Archives for category: Mediation Career

As mediators, we have long known the importance of creating the proper setting for a mediation.  Where do we place the chairs, do we provide water and coffee, do we cross our arms or lean back into our chair.

I recently watched a negotiation where I observed the importance of also creating the proper emotional setting.  The issue at hand– letting go of a product that was no longer profitable–was emotionally charged.  One party, the owner, was eager to drop the dead weight and move on to more profitable ventures.  The other party had invested years of her life into this product.  She had dreamed up the product herself, envisioned how it would be used, and was thrilled when her company said they would adopt it.

Entering the room, it was clear that neither party was ready to mediate.  The owner did not come prepared with facts about the future or health of the product, he simply wanted to move on to a next product he was more interested.

The employee could not have the conversation.  Letting go of this dream was so terrifying to her, so earth-shattering, that she froze before any negotiations could begin.  She reacted a variety of ways–in anger, in denial, in silence, even getting up repeatedly and leaving the room–but she was unable to examine this new possibility.

The genius researcher Sarah Peyton said that the brain is not able to discuss a concept unless it is within the brain’s window of tolerance.  For this employee, letting go of her dream was clearly outside of her window; it was more likely on another continent.

As an observer, it was clear that the product had identity value to the employee.  If the product failed, she would identify herself as a failure.  In her extreme state of agitation this was not something that I could discuss with her.

So how do you precede in mediation when one party is too wrapped in fear to mediate?

What I observed in this case worked beautifully, so I will outline it as one potential option.

1) Meet with both parties in caucus.

2) While listening to the party with power, in this case the owner, identify that you would like reassurance from the owner to be able to provide the other party simply to give them freedom to brainstorm.  In this case, the owner said that he was willing to back the product for at least another month, giving them time to discuss other options.

3) While listening to the party with fear, listen openly.  Take notes.  Neither “confirm nor deny” their fears; just listen.  Give them space to vocalize what they are afraid of. This might have been their first time to talk through it, and it is unlikely they will be unwilling to negotiate until they know the shape of their fear.

4) When they are winding down, repeating themselves, or working themselves up even more, step in.  In this case, the listener began with “thank you for being so honest.  I understand much better now.”  Then she slowly listed back a couple of the fears. Then the mediator said, “I want you to know I just finished speaking with your boss who confirmed me that we are not here to talk about trashing your product today. We might need to in the future, but today your product is safe.  We need to talk about ideas for your product and the future of this company.”

5) After the party has talked through all of their fears, be careful about letting them go down that road again.  The party immediately became afraid and began again to explain all of the reasons she was afraid.  The mediator observed that the party was working herself up to an even higher state of anxiety, so she stepped in and said, “I think I understand your reasons.  How about this: why don’t I check-in with you to make sure I heard you, and then could you check in with me to make sure you heard me?”  It was beautiful.  The party began to feel safe.

6) When they came back together to negotiate, they both agreed to initially not discuss trashing the product.  Instead, the employee agreed to personally take more ownership of the product herself outside of work, and invest more time during the day into other developments. The owner of the company agreed to release his interest in the product and help the employee develop her own private company to house her product.

So in this case, by identifying and removing the party’s fear she was able to brainstorm.  She negotiated herself into the very thing that she was afraid to discuss earlier.  But by removing the fear associated with it, she realized it was the very thing she wanted.

 

In a recent Fairly Legal episode, I watched Kate Reed on her “mediation high.”

Her face was flushed, her words had accelerated.  it was apparent her heart rate had quickened.  In the midst of the conflict, the tension, and the anxiety she almost looked like she was  . . . enjoying herself?

I have seen this mediation high in both mediators and parties. When the adrenaline starts to rise I have even seen one party unconsciously begin singing to himself. You could tell he was enjoying the moment.

This is a fine line that can quickly be crossed. I don’t know if this is a line that I can get close to–I much prefer a quiet, peaceful environment.  But I have seen talented mediators very successfully bring people to the mediation high. I would liken it to riding a roller-coaster where the talented mediator is the seatbelt. Things become scary, almost dangerous. But the parties feel safe getting close to that danger because they know that the mediator will keep them safe.

I have also co-mediated with people that are incredible at keeping their cool in a heated, tense, adrenalin-ridden situation. They even made the choice to keep things at this intense level because it allowed parties to feel safe saying what they wanted to say and then–the truly amazing part–is that they rode the adrenalin high straight into a more creative agreement.  I remember once needing to print out a second mediation agreement because the party’s hands were shaking so much–from excitement–that she couldn’t sign her name.

So for those of you who feel comfortable mediating Kate Reed style: I applaud the new technique: Cardio Mediation.

The Goal is to be Fair, right?  Or at last make sure the parties feel that the process was fair.

In a recent video entitled Mediation 101 produced by the TV show Fairly Legal, Kate Reed (the mediator) explains that the goal of mediation is to be fair.  I continue to applaud this show and I don’t want to nitpick it to death, and I have the same mission for this video.

So Kate Reed says to the public that the goal of mediation is to be fair.  As mediators, we immediately cringe and say, ” But mediation is never fair.  There is always a power imbalance or a revealed secret that forces the mediator to spend more time, attention, emotion, etc. with one party.  And if the public thinks everything has to be 50/50 then will they be disappointed when they arrive in mediation and feel like they’re giving 51%?”

Well I think it’s good that Kate said that mediation is fair.  I think for the most part mediation is a much fairer process than most other forms of justice.  And wouldn’t we rather that the public arrive in mediation thinking it’s a fair process, with their guard down, ready to negotiate in good faith?

And even if we as mediators are guiding things to make up for any existing power imbalances, shouldn’t the parties feel that the process is fair anyway?

I say and again I say, “Keep spouting the magic of mediation, Kate!”  Any misconceptions she puts out there I’ll be more than happy to discuss with the clients as they are walking in the door, so long as the show keeps clients walking in the door!

 

 

View the video here:

http://www.youtube.com/watch?v=RhlDY0jA7uQ

Some people see things in black and white; I see them in tie-dye. This is one of my favorite quotes from my dad.  Sometimes life is simple, it’s black and white, it’s win/lose.  And then you walk out of the movie theater and back to real life.

A win is never completely a win.  Life is never 100% perfect or 100% awful.  We have to know this ourselves before we can tell this to our clients.  You can never expect to be 100% satisfied with any outcome.

What we can be is 100% satisfied with ourselves.  We can be proud of the actions we have taken, the forgiveness we have given others and ourselves, and we can be optimistic about the future.  A mediator who is grounded in this truth is teaching her clients by example how to truly settle a case.  It’s not about conquering the other guy, nor is it about conceding so much that you can’t even look at yourself in the mirror.  It’s about doing the best you can, “doing the right thing, and then doing it again and again,” (Legend of the Guardians–best animation I have ever seen in a movie, by the way).

The season finale of Fairly Legal showed Kate having a pretty junky day.  She didn’t have a single clearcut answer for any of her clients or herself. She made mistakes, but she owned up for them and she kept trying. This was my favorite episode because it is the one that I could most relate to (ok, so most of my days don’t involve being kidnapped by the Croatian consulate, living on a boat, and of course wearing fantastic Christian Loboutin heels).  I could relate to her vulnerability.  She was successful, sure, but it was a bittersweet, hard-earned success.  I think this type of success is much more common than the fanfare and parades that we hope for.  And if we can accept degrees of success it will help our clients learn it too.

Our clients what black and white.  We give them tie-dye.

When I first began mediating, my mentor told me that a good mediator can mediate any type of case.  The important thing was not familiarity with the subject of the mediation, but familiarity with the process of mediation itself.

Kate Reed in Fairly Legal certainly proves that.  She can mediate entertainment, IP, hostage, violence, domestic violence, and relationship disputes.

But is it true?  Is the best mediator the one who knows the process or the subject?

Imagine you’re in Manhattan and you have two options for taxicabs: “This cabbie really knows how to drive” or “This cabbie really knows the city.”

Personally, I probably wouldn’t choose either. Excellence in one area is simply not enough.  I need someone who knows where I need to go and who knows how to get me there.

Kate Reed is clearly familiar with the mediation process, but for most of her cases she has no familiarity with the subject. I believe this is acceptable for a novice mediator, but not someone who is mediating at her level. In the beginning, most mediators try out different types of cases to determine what they are most familiar with. At a certain point, they began to gravitate more and more toward a certain niche.  I believe this makes them a more valuable matter and more effective for their clients.

For instance, I have never mediated a divorce.  I could probably fumble my way through it: my introductory statement, parties’ opening statements, brainstorm options, negotiate, agreement, and done.  I would use the same process that I use for most mediations.  But am I serving my clients if I am not helping them to consider additional issues that might affect them?  Like what about holiday visitation schedules?  And what about dividing the 401K?  And all kinds of other issues that I am not aware of?  Aren’t the clients paying me to help them think through some of these issues?

Familiarity with the process is how you earn your keep. Familiarity with the subject is how you earn confidence.

Convincing Clients to Mediate

In the 8th Fairly Legal episode Ultravinyl, Kate cannot convince her band member clients to mediate.  She knows that mediation is the best option (the other party is dying and doesn’t have time to go through a lawsuit). So what did she do to get the other party to the table? She convinced the other clients that mediation was not the only option, but the best option. That if they wanted to find the treasure they have been searching for, look on the map and come to the big X marked Mediation.

Here are a couple tips that we can learn from about how exactly she did this:

1) Make it simple: Kate approaches the unwilling client using short sentences with one clear option, “We just need you to come to mediation and sign this agreement.”

2) Make the options clear: Kate explains that they can try mediation or that this will probably result in a lawsuit.

3) Test assumptions: The unwilling clients said, “We just don’t want Paul in our lives anymore.” Kate responded, “I understand you don’t want that Paul. But you might like the new Paul?”

3) Intimidate: “You come to mediation or you face a lawsuit.” or “I won’t work with you if you don’t tell me the truth.”

4) Check-in with the willing clients: If the unwilling clients seem unreasonably stubborn, maybe they have a reason.  Kate checks in with her willing client and asks,” What’s going on? What aren’t you telling me?” If the willing client divulges prior relationship history that explains the unwilling client’s unwillingness, then this will help you know how to approach the situation.  It might even alert you that you should walk away.

4) When all else fails, listen.

Some clients want to squeeze in a mediation before their morning run. Other clients want to be your new Best Friend Forever–emphasis on the Forever.

Our job lies somewhere in-between the two extremes of drive-through mediation and life-long partners.

Spend too little time with a client and you can’t have an adequate understanding of the problem to really be helpful. Spend too much time with a client and they are running to you every time things get tough instead of learning how to resolve things themselves.

So, how do we strike the right balance with our clients? We need to manage expectations early, clearly, and repeatedly. Tell your client in the very beginning how long you expect each meeting to last, how many meetings you expect an issue to take, and what to do if there are additional issues.  Of course, this can be amended during the mediation. But if you see a mediation as lasting two hours, and your client expects it to last eight hours: if you didn’t discuss this in the beginning it is nobody’s fault but your own.

Dear Kate Reed in Fairly Legal often finds herself in this predicament. Let’s examine how she does it as a No-No Guidebook:

1) Kate promises to fix everything.  Whenever her clients are in trouble (which they always are), she promises that she will be the one to make it better.  Kate needs to be setting realistic expectations at this point and drawing the parties into the negotiation circle. She could say, “Call me with any questions, I’ll check on you in the morning, I’ll try my hardest,” etc.  Instead she says, “I’ll fix it; I promise.”

2) So what’s the problem with saying “I’ll fix it; I promise”?  Well, she says she will be the one to fix it, without putting any of the responsibility on the parties.  She is telling them to take a vacation.  It’s like she’s Ty Pennington on Extreme Home Makeover, and she is telling the clients to go calm down somewhere else so that she can come in, clean out all the dirt, and make things pretty before they get back. This is fine if she wants to be their live-in mediator.  The problem is she hasn’t taught her clients anything about communication, nor made the long-term relationship between her clients any better.

3) “I promise.”  How does she know that?  How does she know that she can get someone out of jail, or put someone in jail, or prevent a daughter from being abused by her father, or get a couple to fall in love again?  She can promise to try her hardest and do her best.  She can promise to be available until the end of the case. But promising an outcome that she has no control over is irresponsible.  It is being reckless with someone else’s life.

4) Kate always says, “Yes.” Even if she has somewhere else to be, even if she made it clear that she has another meeting in twenty minutes, when her clients want her, Kate always says yes.  On the one hand, this is very kind of Kate to make herself so available.  In some situations it is probably the best thing for the case.  But on the other hand, I think it devalues Kate’s time and her other clients’ time.  If someone tells me that they have a meeting with another client in twenty minutes, and at the end of twenty minutes they keep talking to me, it doesn’t make me feel important. Instead it makes me feel that I am talking with someone who does not manage time well and who does not care about other people’s time.  It makes me feel that the next time I will be the client getting stood up and that she won’t care.

At the end of the day, the best way to help your client act honorably is to act honorably yourself. If you hold yourself to a moral code, then your client will too.  I promise.

Sarah Shahi (the actress that plays Kate Reed) used to be a cheerleader–and it shows.

She cheers her clients up, she cheers for them when they do something right, and she cheers for them when they are on the defense (tee hee).

But when she is acting, I expect to come across as a typical actress.  Swooping in, all eyes on her, stealing the scene.  She doesn’t.  When I leave the show, I am still thinking about the parties and their problems.

So putting acting, networks, and ratings aside for a moment: I think she is exampling exactly what we should be doing as mediators.  Mind you, I would like –scratch that, I would LOVE — to swoop in at the last moment, with my chocolate cookie, my latte, my Christian Loboutin heels, solve everything perfectly, and have fireworks in the background lighting up my name.  And at the end of the day I would go home and be proud of how great I was.

But what about the parties?  Is it my job to impress them with how great I am?  Or to serve them and empower them and make them realize how great they are?  Sure, I think we want to impress parties a little bit so that they have confidence in our skills, but I think it needs to end there.  As someone who likes to talk (my husband chiming in says scratch that, LOVES to talk), it is hard for me sometimes to sit in the background and give someone else the credit.

I have created a checklist of tips based off of the Fairly Legal episode Believer.  Here are ways that mediators can empower their parties:

  1. Caucus: When Kate Reed asked the employer to leave the roof so that she could speak alone with the inventor, she was telling the inventor how valuable he was.  Caucusing with parties is one way to let a party know that you value what they are saying so much that you will give them your undivided attention.
  2. Identity: Kate Reed had her rooftop/jumper/inventor client describe who he was, and then she reaffirmed that back to him.  “You are someone who clearly loves your work, right?” She was able to help the man remember who he really was, and move past his immediate fears.
  3. Safety: It is up to the mediator to create a safe space for people to brainstorm.  If people aren’t comfortable, then they cannot think creatively. Simply put, when people know that they can suggest ideas without them being criticized, they can think outside the box.
  4. Compliments: Yes, flattery, unfortunately, works. Kate often greets people with little comments such as something cheesy like, “You look very dapper in that suit today.”  Or, after they have made a big concession, she acknowledges it.  When people receive positive reinforcement for making progress in a mediation, they are empowered to continue making right decisions.
  5. Believe: A lot of basic mediation techniques are really just good common sense.  As much as we would like to think that we have patent on them, most people know how to mediate well with a little help.  If you see that good part of people–with some people it takes a little airbrushing, I know–then they will feel your confidence.  No matter how good of an actor you are, nothing says “I believe in you” like actually believing in someone

So, the next time you’re in a mediation, instead of telling your clients what to do, sit back for a minute and let them know that you believe in them to make the right decision. And they might even do it.

 

Some things in life are inevitable.

You will get wrinkles. The sun will rise again. Charlie Sheen will drink.

And of course the final inevitability: everything has to be examined from the gender angle.

I put if off for as long as possible, but Kate Reed in Fairly Legal has just made it too hard to ignore: women and men are actually not the same. (I am about to shamelessly stereotype here, be warned.)   Different genders are better at some things and worse at others.

Men:
~Great at connecting with other men with sports analogies
~Great at splitting the difference (just hand them a calculator, tell them it’s a remote and they have to find the channel in the middle. har har.)
~Much as I hate to admit it, typically better at moving past emotions and cutting to the bare bones practicality

Women:
~We wrote the book on understanding emotions and interests
~Great at connecting with other women through stories (“When I was pregnant, …”)
~Much as I hate to admit it, women mediators in too many courtrooms and conference rooms STILL are viewed by OWM judges and OWM attorneys as a glorified secretary.  I hate this.  And would vehemently argue this point with myself if I hadn’t seen it happen so often.

The point of this post is not to get into the actual details of the different powers and weaknesses that often come with being male or female (if you are interested in that topic though, please check out Deborah Tannen and Nina Meierding. incredible and insightful work).  The point of this post is simply to point out with different genders and different personality types come different types of power, and this power can be helpful or hurtful.

Helpful Use of Womanly Powers:
In a recent mediation Kate Reed met with one of her clients (Beth, the BBQ sauce creator) and inspired her to be strong.  She used her female gentleness to befriend someone who was scared, and then used her quiet resolve to inspire her client to do what she knew was right. Thumbs up.

Hurtful Use of Womanly Powers:
In another scene, Kate Reed saw two men arguing over stealing a lunch. She sweetly walked up, well, she kindly strolled, uh, she, ok. She flirted and seduced two men into agreeing with her. She convinced them to agree with something, not sure if either men were truly happy or just distracted, she didn’t help them learn to communicate with each other, and then instead of inspiring them to be more mature, she taps them on the nose.  Thumbs down.

Please, someone, tell me: when did seduction take the place of mediation?  And when did other women just let it happen?  I, for one, am incredibly proud of my skills as a woman: I’m a great listener, great talker, sympathetic, insightful, comfortable with emotions, and can inspire others (sewing, cleaning, dishes, laundry, not so good at. but I can talk til the cows come home!). So, dangit Kate, why not use one of the many incredible powers you have as a woman to build others up, further the profession, and bring peace to others?

Instead, she cocked her head, wiggled a little, and said, “Just do as I say, boys, and you’ll all be happy.”

To sum up: Mediation = Great time to listen, help, and heal. Bad time to belittle, manipulate, and seduce.  Unless you’re on Cable TV.

You know those mediations where the client says, “I was totally pig-headed. I don’t know how I could have been so rude.” Or do you know those clients who say they have been hard to work with and are ready to make things right?

Yeah, me neither.

As a matter of fact, when a client is in mediation I think it is the exact opposite. In Kate Reed’s BBQ sauce mediation, after the client turns down the SEVENTEENTH iteration of a BBQ sauce recipe, he turns to Kate and says, “I’m not trying to be difficult.” This client really thought in that moment he was being completely rationale.

People don’t get in fights because they think don’t really care about something. They get in fights because in that moment that issue grows and takes up the entire room; in that moment, they don’t care about anything else. They are convinced that they are right and there is no rational argument that could convince them otherwise. “Not trying to be difficult here, but . . .  I’m right. You’re wrong. And this thing will never end until you see just how right I am!”

Why is that?  How can two sane people become so crazy so quickly?  Because our brain tells us to.  The genius Sarah Peyton explained how neurochemistry affects the mediation process. In the easiest terms: you’ve got two main parts of your brain at play here:

  • The pre-frontal cortex: rational thought, understands relationships, past, present, and future.
  • The amygdala: instinctual, fight or flight response.

When someone is challenged by, oh let’s say, a savage bear running at them down Main St., then that person’s pre-frontal cortex goes off-line and their amygdala takes over. The brain says, “It’s survival time, baby! Kill or be killed!” Which is very useful when a bear is attacking you, but a little less useful in the mediation room.

What can a mediator do when two parties feel challenged and they are only thinking with their amygdala? Well, according to Sarah Peyton, rational, logical thought doesn’t work yet. “Um, yes, excuse me, that savage bear only wants to threaten you. It won’t eat you. Please put the spear down and come back and sign this mediation agreement.”  Instead, a mediator must get people back into their pre-frontal cortex.  This is where people can think logically. A couple suggestions: take a walk, drink some tea, doodle, look out the window and take deep breaths. These help your  body realize subconsciously that it is not under attack and it allows you to make logical decisions again.

How does Kate do this with the BBQ mediation?  The inventor of the BBQ sauce was clearly thinking irrationally. Something was wrong, but without his pre-frontal cortex engaged he couldn’t form the logical thought necessary to express what was wrong and ultimately settle the mediation. So Kate has him picture what the BBQ sauce means to him: childhood, innocence, family, rope swings, BBQing with his dad, and peace. This simple visualization allows her client to express what was wrong with the BBQ sauce: it didn’t feel like family. By changing the label to represent the image he had of BBQ sauce the client was able to settle (well, except it is a TV show, so they did have to throw in a little more drama).

Helping people to express the fond memories of what used to be, or visualize a happy future that they hope to achieve, can help them move into the logical thought it takes to settle a mediation. That is, unless you really are mediating with a savage bear. In which case I would tell Kate to spear the bear with those 7″ Christian Loboutin heels and run, run, run as fast as she can.