Why We Do This Work

I had two recent mediations that touched on the intangibles of being a mediator. In the first, after several hours of discussion both together and in private sessions, it became clear to all that a settlement was not possible. While meeting with the claimant and lawyer, the claimant said "I really appreciate what you've done today." I of course said "thank you" and then asked if they would say a bit more about what they appreciated.

The response was "you are really listening to me, I feel heard." Even though the case was not headed toward settlement the claimant felt good about the mediation process and my work in that role. We had connected and they felt heard. Now we talk a lot as mediators about listening and here it was, right in front of me.

In a second mediation, I was in a private meeting with the claimant and counsel when I reported that the other party had agreed to their proposal. They had settled their claim. The claimant was happy, got up and gave me and her lawyer a hug. She physically looked like a large weight had been lifted off her shoulders.

So, in one week, I was really listening and got a hug. This is part of why I do work as a mediator. How about you, why are you a mediator?

Waiting is . . .

"Waiting is" - These are the words of Michael Valentine Smith. A human raised by Martins in Robert Heinlien's classic science fiction novel, Stranger in a Strange Land. For Michael, "waiting" was a completed act. I believe the same can be true for mediators.

In a recent workers' compensation mediation, the claimant had returned to a new job earning a wage greater than in the employment where injured. The discussion ranged over medical issues and impairment ratings as well as strong feelings by the injured worker about treatment by the company post injury. We talked, we negotiated, I listened and waited.

The talk focused on settlement and after several offers and counter offers the participants had shared very different ideas about resolving the claim. The numbers were close; however, not that close and while settlement was possible, it did not seem likely to the participants. (This they shared in private caucus.) And still we talked and considered and continued with the mediation process.

We spent many hours together that day and there were several opportunities for me as mediator to say "let's stop;" however, I waited for the mediation process to do its work. Eventually, the injured worker decided that the settlement offer was enough, that it was time to move on both literally, i.e., the length of time of the mediation and the potential time at hearing and, figuratively, it was time to let the hard feelings go.

Thus, the process works if you give it time. If you continue to hold the space for the participants to do the hard work of considering their dispute and seeking to resolve it. The mediation process is - like waiting is.

How we do our work as mediators

I recently came across an interview with Ron Hawkins who is the National Ombuds for McDonald’s USA working with both franchise and employee issues. He was asked about his work and explained that resolving conflicts was primarily based on trust – “You build credibility by building trust, and you build trust by doing the right thing. It’s not who’s right, it’s what’s right. And it’s not what’s done, but how it’s done.”

This is a great reminder to us as mediators – it’s what we do and how we do it that matters. In fact, the “how we do it” is probably as much or more important than what we do.

Our skill set is about process both in terms of how we do “things” and the “things” we ask of mediation participants. Do we change how we do “things” as the mediation progresses? I’m sure we do; however, within such differences let me remind you that how you do things at the beginning of your mediation and how you do things at the end should be consistent and framed by the tenets of mediation as you subscribe. For me these include, among others, being impartial, neutral, an advocate for the process, and seeking participant self determination. Even as I may connect more with one or more participants I must still maintain a level of professionalism that allows me to hold the big mediation picture in place and stay in my mediator role.

So, next mediation, reflect on how you do “things” at the start and at the finish.

Mediator Power

Since the first of the year, the US has begun to reshape its foreign policy approach and commentators have talked about using “soft power” instead of “hard power” to achieve policy goals. This got me to thinking about mediator power.

I came up with the following lists to divide mediator power into hard and soft power.

Hard

Direct process

Evaluative focus

Challenge participant views

Settlement

Objectify decision making

Solely a business decision

Authority over process

No food

Separate participants

Soft

Follow process
Relational focus
Support multiple perspectives
Resolution
Objectify and subjectify decision making
Business and personal decision
Share process authority
Food
Work with participants together and separately

This is by no means meant to be an exhaustive list and I’m not sure the respective powers are so clearly separated; rather, they may be on a continuum. With this in mind, let’s consider the first, process leading versus following, as an example.

On one end of the spectrum you have the mediator who leads the process and makes all the process decisions. These will generally include - Who should talk first, when to meet in private caucus, when to stop the mediation, etc. This mediator is firmly in control of the mediation process.

On the other end, is the mediator who follows, asking “Who would like to start?” or “Do you need a break or a private meeting at this time?” This mediator does not control the process.

In reality I suspect that most mediators move between hard and soft power depending on their mediation framework and the needs of the participants. I certainly find value in following the lead of participants and I often present process ideas to move discussions. I suppose I take the “both – and” approach with hard and soft power. Perhaps you do too.

Could - - Not Should

I was in a mediation recently that provided a clear example of the difference between a mediator giving an opinion of case value versus a mediator offering an opinion about where the case could settle. I believe this is an important distinction of both form and substance.

Here's what happened. I was in private caucus with defendant and was asked by one of the participants “Where do you think the case should settle?" This question came after several hours of discussion and several offers and counter offers. I responded back to the questioner that I could answer the question if I could change their word "should" to “could.” Using “could” allows me to offer thoughts about a settlement range based on the offers and counter offers and both general and private discussions with the parties. In part, this question had been asked because the numbers had started quite far apart and the questioner was trying to discern whether there was value in continuing the discussion. I believe these are important instances where the mediator can enhance the negotiation by providing insight without stepping outside the neutral role of mediator.

Usually I do this in the form of a review of where the numbers started, a discussion of what the numbers themselves suggest and then I usually offer a range and probabilities concerning the likelihood of settlement at any particular number within that range. I also couch the range and the specific probability of specific numbers as estimates and even sometimes as speculation. Since I do not ask people where they are headed (I want them to stay flexible) I often don't know the answer. At the same time, I’ve discovered that by paying close attention I usually end up with a pretty good idea of the settlement range. I offer these thoughts to encourage continued discussion while on the face of it, the numbers may suggest otherwise.

This approach is in contrast to the mediator deciding or valuing the case and telling participants what they (the mediator) believes is the value of the claim. While mediators may indeed have great experience and may be able to offer opinions about value, I believe any time the mediator offers a value opinion, the mediator has shifted from a place of neutrality to a place of taking sides. And once you take a side as mediator, you lose the ability to be neutral and you lose the ability to effectively do your job. So, mediators, don't offer value opinions. Offer “where the case could settle” opinions!

Get engaged !

These are tough economic times. What’s the effect on mediation practices? I was at a recent educational program and on a break spoke with a plaintiff’s attorney about how to settle claims in mediation with the economy in its difficult state. While there is no clear or easy answer, I suggest the following approach.

If you want to get your case settled, you need to get everyone involved genuinely interested. From the plaintiff’s counsel perspective, you need to fully engage both defense counsel and insurance professional in the settlement process. The prime mover in such engagement is making a "reasonable" settlement proposal. This works best when done before mediation so that defense counsel and insurance professional have time to review and prepare for mediation, i.e., set reserves, get authority, etc.

With respect to plaintiff’s initial proposal, don’t make it so high that defense counsel and insurance professional have no belief in potential settlement. If the proposal is out of this world high, then they will not be engaged in the process and are not likely to do any additional work to obtain greater authority than their own previous evaluation. On the other hand, a demand that defense counsel and insurance professional consider "reasonable," can go a long way towards creating a more conducive settlement atmosphere. Of course, any demand must build in some negotiating room, just consider how much room you really need!

The same concept holds true for the defense side of things in terms of making counter offers. If you make proposals that the other side perceives as a decent step, then they are likely to also take a decent step. And once folks are moving, then an opportunity is created. With no movement or very small increments, a negotiation or mediation can get bogged down. People can become frustrated and lose interest. And with interest lost, comes a lost opportunity.

So, get folks engaged. Get them believing that a settlement can be reached and you have set up your mediation for opportunity.

Super Bowl Party

Did you hear that President Obama had a Super Bowl party? And not just any party, but a bipartisan party. President Obama invited elected officials from both political parties. What a great idea to get folks together in a less pressured atmosphere, to make connections and build relationships. It certainly can't hurt and who knows, it might help down the road.

Does any of this sound familiar to you as mediator? Have you ever tried to get folks in a mediation to meet over a cup of coffee, lunch or a late afternoon snack? I have and find that when you get people in the same room who are in dispute, they can be tense, they revert to various "posturing" and "positioning" behaviors that are not always constructive. However, get together in the break room over coffee or that mid afternoon cookie and often the interaction is very different. This is particularly true with people who know each other (usually the attorneys) and such interactions, even for small moments, can provide useful information to you as mediator and create opportunities.

I bring muffins and sometimes fruit to my morning mediations and usually cookies in the afternoon for this very reason. I try to create personal interactions that are not specifically directed at resolving or settling the dispute. I create personal interactions to create connections between the mediation participants, and in so doing, it sometimes opens a door in the negotiation that had been closed.

So, next mediation - have a Super Bowl (Dispute) Party!