I can’t tell you how many times people have told me that they are thinking about adding mediation to their existing career because

“I already mediate all the time, anyway.”

This is such a common phrase that I have started to pay attention to the types of people who say it. Predominantly, I head this phrase from social workers and from parents. I believe this is because mediation is so effective because it uses tools that are intuitive.  Active listening, fairness, guiding people to an agreeable solution. These are skills that many people use in their jobs daily.

For those people who feel naturally gifted at these skills then I highly encourage them to continue to study mediation, train, practice, and eventually begin mediating cases.

Eventually.

One thing that I have noticed from watching Fairly Legal is that Kate Reed is so effective at her job, not just because the skills come naturally to her, but also because she is very comfortable with the process.  She doesn’t have to waste time thinking about when to consult an expert, what constitutes as legal advice, what is a break of confidentiality, what is an enforceable agreement, and what are the parties real interests. This shows me that she has years of training and practice which, combined with her natural skills, have created a very effective (albeit slightly wacky) mediator.

People tell me, “Since I mediate between my teenagers all the time anyway, I decided to open a practice and get paid for it.”  This is a cute saying, but I wonder if they really understand the amount of work that it takes to be effective.  Do they understand the amount of time it takes to be comfortable with these skills?  The amount of training and studying until the knowledge become instinctual?  Do they have any idea the amount of marketing and networking it will take them to be successful?  And do they have any idea how much bravery and restraint it will take to confront difficult clients and to withhold their own desires for a case?

These are skills that people can learn. But thinking that just anyone can step out one day and be a mediator slightly belittles those who have spent years working towards it.

I have never heard anyone say, “Since I spend all day chopping vegetables, I was thinking I might as well be a surgeon and get paid for it.”  Or ” I love to look at clouds in the sky, so I think tomorrow I will be a commercial pilot.” Of course not!  Because everyone knows that it will take training and practice.

I think broadening that knowledge to the mediation field will help clients know that seasoned mediators are very effective and often a great alternative to the courtroom, and it will also help rookie mediators know what to expect.

Advertisements

A friend posted a picture recently about one of the most ingenious products I have ever seen: A Fish ‘n Flush.

Fisn n Flush Toilet

 

The Fish ‘n Flush is a toilet, yes, a toilet.  There is a minuscule tank in the back for the flushing, surrounded by a beautiful fish tank. Some toilet engineers one night, looking for a creative way to save water, decided to minimize the flushing tank and fill up the rest of the space with a fish tank. Their idea sky-rocketed. They have appeared all over talk shows, magazine ads, and house designing shows.

It is gorgeous. It is inventive. It is mediation.

Conflict, like, well, like the whole business of a toilet, is seen as ugly. Something you want to hide. You don’t want other people to know about or pay attention to. It might be something that happens to other people, but not you.

But then mediators come in and help clients to transform that ugly ole embarrassing conflict into something creative, helpful, and beautiful. Like putting a fish tank on a toilet.

This concept: turning ugly into beautiful, mourning into dancing, toilet into fish tank, is something that Fairly Legal has mastered. The show Fairly Legal has a kooky mediator, Kate Reed, go into ugly difficult conflicts. Through a variety of creative tactics, she takes this embarrassing conflict and turns it into something beautiful.

Sometimes it’s important to forget the process, forget the confidentiality concerns, forget the certification questions, and remember our true calling: Turn a Toilet into a Fish Tank.

Judges and court-appointed mediators have an interesting relationship.  “Interesting” can be defined as big brother, incestuous, or a match made in heaven.

In an ideal world, a judge reviews the cases on her daily docket, and suggests/refers/mandates appropriate cases to her court-appointed mediator. In this ideal world, many of the cases would calmly settle.  Some cases would return to the courtroom, without a settlement, but with a better understanding of the other party and the options available. 

That’s the ideal world.  And then there’s Kate Reed’s world. 

In Kate’s world, the judge hands her a case. The judge threatens her to settle the case.  The judge also tells her how he would like the settlement to play out. And in the middle of a case, the judge checks-in with the mediator, calmly pilfering sensitive and confidential information. 

In the California Supreme Court, there is currently a bill in play that will change the confidentiality of information discovered in mediation.  While it is hoped that everyone is on the same page for protecting a mediator and a client’s confidentiality, it is still worthwhile to check our assumptions and our goals. 

I welcome further discussion on this topic–especially from those involved in drafting and reviewing the bill.  It seems to me that our goal is somewhere between Kate’s world of a big brother judge and stark silence from the bench.  I believe our goal for confidentiality is to: 

1) enable the mediator to have sufficient information before the case to have enough facts to help the clients

2) allow the clients freedom to explore options during the mediation without being afraid that the brainstorming will haunt them during trial

3) allow the mediator protection from judicial pressuring

4) allow the mediator protection from testifying against herself or her clients. 

What other confidentiality exceptions or privileges do we expect?  And in designing our own ideal world, what do we hope for?

Every field has its share of embarrassment.

The pilot who has a drink before getting on the plane.  The surgeon who mistook the left foot for the right. The teacher who found her high-school student just too stinkin’ cute to pass up.

The mediation field has been lucky to skate by with relatively few catastrophic embarrassments (known on wood). There are a few upset clients here and there who might say that they thought their mediator was biased, or a mediator who pushed too hard on the clients, or who didn’t push hard enough.  But thankfully, that I know of, we haven’t seen a primetime mediator meltdown.

A recent episode of Fairly Legal raised the question of best mediation practices. Kate Reed, the main mediator on the show, has been going through some life tragedies.  Her husband cheated, a nasty divorce, death of her father, workplace conflict, and then her houseboat explodes–rendering her homeless.

Through some of these difficulties, most of us would say, “It’s been a rough day, but I can still be helpful to my clients.”  But there has to be a certain point where we as mediators draw the line.  Think about how different the headlines would be if every pilot who was too exhausted to fly said, “Sorry, I’ve got to ask for a substitute so I can get a nap.”  Or if every overworked surgeon said, “I’m flustered and not thinking straight.  Can I get some help in here?”

Unfortunately, the opposite is often true.  As workers, we have adopted the Post Office semi-official creed:

Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds.

Is it because we see ourselves as so necessary to our clients that we don’t allow ourselves a sick-day?  Or is it because we are so desperate to establish a mediation practice that we are afraid to miss one mediation session?  Or is it simply because we value showing up more than we value the peace that we bring to the table?

99.9% of the mediations I have attended, observed, or co-mediated have been powerful and impactful, both for me and the clients.  I can think of a rare few, however, where the mediator would have been wise to say, “I am so sorry, but today I’m afraid I would do more harm than good.”  For instance, one of my favorite mentors who was an incredibly effective mediator, had her home broken into the night before.  She was up most of the night with the police, cleaning, and trying to determine what was taken. During the mediation, while one party was telling her very difficult and very long story, my co-mediator fell asleep.  I tried to nudge her and kick her under the table.  Eventually her own snoring woke her up.  Upon waking, she apologized profusely, explained what had happened, and we rescheduled.

One other time, I saw a fellow mediator show up to a mediation shortly after finding out her father had died.  She said that working was therapeutic to her and helped to keep her mind off of her sadness, but shortly into the mediation she realized that she couldn’t be there.

I believe that as mediators we have a different set of requirements than other fields for showing up to work.  First off, we have to be physically present, of course.  Meaning that we have to have made arrangements in our life so that we have enough flexibility in our schedule to accommodate the needs of our clients.  Second, we have to be mentally present.  Meaning that we are able to follow, analyze, and advise our clients.  But there is a third requirement that sets us apart from many other fields–and it is often the most difficult.  In addition to being mentally present we must also be mentally “peaceful.”  Of course, we all have real life stressors that occasionally tug at our thoughts.  I am not suggesting that in order to mediate we all must meditate in Tibet for three hours a day.  But I am saying that we must be at a place where we can realistically help out our clients.  If we are exhausted, stressed, furious, or grieving, then I believe it is our duty to examine if we need to request a replacement, a co-mediator, or a reschedule.

Is this difficult and slightly embarrassing?  Of course.  But perhaps it is better for you, for your clients, and for the field as a whole to reschedule than to be the first primetime mediator meltdown.

I just watched the Season Premier of Fairly Legal and was caught off-guard by the demeanor of Kate, the mediator and main character. She was pushy, she was adversarial, and she was condescending.

Mind you, she also got her clients a great deal.

But is it our job as mediators to win-win at all costs? Or to win-win, if that is the best thing for everyone, and if it helps them to be better in the long run.

There were multiple scenarios in the season premier where Kate fought hard for the money for her clients.  But her aggressive personality left so many people feeling windswept that they were not satisfied with the outcome.  Yes, on paper, both clients won.  One side got an apology; the other side got a fair settlement.  But they did not reach the settlement on their own.  So neither side was able to feel the satisfaction of arriving at a fair settlement.  Emotionally they were pushed to a satisfaction instead of having time to realize what it was they really wanted.

As mediators I prefer to bring peace to people from a place of peace.  If I am anxious, tense, trying to prove something, or slaying my own dragons, I am not best serving my client.  When these emotions arise, I feel it is best to call it a day, give everyone a chance to think, and plan on speaking again the following day. The agreement will look the same, but the clients will be at peace.  Making it a win, win, and a deep contented sigh.

Fairly Legal is currently advertising the renewal of its second season. Meaning there are photoshopped pictures of Kate Reed appearing everywhere. 

It also means that mediators across the county are united in a common conversation.  “Is Fairly Legal productive?  effective?” “Is it helping our image with our clients?”  There are good arguments for both sides of these questions.

But what’s more interesting is that mediators are having these conversations.  In a very isolated profession, mediators rarely get to interact over a common topic.  We are occasionally able to join together in a conference, celebrate an author’s recent publishing, or mourn a mentor’s passing.  But rarely do we get to have a continued discussion over something in the country that binds us all together. 

Fairly Legal has its good sides and its bad sides, that is true.  One of the good sides is that we are making connections with other people in our field.  I am receiving emails from people all across the country, reminding me to watch the show, asking my opinion on it, and asking how we can advertise it.  It is wonderful to see so many mediators interested in the same topic.  

Fairly Legal may at times misrepresent our profession, but one thing is certain: Fairly Legal Unites!

 

 

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

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!”

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.

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.