Archives for category: Mediation Field

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.



Well, hold your breath no longer, folks.  The announcement has been made.

The USA show Fairly Legal will be  . . . returning!

That’s right, May 3, 2011 USA announced that it will be renewing its new hit show Fairly Legal for a second season.  The show was the top new series of the year among 25-54 year olds, averaging 4.6 million viewers.  Those 4.6 million viewers will need to be a little patient, however, as the 13 new shows will not be aired until the first quarter of 2012.

USA did announce that the show will undergo considerable content changes.  Sarah Shahi reports that she does not believe those changes will affect her character’s personality.  So, could it be?  Might USA change its tone a bit and make some of those mediation scenes, dare I say it, realistic?

The characters are quirky, and they can be a little funny and enjoyable to watch.  Some of the plot lines aren’t that bad either.  I do hope that USA keeps those elements.  I just hope that the changes they make will be too make the mediation scenes a bit more ethical.  Have the mediator uphold her clients’ confidence.

Tongue-in-cheek, USA Co-President Chris McCumber stated, “The show offers a fresh twist on the genre audiences love. There was no conflict in our decision to bring it back!”

For all of her flaws and, well, y’know, illegal activities, there is something endearing about her. She is optimistic.  It is unusual. It is refreshing. And it is something that we could all probably use a little more of.

I spent hours yesterday at the pharmacy getting antibiotics for my sick daughter.  They lost the prescription. They couldn’t read the doctor’s handwriting.  They spelled her name wrong.  Hours went by.  I was so frustrated at their incompetence. Stupidity. Unprofessionalism.  IrritatingannoyingTimewastingIdon’tlikeyou.  Well, after a few hours and finally getting my prescription, a little more truth comes out.  First, this pharmacy operates on one of the lowest budgets in the city.  Less money = less help.  Second, the doctor did send over a badly written prescription where my daughter’s name was practically illegible.  Third, I knew this pharmacy took longer and chose to send my prescription there anyway.  Fourth, they did make a couple of stupid mistakes.

Now it’s the next morning and with a little perspective I can see what really happened:  everyone tried to do their best and made a few mistakes along the way.  We can never see that in the moment.  Our clients can certainly never see that in the middle of a mediation.  And as mediators we can rarely see that until the end of the mediation.

A dear friend and incredible mediator, Larry Sullivan, told me once that as he walked his daughter down the aisle, he remembered that inside she was still a little girl dressed up like a princess, spinning on a hillside. The groom was still a little boy, fascinated by the sound his blocks made when they fell to the ground.

I try to hold on to these two images in my mediations.  We villainize parties so easily.  We believe the stories told about them and we see the anger coming out of them, and mistakenly assume the anger coming out of this person represents them.  But it doesn’t.  The anger and the pain and the hurt and the revenge all represent frustration at not being seen as the good person that is really inside.

I can honestly say I have not mediated one single case where one party is completely innocent.  But I can also honestly say that every party in every case I have mediated was a good person, with a couple of mistakes along the way.

The next time you are mediating, or waiting at the pharmacy, remember this Kate Reedism:  All people are Innocent Until Proven Good.

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.

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.

~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

~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.

Try adding this tool to your toolbox: let parties figure it out on their own.

My daughter is learning addition in school, and she continuously asks me, “What’s 2+2? 14 + 23?  109 + 5?”  And when I’m busy or tired, I take the easy way out: I tell her the answer 109 + 5 = 114. At which point she stares at me with a blank look while her mind decides if I’m telling the truth. After a pause, she cocks her head to the side and says, “Really?” At which point I always suppress a laugh because I’m not sure if she thinks I’m lying or dumb.

When I’m at the top of my game, we walk over to the whiteboard and I show her to make columns and lines and where to put the plus sign.  I show her how to line it up with 109 on top and 5 on the bottom. Then we put everything in its proper place. Once we have gone through the process of figuring out where everything should go, I step back and let her figure it out. She looks at it for a second, sticks out her tongue the way she always has when she thinks hard, and then turns around and screams, “114! It’s 114!”

It wasn’t any more or less true when I told her it was 114, but she didn’t completely accept it. When a judge tells two parties to split the difference it doesn’t make the judgment any more or less true, but the parties don’t completely accept it. In the back of their mind, they continuously think that they could have done things differently or gotten more. If instead, two parties sit down at a table and negotiate, they rationalize to themselves why they are comprising certain things, they are able to watch the other party compromise other things, and then they arrive at an agreement where they split the difference. It is the same settlement that the judge forced upon them, but now both parties accept it. They have invested in to the process, they are proud of their behavior, and they watched the other party concede. All of these elements are necessary for an agreement to work.

In the Fairly Legal episode where Kate Reed helps a couple reach a settlement after the husband has been hit by a bus, her most stunning moment was when she let go. She had went through the process of figuring out what the pieces were, what their importance was, what went on top and what stayed at the bottom, she got everything lined up, and at the crucial moment where the couple decides to settle and/or separate she steps away.

Our jobs as mediators is never to tell people the answer. That is the job of someone who has a long black robe and a gavel. Our job is to figure out what the pieces are and help the parties to line them up properly, and then once everything is clear let the parties finish it. If we tell our parties what to do, there will always be a little resistance. Why? Nobody likes to be told what to do! No matter how scared or confused or powerless a party might feel, no matter how much it looks like they are begging you for an answer, if you tell them what to do they will resent you for it. Instead, find out the parties’ interests, empower the powerless, validate feelings, and move them to a place where they both realize clearly what to do, the lightbulb goes off, and they turn to you excitedly and scream, “114! The answer is 114!”


There are three main types of mediation styles:
  1. Evaluative Mediation: A mediator focuses on the legal rights of the parties and the strengths of their cases. The mediator discusses the weakness of the parties’ BATNAs (Best Alternative To a Negotiated Agreement) and convinces the parties to settle. More often used with lawyers who are more familiar with the court process, time, and expense. Evaluative = Pushy
  2. Facilitative Mediation: A mediator helps parties find their underlying interests and tests the strengths of their option. Facilitative mediators help parties reach agreement on their own. Facilitative = Hand-holding
  3. Transformative Mediation: A mediator helps parties discover their own interests in the mediation, and then repair their relationship for future interactions. Transformative = Touchy-Feely

Kate is an evaluative mediator. Evaluative squared. An evaluative mediator gets her power from providing opinions and suggestions on the case. Some clients find these suggestions helpful, some find them to be unwelcome. Some mediators see evaluative mediation as offering wisdom, some see it as the antithesis of mediation.

According to Paul Fisher, “Mediation is a process in which a neutral, called a mediator, assists the parties in exploring issues in the case. The mediator facilitates discussion between counsel and parties, and guides the parties toward finding their own solutions to the dispute.”  This definition holds true for facilitative and transformative mediation. But is it true for an evaluative mediator?  A traditional evaluative mediator still helps the clients find their own solutions to their dispute, but skillfully asks questions and suggests options to help the clients select the best solution.

Kate Reed has developed a new type of mediation that goes beyond Evaluative Mediation; I would venture to call her style Coercive Mediation.  Coercive Mediation would fall somewhere between Evaluative Mediation and a Judicial Ruling.  In the episode with the sports case, Kate has already determined that the doesn’t like the coach. She calls him, “Moron.” She tells him, “You didn’t like Riley.”  In other words, far from being neutral, Kate has already judged the coach. While she spouts things like, “In mediation, both sides need to be heard,” she is not practicing what she preaches. If both sides were being heard fairly, then Kate would refrain from judging.  She would refrain from insulting her clients. She would respect both of her clients.

It might not be as dramatic, but I sincerely believe that clients will open up just as much when they are respected as they will when they are bullied.  Evaluative/coercive mediators (like Kate in this episode) get their power from driving fear into their clients about what will happen if they don’t settle. Sometimes, yes, this might be the only tool in your toolbox that works. But shouldn’t this be the last resort?  I posit that mediators should actually have a different technique. I posit that mediators get their power from instilling hope in their clients about what will happen if they do settle.

Thank you, Katina Foster, for your overview of the styles.

I was just visiting the Fairly Legal website.  I saw a game where you submit your problem and Kate Reed will answer it for you.  Scoffing at what a mockery she is making of our profession, crying at what a travesty this was that she can minimize my job into an online game, I did what anyone else would do in my situation: I submitted a question.  And, dangitall, she had a good response: confront the other person directly, humbly, tell them how it made you feel, and see if you can work out a solution.

This was actually sort of a good answer.

As much as I want to ridicule this Insta-Mediation approach, I have to admit it kind of makes sense.  I think the world of mediation is beginning to change a bit to reflect the consumer’s desires.  When I go to fix any other problem, like to pay a bill online, I want to be able to have instantaneous answers and quick-fixes.  I expect instant.  I expect convenience.  I expect online.  I think the world of mediation needs to begin incorporating some online, convenient tools in the ever-expanding mediator toolbox.

For instance, in one of my current cases, only half of the actual mediation takes place face-to-face.  The other half takes place on the phone, via email, and via (dare I admit this?) texting. It’s true. I want to be helpful to my clients, and when they are ready to compromise a bit, I want to be accessible to honor that. So my clients can text me on a Saturday afternoon and say, “Maybe I actually don’t need the entire amount if it means w8ing longer. I think I’m ready 2 give up 25% if we could settle this today and be done with it.”  What do I say? Gr8!

If it is a more complex problem (like, ach! I forgot to pay my bill and I’m late, please process this immediately and can you pretty please reverse the late fee?), then I want to speak to an actual person.  In other words, much of the value of mediation is still face-to-face, reading non-verbal cues, and reacting to that body language.

But as mediators, if we deny what our clients are asking for, and force them into a box where everything has to take place in a mediation conference room, are we helping?  or have we become our own obstacle to a successful mediation?

My husband was just watching the second episode of Fairly Legal. Halfway through he says, “I get that this is TV and they need drama and writings, but it just isn’t realistic. I mean, what person would actually care enough to chase a client all around the city?”

At first, I agreed with him. What mediator would go out of her way for a case?

Then I realized: I do.

This weekend, I’m taking my Saturday to drive across the city to meet with one of my clients at a track meet so I can understand what he and his family are going through in a coaching dispute.

I’ve mediated a dispute between two landscapers at a dump.

I’ve mediated at a bonfire in Hawaii.  In a kitchen grinding cornmeal in Mexico. In my front yard when my daughter and her friends had a dispute over who got to wear the princess dress (hmm, speaking of, I don’t think I ever got paid for that case–I’ll have to send her an invoice).

I realized that I have had some very untraditional ways of resolving cases, and I can think of many even more creative resolution stories from other mediators. I began telling my husband about some of these instances. “Why?” he asked. “It’s just a job.”

But it’s not.  I could take any job.  I do this because I want to help. I would much rather do something “out of the box” if I feel that it will help. I could be a lawyer if I wanted justice. I could be a painter if I wanted to be creative. I would be a politician if I wanted power. I mediate because I love people.