Can You Hear Me Now?

Here’s a short – one question - quiz: What is the most important skill that a mediator brings to a mediation? The answer: The willingness and the ability to actually listen. 

 In this political season, we are offered endless, graphic examples of people unable or unwilling to listen to each other. Talking heads are everywhere. In our personal lives, the signs are impossible to ignore; people not making eye contact with you, looking at their “smart” phones while you’re talking (and sometimes while they are talking), interrupting you mid-sentence or answering a question in a way that makes perfectly clear that they did not listen to a word you said. We place a high value on skill at employing technology to communicate, whether it is on TV, a TED talk, a podcast or in a tweet. None of it involves listening. We have far more experience feeling isolated and misunderstood than we do feeling heard and understood. 

 What, then, is it when a mediator actually listens? It is more than just hearing what someone says. In her recent New York Times Opinion Piece, Kate Murphy says that “[I]t (listening) also involves paying attention to how they say it and what they do while they are saying it, in what context, and how what they say resonates within you.”[1]  It is also more than imitating a potted plant while someone else is talking. Again, to Kate Murphy’s essay: “A lot of listening has to do with how you respond – the degree to which you facilitate the clear expression of another person’s thoughts and, in the process, crystalize your own.” [2]

 And that leads, inescapably, to the other critical skill you should expect from a mediator who is a good listener – the willingness and ability to ask good questions. If a mediator sees his or her role as getting the case settled then the questions will be designed to support and advance the mediator’s view of the case. If, on the other hand, the mediator is actually curious about what he has heard after engaging with and listening to the parties, then the questions will not have “the hidden agenda of fixing, saving, advising, convincing or correcting.”[3] A mediator who listens is also less likely to assume that he or she already knows what the other person is going to say. In fact, a mediator who is an attentive listener often receives more information, relevant details and elaboration from the mediation participants than by asking pointed questions. That information and those details are the building blocks for a successful mediation. 

[1]Murphy, Kate. “Lessons in the Lost Art of Listening.” The New York Times, January 12, 20020 www.nytimes.com/2020/01/09/opinion/listening-tips.html

[2]Ibid.

[3]Ibid. 

The Times They Are a Changin' for the Law Business

Just as Bob Dylan wrote in 1963, the times are indeed a changin' — for the law business. While the legal system continues to move (ahead) methodically and deliberately (the wheels of justice do, indeed, move slowly), the business of making a living as a lawyer is in the midst of a sea change. The profession faces competition from sources that were unimaginable not so long ago e.g., outsourcing legal research, document review, document preparation, etc. Clients make demands for economies that are impossible to realize without the use of technology. And then there is the looming impact of AI. At the heart of these changes is the ability to apply technology in ways that actually improve access to, the delivery of and the quality of affordable legal services.

Among the many changes in the practice of law is the use of online technology. The initial impetus behind the use of the internet was to make the rule of law available to people who previously had no access to a judicial system. The ubiquity of smart phones was key to making courts available to countless millions of people all over the world. From that original motivation has come a burgeoning use of online video for hearings, depositions, negotiations, arbitrations and mediations.

I recently mediated several claims, including multi-party matters, online. The conventional mechanics of a mediation transition to online seamlessly. There are now 2 generations of lawyers who grew up with smart phones, the ubiquitous presence of computers and the skill to use them. For them, facetime is an unremarkable fact of life. The only question posed to me about mediating online has been whether there is a measurable loss of efficacy. In other words, was the virtual experience of negotiating across the table a satisfactory substitute for the in-person version. My experience, the party’s feedback and the insights of others published in a variety of sources is, not much. (www.pon.harvard.edu/daily/mediation/dispute-resolution-using-online-mediation/)

In fact, to many, the difference between online and in-person did not register as an issue at all. As I have said before, online mediation is an inadequate alternative in some kinds of disputes. But the vast majority of claims can be successfully mediated without leaving your office.

Please don’t hesitate to call or email me if you have any questions about the process or a particular case.

"Revive All the Lawyers"

Jennifer Senior, in her review of Preet Baharara’s new book, Doing Justice, A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law highlights what she calls his inspired and slightly perverse idea about how to salvage public discourse in 2019: We should take our cues from American criminal trials, in which both parties are obliged to consider flaws in their own arguments and understand the mind-set of the other side. Assertions must be evidence based; research must be rigorous; decorum is paramount. “You can’t call your adversary a ‘low-I.Q. person’” he notes. “You can’t argue the prosecution is political; and you can’t make sweeping biased statements.” And Senior suggests that the first thing we do to turn things around is “revive all the lawyers.” Indeed! www.nytimes.com/2019/03/22/books/review/preet-bharara-doing-justice.html

It should be no surprise that it was easy for me to relate Baharara’s views to mediation. A willingness to critically examine one’s own reasoning and logic, a commitment to civility and respect for others and the ability to listen with the aim to understand are not fuzzy or naïve ideas; instead, they are at the heart of any effective system designed to resolve conflict.

THINKING OUTSIDE THE BOX: ONLINE MEDIATION IN 2019

It goes by a variety of names, Online Dispute Resolution (ODR), eMediation or Online Mediation. Regardless of what you call it, Online Mediation is an innovative and efficient alternative to the conventional in-person mediation.

Online Mediation was first developed to make the justice system available to people who, for a multitude of reasons, could not readily access it. Now, however, online technology can make our evolved mediation system more flexible and adaptable to the way mediation is actually used here in Florida.

ADVANTAGES

· No travel time or expense

· The technology emulates an in-person mediation

· Well suited if parties, lawyers or decision makers are geographically remote

Online Mediation can make the logistics of mediation simpler. If getting together is made easier in the first place, there will be more time to actually mediate and fewer obstacles to scheduling a second session, if needed. Time pressure and the reluctance to get together again because of cost (both time and money) are often the cause of impasses.

Online Mediation can lower the cost of mediation. Those costs may include travel time, transportation and accommodation costs, parking, etc. for both the lawyers, their clients and other decision makers. The technology emulates an in-person mediation (private caucuses, confidentiality, document sharing, preparation and execution) but, obviously, it lacks personal interaction, something that only comes from physical proximity. I think, however, that online ways of communicating hold promise, if we use them thoughtfully and appropriately.

Online Mediation is not for everybody or every situation. Please contact me to discuss whether Online Mediation is the appropriate ADR format for your case.

https://www.pon.harvard.edu/daily/win-win-daily/videoconferencing-a-win-win-negotiation-strategy/?utm_source=WhatCountsEmail&utm_medium=daily&utm_date=2018-12-10-13-30-00&mqsc=E4012382

ARE WE HARDWIRED TO DELUDE OURSELVES?

Those who study cognitive bias seem to think so. They disagree on whether we can do much about it.[1] The question and the answers are at the heart of mediation.

Most of us have seen this before, the Muller-Lyer illusion. Because of the direction of the arrows at the ends of the lines, the bottom segment appears shorter than top segment, even though they are the same length. And even after the lines are confirmed to be the same length and the neurological basis of the illusion has been explained to us, we still perceive one line to be shorter than the other.

While familiarity with the illusion or academic training in logic and reasoning can be a cue not to trust our brain’s hard-wired response to it, it is not so easy in the real world. In the midst of a lawsuit or a divorce, when we are forced to deal with complicated and fast moving situations that require critical thinking and have serious consequences if we make the wrong decision, it can be almost impossible.

Even common sense approaches to problems often produce errors in judgment and self-defeating actions. There are smarter and less smart ways of solving them. People’s reasoning, when it is compared to scientific, statistical and logical standards, reveals large classes of decision making to be systematically mistaken. Inferences frequently violate principles of statistics, economics, logic and basic methodology. See Nisbett, Richard E.(2015) Mindware: Critical Thinking for the Information Age, Farrar, Straus and Giroux New York, N.Y. also,

http://ww.mooc-list.com/course/mindware-critical-thinking-information-age-coursera

Experience has convinced me that critical thinking does not come naturally to many people and that it is not a skill that many have a strong interest in developing. To make matters worse, anxiety, stress, anger and fear that plague the people involved in lawsuits, further diminishes their ability to avoid the consequences of flawed reasoning.

This is the stark challenge facing mediators in many cases; figuring out ways to point out to people their fractured logic, unreason, cognitive illusions, ineffective communication skills, etc. while revealing to them possible adjustments in their thinking that might help get them what they want (even when they are not at all clear what that is). All of this is done in ways that make any insights they gain seem to be their own and without making them feel like they are being scolded or told what to do.

Fortunately for me, I have always been fascinated by the question why do people behave as they do? Mediating, while daunting, frustrating and sometimes unsuccessful, has always been worth the effort. It is the most interesting and rewarding work I have ever done.

[1] Yagoda, Ben “Your Lying Mind.” The Atlantic September, 2018: 72-80. www.theatlantic.com/magazine/archive/2018/09/cognitive-bias/565775/

What’s a cat got to do with it?

Do you remember the thought experiment about Schrödinger's cat? You might wonder what Mr. Schrödinger's feline has to do with mediation? I recall listening to eyewitness accounts of a car crash and wondering if the witnesses all saw the same event. In the context of conflict, understanding the client’s point of view (and yours, as well) is critical. It's not a simple or easy thing to do.

Notions like "nature is neither here nor there" and the question "is there a true story, or is our belief in a definite, objective, observer-independent reality an illusion?" are fascinating for physicists. But, again, how do they relate to mediating lawsuits?

For my purposes, I regard the paradoxes of quantum physics as a metaphor for the unknown infinite possibilities that exist in every controversy I mediate.  Science suggests that there is one true story, but that it has many facets, seemingly in contradiction. That is why bringing facts to light is central to understanding (and resolving) controversy.

In any conflict, people want to create an harmonious, attractive picture of their story. While looking through the prismatic lens of emotions, they gather together all of the facts ("facets") they need in order to create the picture they want. Then, using common sense, logic, reason, metaphysics, guile, you name it, they stitch these facts together into a “true” picture of their story. Even though they have all gone through a similar picture making process, the results are so different that they cannot recognize the others’ pictures as true. What they lose sight of is that while there was only one car crash, only one marriage, only one breach of contract, they all observed the event from their own unique perspectives and their pictures of the controversy reflect that fact.

These pictures at a distance create an illusion of a forest. If all you have to talk about in a negotiation is your picture, you may as well take everyone’s pictures of the forest, tape them to the wall and argue over whose picture of the forest is prettiest. Keep in mind, “pretty” does not often find its way into a courtroom. The challenge in mediation is to accept that there are as many pictures as there are stakeholders. The key to success is to move into the pictures in order to understand why the pictures look the way they do and then decide which picture makes the most sense, even if it isn't yours. 

The New York Times, The Reality of Quantum Weirdness www.nytimes.com/2015/02/22/opinion/sunday/the-reality-of-quantum-weirdness.html

"Storyboard" Your Next Negotiation

Let's start with a mathematical truth – if you wiggle the input, it affects the output. If you inject facts into a negotiation without assembling them into a pattern (story), you can create chaos. In negotiations, like mathematics, context is everything. Take this storyline for instance... an American movie actress, whose father is white and whose mother is African-American, meets and then marries a British prince. An implausible fairy tale without context, wall-to-wall tv news with context.

The story in any negotiation is important because it is a critical tool. Every negotiation requires a story in order to make true things broadly comprehensible.  Taking data points and weaving them into an understandable and persuasive narrative is a critical step,  not unlike a director creating a storyboard from the many elements of a screenplay.  The process creates a powerful advantage if the story is coherent, plausible and economical.

The client’s story is the important story. It is different from a lawyer’s interpretation of the client’s story. Lawyers help their clients by suggesting prudent edits to the story that leave intact the heart of their client’s story. If there are scenes from the client’s story that the rules of evidence will exclude or for which there is inadequate proof, it does not mean that they have to end up on the cutting room floor. Instead, the storyboard can be edited so that every element of the story is given its appropriate place in the narrative and the story remains true for the client.

It may seem odd to consider, but even the most tangled, chaotic and seemingly intractable controversies devolve into stories, some complex and some not. When we look back to understand how and why we moved in time from point A to point B, we are searching for stories. Take, for example, the deal struck between the United States, Great Britain, France, China, Russia and Iran (the Joint Comprehensive Plan of Action) over Iran’s nuclear weapons program. When we seek to understand what happened, we will look for the stories. In fact, many of the story lines implicated in the JCPA negotiation show up in ordinary  mediations, with the obvious absence of WMD’s:

• Religion
• Culture
• Language
• Family history
• Long, complicated and often hostile histories between and among the parties
• Imbalance of bargaining power
• Profound lack of trust between and among the parties

These bullet points  represent just some of the threads that may appear in your client’s story. They deserve your attention. Don’t ignore them because they do not fit into a trial brief. They represent the raw material out of which you can help them weave their story so they are ready to negotiate successfully.

What’s An Anchor?

Some people love negotiating and some people hate it. Some people are really good negotiators and some people are not so good. Sharpening your negotiating skills will go a long way in helping you represent your clients. This is especially true in a mediation, where your negotiating skills (or lack thereof) are on full display for your client to see.

In recent decades,  psychologists have learned a lot about negotiations. One of their most important insights was labeled the “anchoring bias” – an initial  offer, no matter how arbitrary, becomes an “anchor” that pulls the negotiation in its direction. As a result, planning your negotiation is critical. Misssteps at the beginning can become an anchor that eventually sinks your negotiation.

This anchoring bias can be used to good effect by expressing offers in a range as opposed to a single figure. In a recent article in Negotiation Daily, Katie Shonk, does an excellent job describing the anchoring bias, using a negotiation to buy a car as an example. www.pon.harvard.edu/daily/negotiation-skills-daily/anchoring-bias-negotiation-get-ahead-range-offer/

The car has a fair market value of $5,000 to $6,000 and the seller opens with an aggressive $7000 first offer to sell. The researchers then described three (3) types of ranges built around the target price:

Bolstering range: A bolstering range includes the single-figure offer at one end and a more ambitious number at the other end $7000 - $7500

Backdown range: A backdown range has the single figure at one end and a less ambitious figure at the other end $6500 - $7000

Bracketing range: A bracketing range spans the single-figure offer, e.g., $6800 - $7200

Note: This is a far cry from the “bracketing” that is often simply an attempt to undo the damage done by making initial proposals that are so unrealistic that they undermine the credibility and trustworthiness of the negotiator.

In research that examined negotiations in which subjects employed one of these strategies, the bolstering range strategy produced some important advantages.

Buyers who received bolstering-range offers made greater concessions and more conciliatory counter-offers than did those who received the other offers. The bolstering range also suggests a degree of flexibility and accommodation, and, when strategically formulated, avoid damage to a party’s reputation that comes from making unrealistic proposals. Research suggests that ranges of 5% to 20% of the base figure appear to work best.

TWO TIPS TO ENHANCE YOUR NEGOTIATING PROWESS:  

1. Involve your client from the beginning in developing a negotiating strategy that is realistic and flexible – as the case goes on, things change +/-. Keep in mind that there is a negotiation that goes on between a lawyer and her client and an anchor can drown that relationship, too.

2. Resist the temptation to put numbers in play prematurely. Wait until you (and your client) understand your case and have a negotiating plan before you introduce money into the conversation.

“…I’ll Just Be a Mediator…”

The Senior Lawyers Division of the American Bar Association recently ran an article by Doug Noll, a mediator in California, Hey, I’ll Just Be a Mediator When I Retire!

Not So fast…

I’ve been teaching mediation to lawyers for more than 20 years so I was pleased to see Noll’s article address a core issue that I think the 40-hour mediation training program fails to adequately address: why become a mediator? 

Noll is speaking to lawyers later in their careers who are looking for a plan “B.” He is emphatic in saying that “[T]here’s almost no crossover in knowledge, skills or experience between lawyering and mediation.” Florida’s 40-hour mediator training requires every student to sit in the mediator’s hot seat and at the end is asked to reflect on the experience; the most frequent comment is “it looks easier than it is.”  

So the question why become a mediator? seems pertinent to almost everyone who plunks down their money for the training. Because the  Florida Supreme Court bestows its certification on anyone who sits through the class and completes the observations, there is little opportunity for participants to reflect on whether their interest in becoming a mediator aligns with the essential nature of mediation.

The best mediators are in it for the right reasons and their work reflects their commitment to principles:

·      Helping people faced with challenging controversies and difficult decisions

·      Eschewing advocacy for impartiality

·      Willingly working with difficult people

·      Supporting the goal of party self-determination

Beyond the principles, mediators have to master a whole range of skills that they do not emphasize in law school or in the 40-hour program, e.g. negotiation theory and practice, game theory, behavioral science and a host of other topics.

Good mediators offer the parties a depth of experience, skill, wisdom, a sense of humor and a healthy dose of humility. There are no algorithms or shortcuts; you simply have to show up and do the work.

Don’t Run. Stay and Talk.

I, like every other concerned citizen, want to do something to dramatically reduce gun violence. So when the opportunity presents itself, let’s not run but, instead, stay and discuss this profoundly challenging problem.

We are stuck in a kind of stasis that will persist without a powerful, reasoned basis for change. Not surprisingly, I experience this controversy from the perspective of a mediator with a deeply held personal commitment to and confidence in the power of reason.  My newsletter goes out to lawyers and so I try to offer useful insights into ways of resolving conflict. In this instance, I strongly believe that lawyers/mediators can make an important difference by serving as honest resources for the law of the Second Amendment.

Read (or re-read) District of Columbia, et al. vs. Heller, and every time you have the opportunity,  engage with others and provide insight into what the Supreme Court says the Second Amendment means. Lawyers are trained to read and understand case law; use that skill to shed light on this critical debate. These are dark moments and even a little bit of light may make a difference.

MORE RATIONAL AND LESS EMOTIONAL

More rational and less emotional... It is a widely sought-after state that is seen as better than one infused with emotions. And it is seen by many as the ideal state of mind when resolving conflict. I think that this paradigm, dismissive of emotion, is a pernicious fiction.

Society, in ways largely created by men, exerts tremendous pressure on women to modulate their emotional lives so that they fit the normative view that emotions are merely an impediment to be overcome to get to reasoned thought, as if the two were separate and distinct and not bound up inextricably. The harm from this attitude extends far beyond any conversation about feminist ideology.

At what cost do women push aside their biology in order to negotiate in ways that men see as advantageous?  “Women’s emotionality is a sign of health, not disease,” says Julie Holland, a psychiatrist in New York. http://www.nytimes.com/2015/03/01/opinion/sunday/medicating-womens-feelings.html?_r=0  In her essay in The New York Times Magazine, she wrote about the effect on women of a widely held belief that expressing their emotions reveals that they are weak or out of control.

Men, too, view their emotions as an obstacle to attaining and keeping power. Thus, when confronted with an emotional obstruction to solving a problem, men may be willing to allow for some “venting,” but not a lot of it, before getting back to the problem at hand. In a sense, conflict resolution systems, like mediation, rest on behaviors typically seen by males as essential ingredients for resolving conflict – spare problem solving; short time lines; command and control of the issues, and so on.

The behaviors most often identified as feminine – empathy, patience, compassion, emotionality – are viewed as time consuming obstacles to resolving conflict efficiently. In much the same way as many languages assign a gender to words, today’s mediation would likely be male. But it need not be thus.

There are behaviors in every negotiation that are more often than not expressed by one gender or the other but not exclusively and not all the time.  The challenge is to recognize and understand the behavior without making it good or bad, right or wrong, male or female. It is a skill that will make you a much better negotiator.

Avoiding the Avalanche

I hardly need to mention the avalanche of recent allegations (and admissions) of workplace sexual harassment, sexual discrimination and worse. Employers are facing more and more employment discrimination claims. The EEOC has ramped up its focus on systemic discrimination in the workplace. A prompt, thorough, independent and impartial internal investigation of an employee complaint must be an essential part of your client’s response. By planning ahead, you can help your client avoid costly and disruptive controversies by providing an informed and reasoned approach to early settlement. It can also lay the groundwork for your defense of your client in the event that a lawsuit is filed. 

I have had decades of experience in employment and labor law. I started as a field attorney with the National Labor Relations Board in Tampa, was an associate with Jackson, Lewis and spent more than 25 years in a wide-ranging private practice representing management, unions and individuals.  That experience included trials in federal and state court. I have been a full-time neutral since 1998.  I have mediated 100’s of employment law related claims and have been retained to conduct internal workplace investigations by both private and public-sector employers. I can also serve in the role of ombudsman.

I can provide you and your client with valuable assistance, both practical and legal, for planning, conducting and documenting internal investigations of employee claims and suspected employee misconduct.
 
Please do not hesitate to call or email me with questions. 

HAPPY HOLIDAYS!

10 Foolproof Ways to Wreck Your Next Mediation

Using mediation effectively as a tool to resolve conflict is more challenging than many think. Preparing for a mediation is not the same as preparing for a trial. The skills required to be a first-rate negotiator are, in many ways, different than those of a successful litigator. And just as there are numerous ways that a trial can quickly come off the rails, there are just as many ways that a mediation can start on a downhill slide to impasse.

What follows is not an exhaustive list of mediation mistakes. Instead, these are simply 10 blunders that can sabotage a mediation that I have seen made over and over again. 

1. Spend little or no time with your client before the mediation explaining how he or she can best participate

2. Decide on your opening negotiating position AFTER the opposing lawyer gives his opening remarks

3. Increase or decrease your last pre-mediation proposal without a plausible reason, only that it is being done as retribution for not accepting it when it was made

4. Use your opportunity to talk directly to the other side to predict a certain and disastrous outcome if he or she persists in moving ahead with litigation

5. Make an initial offer that you and everyone else in the room knows is preposterous

6. Insist that the person making the preposterous initial offer make a “reasonable” offer before you will begin negotiating

7. In a case in which your BATNA (best alternative to negotiated agreement) is a jury trial, fail to insist that the decision maker show up so as to miss the opportunity to actually see and talk to the other party

8. Avoid any opportunity to build rapport by refusing to engage in friendly small talk with the other party

9. When given the chance, decline to ask good questions that might encourage detailed responses and create the basis for progress

10. Fail to anticipate having to provide details for your proposals and leave the supporting documents at your office

Keep this in mind: the mediator is there to help you negotiate an outcome that your client and the other side can live with. Choosing an experienced mediator who not only knows best mediation practices, but also what not to do can mean the difference between failure or success.

Magical Thinking and Mediation

Magical thinking: people believing in things more strongly than either evidence or experience justifies. It is a bargaining strategy that I see used again and again in mediations that consistently does not work.

Mediators should be masters at analogizing. Yet, getting people to see time as a stream in which the future is always on the verge of becoming the past is no easy task. Mediators have to constantly ask what is new about the present because “[T]he future may surprise. It surprises because something in the present, hard to see, weakens the past as a guide.” – Thinking in Time (http://www.simonandschuster.com/books/Thinking-In-Time/Richard-E-Neustadt/9780029227916)

People do not often resolve lawsuits (or other controversies) out of fear. They resolve them when the outcomes make sense to them. Their decisions to settle are rooted in self-interest. But self-interest is hard to discern when there is no reasoned way to understand it. For example, a decision to resolve a controversy based on the fact that litigation will inevitably cost as much (or more) than the amount in dispute is an important fact. But the emotional reaction to such an outcome is often subsumed by magical thinking and the power of unreasonable expectations of what is to come based on imagining the past. 

MEDIATION – “IT AIN’T OVER ‘TIL IT’S OVER.”

Mediations are like baseball games – no game clock. Both ball games and mediations have average lengths, median lengths and, sometimes, unusual lengths – very short or very long. In baseball, you just keep at it until someone wins because there is no plan B. A mediation, on the other hand, can end because there is a plan B, albeit one in which the winner is decided by a judge/jury and not by players putting runs on the score board, so to speak.

Negotiations require hard work and they take unpredictable lengths of time. And while there are aspects of “game” playing at work in every negotiation, mediations seldom benefit from a game clock. There may be time constraints embedded in the controversy itself but they are different than time constraints on the mediation caused by frustration, impatience, airline reservations or overbooked schedules.

Leave enough flexibility in your schedule so that you, the other side and the mediator have the time it takes to get the case resolved.

MEDIATION MONKEY BUSINESS

I think that helping people reason their way through emotionally fraught conflict is the core competency for a mediator. It is also the most challenging to master. Can I help a person think of a reason that makes sense to him and allows him to unclench his fist?  And can I provide that kind of help and remain true to the essential tenet of mediation – self-determination?

In South Asia, monkeys are sometimes trapped by placing food in a secured vessel with a small opening. When a monkey slips his hand inside to grab the food, it soon discovers that its clenched fist is too large to pull out through the hole. The monkey will remain stuck clinging to the food until someone comes along and captures it. This “attachment trap” is a metaphor for a core Buddhist principle: by holding on to external sources of happiness, we prevent ourselves from being truly free.  (http://rubinmuseum.org/blog/inside-brainwave-2015).

The attachment trap that plagues the monkey is the same problem we struggle with when we try to resolve difficult conflicts. In spite of our evolutionary advantages, we nevertheless keep our fists clenched, holding onto positions that keep us captive – unable to identify and advance our self-interest.

Compared to the monkey, however, we are capable of a greater ability to reason – to take into account competing interests, assess risk and distinguish fact from fiction. It is not easy but with time, energy and the help of a skillful mediator, even seemingly intractable controversies can be resolved.

Mediation Impasse - the death of hope?

Impasse, a predicament offering no obvious escape, is imbedded in the vocabulary of mediation and understood by many as the death of hope. But who believes that every controversy can be settled in an afternoon? In fact, mediations are often the first time that everyone actually understands the problem and the obstacles to resolving it.

Mediation is widely viewed as a one-off, a do or die sprint. The case settles at mediation or it doesn’t and, if it doesn’t, mediation is said to have failed, to have ended in an impasse. Is there a more efficient and economical way to deal with a claim that cannot be settled at an initial mediation than to declare an impasse and return it to the court’s docket? 

The obstacles to settlement cannot always be overcome in three hours. All too often, the parties wind up frustrated because critical information is missing. There is also the matter of emotions, which animate the way people behave and which take time to change. People frequently react to all of this by throwing in the towel and reverting to fighting. They fail to create a plan for dealing with the issues that kept them from a settlement then and there.

Mediations end in impasse for a reason (or reasons.) Consider making a list of the issues that have been resolved and another list of the issues that have eluded resolution. The second list is often surprisingly short and can form the framework for gathering the additional information necessary to push the negotiations forward. Then make a written commitment to meet again after a reasonable period of time and have another go at it. 

Why Would You Mediate with the Wizard of Oz?

The Wizard in the Wizard of Oz was a well-meaning con artist, a frustrated carnival magician from Kansas. He hid behind a curtain and used special effects to manipulate others to do his bidding. His power over Dorothy derived from his remoteness and her imagination.  Until Toto intervened and pulled back the curtain, he exerted control over her and everyone else in Oz. Once he was revealed, his advantage disappeared and he was left to deal with Dorothy on a level playing field. 

So why would anyone agree to participate in a mediation with a decision maker (Wizard) hidden inside a telephone? Resolving the kinds of conflict that you deal with is not easy. Negotiating is an exercise in persuasion that involves communicating facts and feelings and requires all your senses. As someone said, it’s my brain communicating with your brain and lots can go wrong in the distance that separates us. And this pertains not just to the people sitting in the room with the mediator. The decision maker on the phone is also at a big disadvantage. His information is filtered and shaped, albeit with the best of intentions, but it is a poor substitute for firsthand experience. And, just for fun, let’s imagine what that missing decision maker might be doing while you’re talking: reading/responding to/deleting emails; texting; working on another file; talking to someone else; watching CNN; and so forth. Not being in the same place at the same time dramatically diminishes the efficacy of mediation.

Everyone is interested in making high quality decisions when it comes to resolving important controversies. But decisions based only on what you’ve heard on the phone are a poor substitute for ones made sitting across the table.  Except in unusual circumstances, insist that all the stake holders sit with each other face to face and do the work needed to strike a deal.

MEDIATION AND THE THEORY OF EVERYTHING

First, let me emphasis that I am very skeptical that there exists a theory of everything, much less one that explains human conflict. And I do not believe that there is a single protocol that resolves conflict. Nevertheless, research has revealed recurring patterns in a wide range of human behaviors. Can these insights be used to help people resolve conflict within the system we broadly refer to as mediation?

In a recent essay, When seeing is deceiving, columnist Craig Silverman lead me to The Ravenous Brain, by the neuroscientist Daniel Bor, and these quotes:

Perhaps what distinguishes us humans from the rest of the animal kingdom is our ravenous desire to find structure in the information we pick up in the world. We cannot help actively searching for patterns – any hook in the data that will aid our performance and understanding.

One problematic corollary of this passion for patterns is that we are the most advanced species in how elaborately and extensively we can get things wrong. We often jump to conclusions – for instance, with astrology or religion. We are so keen to search for patterns, and so satisfied when we’ve found them, that we do not typically perform sufficient checks on our apparent insights. www.tampabay.com/...seeing-is-deceiving/2220248

I think these findings are critical to understanding the nature of any particular conflict. And is it not essential that a mediator understand (or at least have a working hypothesis for understanding) the conflict he is there to help resolve? This understanding may mitigate the mediator's urge to supply the parties with a solution but it begs the question how does a mediator apply these insights? What's a mediator to do with them? Are we educators? Isn't teaching a kind of coercion? Are we morally neutral and capable of removing the spectacles of tradition, prejudice, personal experience and dogma? Can we pretend to be Socrates and simply ask questions that will ultimately lead people to the truth? Or do we acknowledge that we all have an agenda, like it or not?

But is it really possible for such neutral communications to occur between men? Is not every human communication a conscious or unconscious impression of one temperament, attitude to life, scale of values, upon another? Are men ever so thoroughly insulated from each other, that the careful avoidance of more than the minimum degree of social intercourse will leave them unsullied, absolutely free to see truth and falsehood, good and evil, beauty and ugliness, with their own eyes? Is this not an absurd conception of individuals as creatures who can be kept pure from all social influence... even that is, without the new knowledge of human beings that we have acquired today, as the result of the labours of psychologists, sociologists, philosophers? Isaiah Berlin, Russian Thinkers, Penguin Classics ebook location 5306,

Unfortunately, these patent contradictions between the mediation vocabulary (neutrality, party self-determination, exploring options, etc.) and what is actually happening in the mediation business are hardly talked about and I think it is time for that to change.

WHAT'S A BRACKET?

Bracketing is an old and simplistic negotiation gambit. It is used a lot and often with bad results. It has nothing to do with any of the real issues of liability or damages nor does it represent a rational process to determine a realistic settlement figure.  Even so, bracketing has a place in your negotiating tool box. If the parties have a mutual and in-depth understanding of the facts and the law, bracketing can bring the money issue to a head sooner than later. It can also encourage a reluctant but informed party to open with a reasoned offer.

Bracketing is essentially a “bid/ask” strategy and its success is almost entirely dependent on persuading the other side to open first with a reasonable proposal. Example: If a mediation begins with no money on the table and a plaintiff thinks that a reasonable settlement is $500,000, then a $1,000,000 “demand” against an offer of $0.00, will inevitably, no matter what anyone (including the mediator) says or does, result in a $500,000 message arriving in everyone’s inbox. And if this opening gambit fails, which it most often does, the cat is out of the bag, so to speak. You have given up a great deal of information (if you are serious about $500,000) with absolutely no promise of getting anything back for your candor. Moreover, you invite what some call double-bracketing, a strategy of responding to a bracket with a bracket but one that moves the mid-point away from yours. That number bears no relationship to anything other than it is a different mid-point.

There are many other effective, creative bargaining strategies that rely on reason and logic, while also acknowledging how people feel about the controversy. Resorting to bracketing because a negotiator is frustrated or impatient is not likely to result in a settlement. Patience and preparation remain the key to a successful negotiation.

As they say in the ad on TV, I know a thing or two because I’ve seen a thing or two. So let me help you make the most of your mediation.