Archives for category: Reflections

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.


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.

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.

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.

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.

There is clearly a lot of ruckus around this show right now.
I propose that this ruckus is a “win/win” (to quote Kate Reed).

1) This show has sparked a few debates in the mediation world: “Fairly Legal is a perversion of the truth!”, “‘Fairly Legal??’ The double-entendre of the name alone is enough to make people think mediation is a laughing stock!”, and my favorite “With mediators portrayed like Kate Reed, clients will be expecting mediators to look and act like Kate Reed.”
I’m putting aside for a second whether these concerns have merit or not. Instead I would like to point out that this show has rallied mediators more than anything else I have seen in a while. The chat rooms are chipper. The discussions are dynamic. And more: mediators are mobilized. Mediators that I haven’t heard from in years are chiming in to defend or criticize the show, some out of serious concern and some to join in the fun of the conversation. Multiple spin-off conversations are now taking place about if mediators should be evaluative or facilitative, are we a field or a profession, should mediators be paid by the courts or by clients? These are excellent, invaluable discussions that have been a long time coming. Mediators are coming out of the woodwork to defend and promote their profession. And in a field where most of the practitioners spend much of their day being isolated from other practitioners, I would say this is unequivocally a WIN!

Kate Reed’s fee from the California Courts: $150 per hour.
Kate Reed’s shoes: $1,998
Rallying mediators: Priceless

2) I am going to propose a second side effect of this show that is a WIN. (I had to have a second because I promised you in the title that this show was a “Win/Win”. After all, “Win/ Nothing” doesn’t have quite the same effect.)
So the second WIN is the promotion of conflict resolution. This will be a little pollyanna-ish for a moment, but I would venture that many mediators entered the promotion with a desire for peace. A sincere hope that conflicts could be resolved in a peaceable, productive way. Well, the more people who know that mediation is a possibility, the more people who will pursue mediation. The more people who pursue mediation, then the more people who will resolve conflicts effectively, right? The more effectively resolved conflicts, the more peace in the world, right? I have watched enough Miss America pageants to know that everyone’s ultimate goal is world peace, so I am proudly saying that this show will lead to more peace which means: WIN!

Thanks Steve Abel for pointing this out!

Funny link on the Fairly Legal website with a test to determine: Do you have what it takes to be a mediator?

First–if you’re a mediator–you know that most people think the mediation profession is a misspelled form of meditation.  Simply put: the average TV watcher is just not that familiar with what mediation is.

Most common response when I tell people I’m a mediator (after their eyes have glazed over): “So, you like do community service for the courts?”

Unfortunately, that’s not far from the truth.  Except for the roughly 2% that make a living as a mediator, everyone else has a day job which is occasionally supplemented by a mediation.  Or the desire to bring peace to the world is satisfied by mediating a few days a month at a local community mediation center, while the desire to pay the mortgage is satisfied by working in HR at some local company.

Bottom line: people don’t know what mediation is and so they don’t know what great benefits they could get by hiring a mediator. So mediators are in effect doing community service for the courts, instead of using their incredible talents as their full-time job.

Second, Sarah Shahi is hot.  I mean, seriously, she was a Dallas Cowboys Cheerleader.  She is going to do a much better job attracting interest to the field than I ever could.  Mediation is still a misunderstood field where most people think mediators chant during the meetings and wear tie-dye.  And don’t get me wrong–I do love tie-dye.  But I also like that USA is bringing an element of professionalism, intelligence, and a little je ne sais quoi to the field of mediation.

The main thing to remember is: a show like Fairly Legal brings the word “mediation” up in conversation. It brings the word “mediation” up in Google searches.  And when the next argument gets out of hand, I pray that it brings the word “hire” up to a local mediator.

This blog contains my quick thoughts on the new mediation show on USA–Fairly Legal.

Full cast and show information available here:
Clare Fowler
Workplace Mediator and
Director of Organizational Relations