Tell a Story !

I was reminded at a recent mediation that telling a story is always better than reciting the facts.  And, people will listen to a story - not facts.  I was in a litigated case mediation and plaintiff's counsel told what happened and went through the medical history, all of which is needed; however, it was more a recitation and not a story to be told.  Who was the claimant?  How had the injury affected them on both the personal and claim level?  Was there anything compelling that would help tip a decision maker to your viewpoint?   These were the items longed to hear, but did not.  I did a quick summary and counsel did let their client talk and this was helpful to get some sense of them and to hear their concerns. Plaintiff spoke with strong emotion about their injuries. I thanked them for their comments and then asked for input from opposing counsel before asking any follow up questions (I like to hold my questions until everyone has had a chance to talk.).

Then opposing counsel began what I'll call an "opposing" recitation that sought to refute various facts and medical care issues.  It was an equally dry response and did not connect or reach the Plaintiff.  Many experienced counsel do an excellent job of weaving a story on either side of a case. There are many defense counsel who can both genuinely apologize for someone being hurt and present an opposing legal argument.  They connect with people and people listen to them.  They don't always agree, but they listen. 

So next time you are representing someone in mediation, tell a story!

Ground Rules, Guidelines or Nothing At All ?

This Fall I am again teaching a Mediation Theory and Practice course in the UNC Greensboro Conflict Studies and Dispute Resolution Program.  When we consider the mediator opening, i.e., how the mediator begins the session, we have some lively discussion around whether you as mediator want ground rules or guidelines for how participants will interact.  Do you offer something in the form of a rule like - one person speaks at a time, no interruptions, etc.  Or do you offer a more generalized guideline like - let's have a civil and respectful discussion.  Or do you not say anything about how you will interact?

Each option has merit and as I've taught my students, there is generally no "right" or "wrong" instead it's about how you want to structure and guide the session.  Do you want to start with a more controlled interaction or do you want to leave things more open?  This topic came up at a recent mediation education program and one speaker noted that they did not offer any ground rules or guidelines at mediation.  Rather, this mediator started from the premise that participants could communicate appropriately and would only step in if it seemed needed.  This was mediation in litigated cases with attorneys and claims professionals present.  Would this work in mediation with strong conflicting emotions present?  I'm not sure of the answer; rather I'll ask you the question?  What sort of ground rules or guidelines do you use in mediation and why?

Softball 101

I handled a mediation last month that reminded me how folks can sometimes lose sight of the power of the mediation process. 

The mediation was in a litigated case and when I met with Plaintiff's counsel and client in private caucus I asked questions about the case. I use questions to help client's become educated about their case and to help them make decisions - either to settle or head to trial. This is the usual exploration of BATNA (best alternative to a negotiated settlement) and WATNA (worst alternative to a negotiated settlement). This is the usual stuff of mediating litigated cases and in this situation, Plaintiff's counsel would not acknowledge any problems with the case. Each time I raised a concern, it was batted away. We weren't making much progress and I sensed some frustration on the part of counsel.

The reminder came in the break room.

I was getting coffee when the Plaintiff's counsel walked in to do likewise. As we got our coffee, he expressed some concern that his client was not fully understanding the risks of going to trial. He could not understand why his client felt so strongly about the case and could I help him with his client. I commented that when I raised issues in the private caucus, you (the attorney) were not acknowledging them. I'm tossing softballs to help educate your client as to risks and you keep trying to hit the ball out of the park. Your client is believing what you say and is thus not willing to be flexible, even though you privately agree with some of the risks as noted by your frustration.

The attorney paused and thought for a moment and exclaimed "you're right!" I'm reinforcing the strengths of our case without acknowledging the weaknesses. With this light bulb going off we were able to move the process forward. His client came to understand the full scope of the case and eventually decided to settle.

This scenario has happened before and will likely happen again. For those representing folks in mediation, consider some of the mediator questions as softballs and sometimes you ought to swing and miss!

Immunity to Change Mediation Decision Making

I attended an excellent legal education program earlier this spring (NCBA - The Resilient Lawyer) where Robert Keegan education professor from Harvard and author of the recent book Immunity to Change, led a three-hour program devoted to change. Based on more than 25 years of research and practical teaching, he explained how we continue to do things and not do things in opposition to our stated improvement goals because we actually have hidden commitments and big assumptions that drive our behavior.

For example your goal might be to lose 10 pounds yet you keep eating that muffin, doughnut etc. It turns out you are eating it because you have a hidden commitment, perhaps based in your childhood, that says "you will never go hungry." Thus, when you try to change, there is a push/pull, a foot on the gas and brake at the same time. Keegan explained that in order to change one must fully understand the "problem," by uncovering the hidden commitments and considering whether there is room to expand our big assumptions. Will we actually go hungry if we don’t eat that muffin?

While mediating cases, I consider decisions made one form of change. People, attorneys, insurance professionals state goals, they partake in activities to pursue those goals and they may encounter hidden commitments and big assumptions that get in their way.

In a workers’ compensation mediation, the injured worker might say, "I'll never work again." The carrier might say, “the claimant is not hurt as bad as they say.” These forces collide - commitments both hidden and open drive the actions of each. In mediation, we should explore these commitments. We can ask participants to consider beyond their big assumptions. For the worker, what might a return to work be like? For the carrier, what if the injury is more significant than thought?

In either case, as mediators, we should be willing to explore the human condition of our participants. What are the barriers to change, to settlement and resolution? How can we change "immunity to change" to an ability to change?

Linking Turns

Back in February I went skiing and took a lesson to update my turns. Today's skis are built to turn with a parabolic arc built in while yesterday's skis were mostly straight and pretty hard to turn. During the lesson I had to unlearn old habits and listen closely as my instructor encouraged me to link my turns, from edge to edge, using the skis arc. I was encouraged to flow with the mountain and with my skis rather than fighting with them.

This idea of linking turns shows up in mediation. Each step of the process can be linked and I believe it is part of our job as mediators to manage and facilitate the links. When we ask a specific question or inquire about topics to discuss or ask if participants want to meet privately, it should be done with a larger mediation process goal in mind. We should link our mediator actions to both our overarching mediation approach and be in conjunction with the needs and requests of participants. As we link steps of the mediation process together this also helps participants connect with the process, and in so doing, the process works its magic and facilitates decision making.

Next mediation - think about linking turns down the mountain.

What's In a Name?

Do you ask everyone at mediation to say their name out loud as part of your mediator opening? This may seem like a silly question - of course you do. We all ask mediation participants to introduce themselves as this tells us who is in the room and allows participants to meet. However, you might not know that the act of saying your name can also help your participants work better together.

I heard Atul Gawande, general surgeon at the Brigham and Women's Hospital in Boston and author of "The Checklist Manifesto: How to Get Things Right" on NPR recently and he described creating a checklist for the operating room. Among other items, each person in the room states their name. This simple act helps create a connection, a group that can more effectively handle complex tasks.

Just as mediation can be a complex task make sure you hear those names at your next mediation.