? States have moved away from requiring grounds like adultery in order to obtain a divorce, and every state now has a no-fault provision. To me, there is a clear trend against having the state involved in our (adult, consensual) sexual interactions. That being the case, why does it remain relevant to marriage? And if adult, consensual sex is not the state’s concern, then why does it matter whether it is a man and a woman who get married, or in fact, whether their relationship is sexual or not? Why do states not do away with marriage, and simply legislate domestic partnerships if they feel there is value to having laws protecting individuals who wish to share the financial or child-rearing responsibilities of life together?

That is not to say that marriage can not exist or that people can not call themselves married. Marriage can continue to be the province of religions and should be expanded to non-religious contexts if people wish to do so.  If the word “marriage” had no legal significance,  anyone could perform the ceremony. This would appropriately remove the state from that sticky state-church connection. The ramifications of a marriage ceremony should not be legal, but social, which is what it feels like. The rights and duties that people seek from marriage should instead flow from compliance with the state’s domestic partnership laws. Such laws, in my view, should apply to anyone without regard to gender. It is even possible that there could be a provision which could allow for more than two people to be in a domestic partnership. Why not?

As my son, Mitchell, says: why can’t people call themselves married even if they are domestic partners? I agree. We are not legislating what people can say (freedom of speech!)

I would like to see a move toward domestic partnerships divorced from the concept of sex or sexual orientation. Let’s leave social definitions of their relationships to the individuals involved. As a mediator who believes in self-determination, this seems to offer the greatest options for self-determination among the population, free of the state’s unnecessary opinions about what social relationships should be.

Relationship Mediation

Mediating the issues that parties have in an ongoing relationship is one of the most satisfying uses of mediation I know.  It is wonderfully complex and non-linear, employs all the skills of a mediator and thrives on unadulterated self-determination.  Relationship mediation involves such parties as married couples, divorced parents, co-workers, friends, romantic couples, or related parties; in other words: any pair or group of people in an ongoing relationship. A recent mediation is a case in point. It involved a divorced couple, still passionate in their feelings, yet so different in their sensibilities that every simple interaction was fraught with intense emotion.

A couple such as this that chooses relationship mediation is expressing a belief in the other person: the belief is that despite the difficulty, the other person has positive intentions which can be unearthed by dialogue. This expression of trust alone — the expression of trust that is evidenced by coming to mediation — is a source of safety and comfort for both parties, and fuels some of the good feeling and positive outcome that ensues.

The fundamental truth in most such mediations is that one or both parties misunderstands the other. One party during a discussion may say something innocuous, such as “I’ll think about this”, and the other hears it as: I’m going to decide this on my own; I’m going to cut off this discussion; I’m not taking this seriously. Clarifying that the first person really meant simply that he needed time to think goes a very long way toward repairing the problem. Discussing how he might have expressed it differently so as to convey what he meant more clearly– and also alerting the listener that he may be hearing things differently than they are intended — may set the stage for a more productive future interaction.

Yet this type of clarification is often necessary but not always sufficent. The baring of feelings, the expression of pent up emotions, the realization that the other person is as affected by the problems of the interaction — all of this sets the stage for some kind of transformation. And when the transformation comes — if it comes in the room — it is palpable. Tensions are released; people are smiling, relaxed, joking; the world is set right again.

There are many ways that the conversation can unfold, but in my experience the way that yields the most positive transformative result is to interfere little in the conversation. The parties know what they want to say. The mediator’s job is to notice when it goes off track and becomes unproductive, to point out what each person is saying (especially if it is not being heard by the other party) and to make sure the parties don’t forget to think about how they can use what they have learned in their future interactions. It is also helpful for the mediator to not be too ambitious.  When the parties have reached their saturation point, they should recognize it and stop.

The difficulty of these mediations is that parties are often entrenched in ways of interacting. If parties have been interacting in a certain way for many years, based upon the nature of their personalities and experiences, how can one expect that they will learn to do it differently? I find that the parties themselves provide the answers to this dilemma. I ask at some point in the mediation: will you remember what we discussed here? What would be helpful to remembering it? The parties know themselves and will suggest what they will need to do to make adjustments in their interactions and to remember what they need to do. Some couples can come for a two hour mediation once every six months or a year, and that is all the adjustment they need. I don’t know all that transpires between sessions, but the fact that they come for one session and then come back months later says something powerful about what has been accomplished.

My extended Family

Thanksgiving brings home the reality of my current family situation. It is a litmus test of whether I feel warm and connected to the world or whether something is missing and needs to be addressed. For me, at this time, this year, I can reaffirm to myself that my current family configuration is in fact quite a happy one. Perhaps this surprises some people because I am a divorced mother of four grown children and my Thanksgiving meal included, among others, my former husband, his current wife and their two year old daughter. I am currently unattached.

So, why am I happy?

The simple reason is that I like what I have and I have what I like. My children, though grown, are a frequent presence in my home and on Thanksgiving, they come home and occupy their former bedrooms and the house is full of life and fun. The Thanksgiving meal itself is only a small part of the pleasures of the weekend, which center around the cooking, the planning, the rejoicing in our reunion, and the cleaning up. The shared purpose makes these activities glorious, even if some of them seem like (and are) chores.

This year was the first that my former husband and his new family came for Thanksgiving. He proposed that we spend Thanksgiving altogether and I immediately agreed. Since I have a more extended family group each year, I wanted to continue the tradition, and suggested they join us at my place. My former husband’s suggestion to do Thanksgiving together followed upon his suggestion and the very successful execution of our spending two weekends all together at his (really his new wife’s) summer house. Those weekends told us that we were on to something. We had not had such a fully satisfying and connected family feeling since we were an intact family. And in fact, I’m not sure we had ever had it to this extent. Because as an intact family there were squabbles and disagreements and below the surface dissatisfactions between him and myself. But on these two weekends, there was no cause for unhappiness among the group. We were thrilled with the pleasure of the shared company.

In addition to the pleasure I derive from my children, there is also a pleasure in seeing my former husband. Perhaps it is not universally true or perhaps it is not universally acknowledged, but former husbands and wives continue to have many of the feelings they always shared. There was a reason they initially married, and part of that reason inevitably continues. So, perhaps there is no longer romance, but there is still the appreciation of the other’s wit, shared experience, quick mind, unique perspective, and the like. In addition, when one has spent 25 years with another person, that person is not only a family member, but one of the main family members. The pain of divorce is that this is no longer always acknowledged. But why should it not be?

Then there is the new child. Children can be a wonderful glue. There is little we all agree on so readily among the larger family as that my former husband’s and his new wife’s daughter is a treasure. We all dote on her. How I am related to her is not important. She is the child of my former husband and the half sister of my children, and in my world, that makes me connected to her.

Aside from my connections to my children, my former husband and his new wife and child, there are other aspects of my life which satisfy me. I am independent, make my own decisions, follow my own schedule, develop my own interests and make my social life the way I want it. I am free to pursue any relationships I want to pursue and have the independence to do so. I believe that those are the things I want, and I have them. And when one has what one wants there is no need for anger, resentment, dissatisfaction or any of the other things that stand in the way of happiness and that foster acrimony.

Logic

When I think about what I do that provides the most added value in all the work I do, it is to provide logic to a framework that has theretofore been dominated by emotion and fuzzy thinking. This is not to say that emotion does not have an important place in decision-making or that all thinking should be clear. Indeed: fuzzy thinking, fueled by emotion is the route individuals take to figure out what feels right to them. But logic is the key to checking on whether that fuzzy thinking  fueled by emotion will actually produce a solution that can provide what the individuals involved want and whether it is a workable and concrete solution to a problem. When people are caught up in emotion and fuzzy thinking it helps tremendously to have an outsider keep tabs on the logic piece so that the parties themselves can be free to feel and think creatively. It is the teamwork that works.

Freeing the Parties to Agree to What they Really Want

One of the things I love about mediation,  is the way it so often helps parties agree to things they really want, but somehow felt they shouldn’t ask for.  A case in point was a recent custody and visitation mediation.  The parties came in diametrically opposed, fixed in their positions and certain there was no resolution.  The father wanted a larger portion of time with the child than is traditional. The mother balked, but did not articulate clear reasons for not wanting it.  At one point, the father asked, rhetorically, whether he was wrong for wanting it.  I said there were no rights and wrongs, that parents agree to a variety of different arrangements, and it depended what worked for any particular family and what they were willing to agree to.  I repeated this sort of statement more than once, in response to questions from the parties.

At the beginning of the mediation, the mother doubted the father’s sincerity in wanting or intending to actually spend additional time with the child. Over the course of the mediation, however, it became clear from his continued interest in the extra time, and perhaps from my taking his interest seriously, that she was beginning to consider that he truly was interested in spending more time with the child.

At one point, the mother expressed a frustration about feeling unappreciated.  I reflected that back to her:  “So, I am hearing that you feel that you are unappreciated.”  The father responded that he did appreciate her, but said that he wasn’t going to “just volunteer that”.  A subtle undertone changed in the room as some of the mental blockages cleared.

The parties continued to interact in a rough rather than gentle manner with one another,  but it began to become clear that they enjoyed that kind of interaction on some level,  and that that had always been a part of their relationship. At one point, the mother suddenly took the plunge.  She would agree to what the father wanted.  After that, I could see her warming up to the idea.  She considered all the things she could do with her additional free time, and clearly gloried in the possibility that she would have fewer responsibilities,  while still having plenty of time with the child.  The change was not all in one direction.  Without engaging in any discussion of a quid pro quo, the father agreed to some of the things the mother was asking for as well.

My sense was that the changes had come about as a result of two things:  the parties began to feel free to do as they wished, rather than what was expected of them;  and the parties felt more appreciated by each other, and therefore did not have to prove anything to the other.

Emotions

One of the reasons people benefit from mediation is because their emotions get in the way of rational thinking and behavior when they attempt to resolve matters on their own. In the mediation room, however, the mediator must be skilled and sensitive regarding emotions. Emotions are clues as to what is a deep concern for an individual, but it is not a clear and precise clue. One knows how one feels but it is not always clear how to draw analytical conclusions from it. A mediator can be helpful by doing the following:

If the participants in mediation are having an emotional dialogue in the mediation room, ask them whether they feel that the dialogue is helpful to their goals for the mediation. This will often help parties draw a connection between their emotions and their goals. Or it can help parties shift to a more productive dialogue. Sometimes parties will say “no, it is not connected to any goals, but I would like to get this out before we continue.” That might clear the person’s mind and allow them to focus more clearly.

Mission Statement

The purpose of my blog is to share my thoughts on mediation and conflict resolution. Some of the entries will be theoretical: a culmination of years of practice and experience; other entries will be anecdotal, based on something interesting that happened in a recent mediation. My goal is to share my ideas and insights and to create a place for comments and discussion.