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.

The Final Conflict

I heard a StoryCorps interview this morning on NPR. I don't recall the name, but the man was an undertaker and now took care of an historic cemetery in Atlanta. He explained how when he was in grade school, the teacher asked each student what they wanted to be when they grew up and he knew immediately - "I want to be an undertaker."

He talked about holding ceremonies and burying his pets down by the creek when he was younger and how he heard people talk about how someone looked at a funeral. So, he became and still is an undertaker.

His last comment linked with me as a mediator and perhaps might with you too. When asked about why, he said that while he may work with death every day, he saw his role as "to help lighten the load of the families dealing with the loss of a loved one." I think that's close to what we do as mediators.

We try to help lighten the load of people who are in conflict. Now the comparison can only go so far; however, perhaps we, like the undertaken, ease certain aspects of dealing with conflict. Of course, being in a conflict and being dead are vastly different, or is death the final conflict? In any event, on this beautiful Fall day here in North Carolina, go forth mediators and help lighten the load of the conflicted.

Try Something New

I was at the beach last week on Fall Break with my family. We had our canoe and paddled the sound. Then my 11 year old son mused, “Can we take the canoe into the ocean?” My first thought was “no way” and then I thought more about it and came to “why not!” The challenge was figuring out how to get the canoe from the sound to the ocean several blocks away.

We figured that out pretty quick. Just stick it into our CRV, with it sticking out the back and walk with it to the beach. Then my son and I carried it to the shore. And then we headed into the ocean. It was pretty calm so we made it through the breakers and then out into the ocean. On our return we tried to ride the waves in, turned a bit and then capsized and unceremoniously dumped onto the shore. We were fine except for being wet! So we did it again and again and again. On the fourth try we rode all the way in!

In your next mediation try something different. Do something adventurous. Instead of thinking “no way” think “why not!” Give your idea a try. Taking risks as a mediator, with planning and ground work completed, usually leads to opportunity.

Mediators Gone Wild !

If you mediate workers' compensation claims in North Carolina (or any type of claim for that matter) - DON'T TESTIFY (#%***!!) about what happened at mediation!

Two recent cases from the North Carolina Industrial Commission spotlight mediators behaving, in my opinion, badly! It's not quite "girls/boys gone wild;" however, we as mediators must protect the integrity of the mediation process, must maintain the confidentiality of the mediation and should follow the rules!!

So, what's this rant about?

In Simpson v Sutton Masonry, IC 569582, 9/9/09, the IC determined whether a mediated settlement agreement and the subsequent compromise settlement agreement included an agreement to pay for certain medical care if the care was not provided by NC State Vocational Rehabilitation. As part of the IC's determination, the mediator testified about his interpretation of the mediated settlement agreement. This is beyond the scope of the mediator role. The parties and their attorneys can provide this information when the NCIC is reviewing an agreement for enforcement. In fact, by NCIC rule, the mediator may only testify as to who was present and, if an agreement was reached and signed, that the agreement was signed in their presence. That's it. No more. Don't do it.

As for the second case. It's even more of a mess.

In Allred v Exceptional Landscapes, Inc., IC 650940, 8/27/09, the IC reviewed whether to approve a mediated settlement agreement and whether the conduct of former counsel and/or the mediator violated the Workers' Compensation Act and/or Rules of the Industrial Commission. Heady stuff indeed. I'm not going to go into details; however, suffice it to say that this is a cautionary tale and squarely highlights the mediator role. Don't do the heavy lifting yourself. Facilitate the work of the participants to enable them to make informed choices about how to proceed.

Enough. I'm back and will start writing on a weekly basis. Happy mediating.