Cool and Crisp

Fall is in the air? It is a cool and crisp October morning. With the change in season, this is a great opportunity to consider your mediation practice. I’ve written before about being a reflective practitioner and with a “chill” in the air – let me ask.

What are you doing to make your mediation’s “cool and crisp?”

Here are some questions for your consideration:

Do you begin your mediation in the same way every time? Do you use the same language? Do you sit in the same place? Do you always ask one “side” to go first? Do you ever engage in cross talk between the participants before going to caucus? Do you ever get participants back together during discussion other than at the end of mediation? Do you take notes at mediation?

The list goes on, as it should, because there are a myriad process choices as mediator. I encourage you to get out there, enjoy the brisk Fall weather and make every mediation cool and crisp!

Create Space for Emotions in Mediation

A recent newspaper article encouraged workers to use their emotional intelligence at work. The idea was that we should not hold all our emotions “in” because if we do so, we may not be able to build relationships with the people around us day in and day out.

Also, for those who follow NFL football, Steve Smith of the Carolina Panthers, who just finished a 2 game suspension for punching a teammate (Lucas) in practice, reported that he and the player he punched now have a cordial and building friendship. Previously, these two players were seen to be at odds. So what changed? Smith says that he previously did not like Lucas because he believed that Lucas did not like him. (Same from Lucas.) However, after a team meeting where everyone had a chance to say their piece. It turned out that Smith and Lucas did not like each other because they thought the other did not like him. Talk about a self fulfilling prophesy. With the air cleared the team and teammates came together.

Thus, if we take these two ideas together and add them to our work as mediators, then be sure you check in with participants on an emotional level in mediation. Consider how you can create a comfortable space for participants to express how they feel and then “manage” the emotions if necessary. Mediation in the litigated case is often the participant’s “day in court” so it can be essential to provide an opportunity for emotions to help with the resolution.

Conflict Defined

Each Fall semester I teach a class – Mediation Theory & Practice - for the Conflict Resolution Department at UNC Greensboro. This is part of a Masters program and the students come from many different walks of life with a common interest in conflict resolution. I also teach this class online. In our first meeting I take the class through an exercise called “Defining Conflict” in which we consider our perspective on “conflict.” The last step in the exercise is to come up with one word definitions of conflict that are positive or constructive in nature.

Check out this year’s great list of words:

Catalyst – Communication – Creativity – Growth – Maturation – Rethinking – Evolving – Motion – Quest – Adventure – Relationship – Building – Change – Revitalization – Growth – Opportunity – Revolution – Renew – Resolution - Restoration - Bridging - Enlightenment - Dialogue - Disentanglement – Engagement – Movement – Workout – Differences – Learning – Curiosity – Understanding – Transformation – Challenge – Progress – Juncture – Path

So, the next time you get discouraged in a mediation, pull out your handy pocket note card with these words on it and then get back to work!

Labor Day Reflection

For many folks, this past Labor Day week-end is a recognition and celebration of work! I started thinking about our work as mediators and how should we celebrate? Initially, I thought about “what is mediation” and then realized it’s not about “what,” it’s about “how.”

Here’s my take on the “how” at a macro level with Labor Day in mind. As mediators we practice both a science (the science of negotiation, personal interaction, etc.) and an art (intuitive understanding, empathy, etc.). For me, being a mediator is a craft. It is something I continually study, seek to master and improve. I can find new ways to conduct the process as long as I am reflective about what I do. Be a reflective practitioner.

Here’s an easy way to give this a try. The next time you serve as mediator; do something differently from how you usually do it. It could be as simple as how you introduce yourself or how you describe your role as mediator or . . . You’ll think of something and when you do and put it into action – then you are being reflective! This first step should lead you to consider why you do the things that you do as mediator. We know that there is a reason for each word we chose, each caucus we direct and the list goes on and on.

And in your reflection, in your consideration of the “how” and “why,” you celebrate that which is mediation. Enjoy your days of labor as mediator!

Study Says Plaintiffs Should Settle!

In the mediation of a litigated case, there comes a time when participants consider the potential outcome at trial or hearing. This is the part of mediation where you, as mediator, help them sort through and consider their BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) and MLATNA (most likely alternative to a negotiated agreement). With this analysis in hand, participants are then usually able to make more informed choices about how to proceed - settle or go to trial.

Now there is another tool to add to your mediator toolbox when discussing the case with plaintiffs. A soon to be published study found that settling was better for plaintiffs than going to trial. According to study co-author Randall L. Kiser - “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more.” Here's a link to a New York Times story on the study - Study Article. The study reviewed 2,054 cases from 2002 - 2005 and found that plaintiffs made the wrong decision in going to trial, i.e., obtained a lower economic result as compared to an offered settlement, in 61% of the cases while for defendants, the figure was much lower at 24%.

So, next time you are in private caucus with the plaintiff and counsel, you might ask if they've heard of this study and it's results. It might help participants rethink their perspective on the case and create further opportunity to explore settlement.

Mediation Olympics

Anyone who watched the recent US men’s 4 x 100 relay swim saw a marvelous race that ended with a winning touch. On the one hand it’s about the gold, the gold medal, yet the Olympics are so much more than the glory of winning. Listening to Melanie Roach, US weightlifter, exclaim about her wonder, joy and satisfaction with a sixth place finish is, for me, what the Olympics are really about. My question for you mediators – what’s your mediation about?

For many who mediate in litigated cases, there is only the “gold” of settlement. Yet I suggest that having this as your focus can, in some cases, prevent you from reaching that goal.

Here’s my point. If you as mediator place the outcome, settlement, as your prime goal, you can lose sight of the process and your neutrality becomes at issue. In effect you can create a “conflict of interest” with the participant who does not want to settle their claim, while you want it settled. I’m not suggesting that you give up completely on the goal of settlement, rather, that you stay true to a mediation process that allows for self determination. Again, stay focused on the process. Be neutral and unbiased in your actions and choices as mediator.

And finally, if you stay with the process and think less about “getting that settlement” - I believe you will be more open as a mediator to what is happening in front of you, you will be more creative and willing to take “risks,” and are more likely to actually help folks out of tight spots. The cases will settle.

So, go for the mediation process and get the “gold” !

Conflict is Good! Bring it on!

Okay, maybe the title is a bit too strong, yet we know that conflict can create change and many times for the better. Or the energy of conflict can fuel creativity and invention. My point is that conflict is not always a bad thing. Particularly if it comes in small and manageable doses. I’m not talking about physical or strong emotional conflict or violence; rather I’m talking about the kind of every day conflict that occurs in our homes, in our workplaces and in our mediations.

The question for you as mediator is to sort through the “conflict” that is in your mediation and decide what if anything you should do about it. Is it okay to let folks raise their voices at each other? Or use strong language? When and how does the conflict energy shift from constructive to destructive or vice versa? We’ve all been in mediations where it seemed pretty hot and then later folks calmed down, analyzed their situation and reached an amicable resolution. So, what happened? What, if anything did you do?

Some mediators may come from the school of thought that the mediator must tightly control emotions so that participants can stay focused on solving the problem at hand. Others may allow all sorts of conflict to erupt in front of them and facilitate from that point. I believe that “some” conflict is a good thing in mediation and that often participants can’t really get down to the business of solving the problem until they work through some of their feelings. This is not an either/or proposition; rather, as I’ve noted before, it’s a both/and. As mediator you connect with the conflict energy and then help the participants figure out what to do about it.

So how do you get started? I believe that the most important step as mediator is to not only listen fully to what is being said, how it is being said and by whom, but to fully engage with the room. In addition to listening, check body language and let yourself feel what’s happening. Take it all in with all your senses. And then get to work! Bring it on!