Archives for category: Positives

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:

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.

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!”


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.

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.