MEDIATION – “IT AIN’T OVER ‘TIL IT’S OVER.”

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Mediations are like baseball games – no game clock. Both ball games and mediations have average lengths, median lengths and, sometimes, unusual lengths – very short or very long. In baseball, you just keep at it until someone wins because there is no plan B. A mediation, on the other hand, can end because there is a plan B, albeit one in which the winner is decided by a judge/jury and not by players putting runs on the score board, so to speak.

Negotiations require hard work and they take unpredictable lengths of time. And while there are aspects of “game” playing at work in every negotiation, mediations seldom benefit from a game clock. There may be time constraints embedded in the controversy itself but they are different than time constraints on the mediation caused by frustration, impatience, airline reservations or overbooked schedules.

Leave enough flexibility in your schedule so that you, the other side and the mediator have the time it takes to get the case resolved.

MEDIATION MONKEY BUSINESS

I think that helping people reason their way through emotionally fraught conflict is the core competency for a mediator. It is also the most challenging to master. Can I help a person think of a reason that makes sense to him and allows him to unclench his fist?  And can I provide that kind of help and remain true to the essential tenet of mediation – self-determination?

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In South Asia, monkeys are sometimes trapped by placing food in a secured vessel with a small opening. When a monkey slips his hand inside to grab the food, it soon discovers that its clenched fist is too large to pull out through the hole. The monkey will remain stuck clinging to the food until someone comes along and captures it. This “attachment trap” is a metaphor for a core Buddhist principle: by holding on to external sources of happiness, we prevent ourselves from being truly free.  (http://rubinmuseum.org/blog/inside-brainwave-2015).

The attachment trap that plagues the monkey is the same problem we struggle with when we try to resolve difficult conflicts. In spite of our evolutionary advantages, we nevertheless keep our fists clenched, holding onto positions that keep us captive – unable to identify and advance our self-interest.

Compared to the monkey, however, we are capable of a greater ability to reason – to take into account competing interests, assess risk and distinguish fact from fiction. It is not easy but with time, energy and the help of a skillful mediator, even seemingly intractable controversies can be resolved.

Mediation Impasse - the death of hope?

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Impasse, a predicament offering no obvious escape, is imbedded in the vocabulary of mediation and understood by many as the death of hope. But who believes that every controversy can be settled in an afternoon? In fact, mediations are often the first time that everyone actually understands the problem and the obstacles to resolving it.

Mediation is widely viewed as a one-off, a do or die sprint. The case settles at mediation or it doesn’t and, if it doesn’t, mediation is said to have failed, to have ended in an impasse. Is there a more efficient and economical way to deal with a claim that cannot be settled at an initial mediation than to declare an impasse and return it to the court’s docket? 

The obstacles to settlement cannot always be overcome in three hours. All too often, the parties wind up frustrated because critical information is missing. There is also the matter of emotions, which animate the way people behave and which take time to change. People frequently react to all of this by throwing in the towel and reverting to fighting. They fail to create a plan for dealing with the issues that kept them from a settlement then and there.

Mediations end in impasse for a reason (or reasons.) Consider making a list of the issues that have been resolved and another list of the issues that have eluded resolution. The second list is often surprisingly short and can form the framework for gathering the additional information necessary to push the negotiations forward. Then make a written commitment to meet again after a reasonable period of time and have another go at it. 

 

 

Why Would You Mediate with the Wizard of Oz?

The Wizard in the Wizard of Oz was a well-meaning con artist, a frustrated carnival magician from Kansas. He hid behind a curtain and used special effects to manipulate others to do his bidding. His power over Dorothy derived from his remoteness and her imagination.  Until Toto intervened and pulled back the curtain, he exerted control over her and everyone else in Oz. Once he was revealed, his advantage disappeared and he was left to deal with Dorothy on a level playing field. 

So why would anyone agree to participate in a mediation with a decision maker (Wizard) hidden inside a telephone? Resolving the kinds of conflict that you deal with is not easy. Negotiating is an exercise in persuasion that involves communicating facts and feelings and requires all your senses. As someone said, it’s my brain communicating with your brain and lots can go wrong in the distance that separates us. And this pertains not just to the people sitting in the room with the mediator. The decision maker on the phone is also at a big disadvantage. His information is filtered and shaped, albeit with the best of intentions, but it is a poor substitute for firsthand experience. And, just for fun, let’s imagine what that missing decision maker might be doing while you’re talking: reading/responding to/deleting emails; texting; working on another file; talking to someone else; watching CNN; and so forth. Not being in the same place at the same time dramatically diminishes the efficacy of mediation.

Everyone is interested in making high quality decisions when it comes to resolving important controversies. But decisions based only on what you’ve heard on the phone are a poor substitute for ones made sitting across the table.  Except in unusual circumstances, insist that all the stake holders sit with each other face to face and do the work needed to strike a deal.

MEDIATION AND THE THEORY OF EVERYTHING

First, let me emphasis that I am very skeptical that there exists a theory of everything, much less one that explains human conflict. And I do not believe that there is a single protocol that resolves conflict. Nevertheless, research has revealed recurring patterns in a wide range of human behaviors. Can these insights be used to help people resolve conflict within the system we broadly refer to as mediation?

In a recent essay, When seeing is deceiving, columnist Craig Silverman lead me to The Ravenous Brain, by the neuroscientist Daniel Bor, and these quotes:

Perhaps what distinguishes us humans from the rest of the animal kingdom is our ravenous desire to find structure in the information we pick up in the world. We cannot help actively searching for patterns – any hook in the data that will aid our performance and understanding.

One problematic corollary of this passion for patterns is that we are the most advanced species in how elaborately and extensively we can get things wrong. We often jump to conclusions – for instance, with astrology or religion. We are so keen to search for patterns, and so satisfied when we’ve found them, that we do not typically perform sufficient checks on our apparent insights. www.tampabay.com/...seeing-is-deceiving/2220248

I think these findings are critical to understanding the nature of any particular conflict. And is it not essential that a mediator understand (or at least have a working hypothesis for understanding) the conflict he is there to help resolve? This understanding may mitigate the mediator's urge to supply the parties with a solution but it begs the question how does a mediator apply these insights? What's a mediator to do with them? Are we educators? Isn't teaching a kind of coercion? Are we morally neutral and capable of removing the spectacles of tradition, prejudice, personal experience and dogma? Can we pretend to be Socrates and simply ask questions that will ultimately lead people to the truth? Or do we acknowledge that we all have an agenda, like it or not?

But is it really possible for such neutral communications to occur between men? Is not every human communication a conscious or unconscious impression of one temperament, attitude to life, scale of values, upon another? Are men ever so thoroughly insulated from each other, that the careful avoidance of more than the minimum degree of social intercourse will leave them unsullied, absolutely free to see truth and falsehood, good and evil, beauty and ugliness, with their own eyes? Is this not an absurd conception of individuals as creatures who can be kept pure from all social influence... even that is, without the new knowledge of human beings that we have acquired today, as the result of the labours of psychologists, sociologists, philosophers? Isaiah Berlin, Russian Thinkers, Penguin Classics ebook location 5306,

Unfortunately, these patent contradictions between the mediation vocabulary (neutrality, party self-determination, exploring options, etc.) and what is actually happening in the mediation business are hardly talked about and I think it is time for that to change.

WHAT'S A BRACKET?

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Bracketing is an old and simplistic negotiation gambit. It is used a lot and often with bad results. It has nothing to do with any of the real issues of liability or damages nor does it represent a rational process to determine a realistic settlement figure.  Even so, bracketing has a place in your negotiating tool box. If the parties have a mutual and in-depth understanding of the facts and the law, bracketing can bring the money issue to a head sooner than later. It can also encourage a reluctant but informed party to open with a reasoned offer.

Bracketing is essentially a “bid/ask” strategy and its success is almost entirely dependent on persuading the other side to open first with a reasonable proposal. Example: If a mediation begins with no money on the table and a plaintiff thinks that a reasonable settlement is $500,000, then a $1,000,000 “demand” against an offer of $0.00, will inevitably, no matter what anyone (including the mediator) says or does, result in a $500,000 message arriving in everyone’s inbox. And if this opening gambit fails, which it most often does, the cat is out of the bag, so to speak. You have given up a great deal of information (if you are serious about $500,000) with absolutely no promise of getting anything back for your candor. Moreover, you invite what some call double-bracketing, a strategy of responding to a bracket with a bracket but one that moves the mid-point away from yours. That number bears no relationship to anything other than it is a different mid-point.

There are many other effective, creative bargaining strategies that rely on reason and logic, while also acknowledging how people feel about the controversy. Resorting to bracketing because a negotiator is frustrated or impatient is not likely to result in a settlement. Patience and preparation remain the key to a successful negotiation.

As they say in the ad on TV, I know a thing or two because I’ve seen a thing or two. So let me help you make the most of your mediation.

GENDER DISCRIMINATION: MIND THE GAP

Most corporations have policies designed to deal with gender discrimination. This problem is toxic and has no upside. It can be deeply entrenched and there is often a gap between the handbook policy and the reality of the workplace. There is only one way to deal with gender discrimination -  eliminate the gap between what you say you do and what you do.

It will take time to assess the long-term effects (if there are any) that the fall of Bill O’Reilly (and Roger Ailes) will have on women’s struggle for equality and respect in the workplace. For now, there are several important facts about the O’Reilly/Ailes cases that are noteworthy.

First, their behavior harmed people who worked with or for them. Second, their behavior disrupted and damaged the corporation. Third, the decision makers at Fox chose to spend corporate money to settle law suits based on a calculation that valued O’Reilly/Ailes as profit centers above the corporation’s stated commitment to loyalty and fair dealing with its employees and its shareholders.

Many large corporations have the resources to do what Fox did: pay large sums for confidential settlements and attorney’s fees; engage in crisis management; campaign to repair the brand; work to restore lost or diminished employee loyalty and productivity. There are many more businesses without the resources to emulate Fox.

There is no shortage of robust policies to deal with allegations of sexual misconduct. However, they require principled action: prompt, impartial and confidential investigation and a willingness to follow the facts wherever they lead. Certainly, not every conflict between a woman and a man is gender discrimination. But if you do not conduct a thorough investigation and make a good faith decision based on the results, the O’Reilly/Ailes factor can infect your business, too.

DO MEDIATORS SETTLE CASES?

There is no shortage of advice and training for mediators; what is missing is a laboratory in which to examine whether any of it actually works to affect the outcome of a mediation. In other words, with whom do mediators dialogue to place themselves on a scale of effect?

Without that kind of insight, mediation is simply a talent show where the most engaging and entertaining mediators appear to be the best mediators with nothing empirical to support the belief. Whether they actually have an impact on any particular outcome is a speculation - is the mediator merely present during the mediation or is she actually influencing the outcome. And, of course, there is the question whether mediators are even supposed to influence the outcome of a negotiation they are mediating.

Take, for example, Florida's definition of a mediator: The mediator's role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be. Fla. Stat. Ch. 44.403(4)

It begs the question, if not prescribing what the resolution must be can the mediator suggest what the outcome ought to be? If so, what is the process that a mediator should follow to deduce such an outcome or outcomes? And what are the limits of a mediator's efforts to persuade the parties to follow his lead?

We hold these Truths...

 I will for the purpose of maintaining the causes confided to me such means as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law. Oath of Admission to The Florida Bar  https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/4F51651D215A82C085256ADB005D611F

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Imagine what the law business would be like if we woke up on a Monday morning and went to work in a “post-truth” world. The Oxford Dictionaries declared “post-truth” as its 2016 word of the year; a state “in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Travelling down this Alice-in-Wonderland rabbit hole is Gerard Baker’s recent editorial in the Wall Street Journal, Trump, ‘lies’ and Honest Journalism, in which he cautions “I’d be careful about using the word ‘lie.’ ‘Lie’ implies much more than just saying something that’s false. It implies a deliberate intent to mislead.” http://www.wsj.com/articles/trump-lies-and-honest-journalism-1483557700.

Fair enough. But here are a couple of dictionary definitions of a lie: an intentionally false statement; to make an untrue statement with intent to deceive; to create a false or misleading impression. The critical word here is “intention” which begs the question; Is it possible to “accurately know the values (or lack thereof) involved when a person speaks?” Probably not.

In his famous little book, On Bullshit, http://press.princeton.edu/titles/7929.htm, Harry Frankfurt makes an important distinction between bullshit and lying that I think is particularly pertinent:  Both the liar and the bullshitter try to get away with something. But ‘lying’ is perceived to be a conscious act of deception, whereas ‘bullshitting’ is unconnected to a concern for truth. Frankfurt regards this ‘indifference to how things really are’, as the essence of bullshit. Furthermore, a lie is necessarily false, but bullshit is not – bullshit may happen to be correct or incorrect. The crux of the matter is that bullshitters hide their lack of commitment to truth. Since bullshitters ignore truth instead of acknowledging and subverting it, bullshit is a greater enemy of truth than lies.

There is, however, no real distinction between a lie and bullshit when it comes to the form or meaning of what is actually said. When a person rejects the very idea of being true to facts and turns, instead, to an ideal based on what they assert to be a sincere belief in their own substantial and determinate nature, then, according to Frankfurt, this sincerity is also bullshit. https://philosophynow.org/issues/53/On_Bullshit_by_Harry_Frankfurt

 “Why don’t you believe him? Why isn’t it taken at face value?” Conway said in exasperation. “You can’t give him the benefit of the doubt on this and he’s telling you what was in his heart? You want to go with what’s come out of his mouth rather than what’s in his heart.” https://twitter.com/NewDay/status/818444732934201344

FIRST YOU WIN THE ARGUMENT…

In this recent political season, it was a binary world with only 2 outcomes – winning or losing. You didn’t find First you win the argument, then you win the vote on a bumper sticker.

Likewise, many people lack a personal philosophy that is grounded in negotiation and compromise – in Getting to Yes. They see every conflict as a zero-sum game. Too many clients are angry and cynical with unrealistic expectations of their lawyer and the legal system. They are ready to blame others for their own unfortunate circumstances. A sense of accomplishment can be elusive for a lawyer.

But there is a bright side to all of this gloom. Trials, which allow only win-lose outcomes, are slowly being supplanted by structured negotiations with judicial oversight. Lawyers seem to me to be getting better at negotiating. Negotiating a deal that ends a challenging and expensive controversy can provide a level of satisfaction and accomplishment that far exceeds winning the jury or judge lottery.

Fierce litigators, long at the top of the lawyer food chain (and grist for bad lawyer jokes), are slowly being replaced by successful negotiators who can craft outcomes grounded in reality. I for one, am optimistic that in time, things will get better.

Why and What Should We Want to Know About Mediation

I think that the field of mediation lacks a serious commitment to any systematic study and rigorous evaluation of what mediators do when they mediate. There is no data to support an assertion that any particular strategy or behavior engaged in by a mediator has any effect on the behavior of the participants or the outcome of their negotiation. Moreover, I am unaware of any set-pieces, akin to plays on a football field, that mediators use again and again that have been tested to determine if they correlate, much less cause, any particular behavior or outcome.

What there is in abundance is a literature filled with stories told by mediators who claim to have found the truth when what they really want is recognition or to gain a competitive advantage in the marketplace; likewise, with workshops and seminars that infer that something a mediator does (or should do) actually causes people to behave differently while participating in a mediation.

We need not stay stuck in this dark cave. A huge volume of mediations happens everyday. These sessions offer sociologists, psychologists, legal scholars and academics and others a laboratory to observe and study mediators’ actions while they work with real people involved in real conflicts.

Mediation confidentiality serves an important purpose but it need not be an iron current. All that typically emerges from a mediation is a written agreement. Lost is the opportunity to work out the conditions under which a particular strategy might actually work and the inferences that might reasonably be reasonably drawn from that analysis. Also lost is the opportunity to examine the inferences people actually have drawn from it under different conditions, what they thought it implied and what it inspired them to do. This process can reveal intriguing intellectual and practical possibilities that mediators might otherwise overlook. Researchers routinely observe, study and gather intimate information from people while successfully guarding their privacy.

The judicial system has a vested interest in understanding and improving the efficacy of the mediation process, inasmuch as judges compel people to participate and pay for it. I think that a carefully drawn provision carving out an exception to confidentiality that allows for the scientific/academic study of mediation would be a great benefit for both mediators and those who participate in the process.

I, for or one, would like to know if what I do really works or not and why.

IT’S DEBATABLE

For those of us employed in the law business, knowing how to argue is an essential skill that is often in short supply. That fact can make a lawyer’s life miserable, both in practicing without adequate skills or dealing with someone else lacking those skills.  “How to argue is something people are taught. You learn it by watching other people, at the breakfast table, or in school, or on TV, or, lately, online. It’s something you can get better at, with practice, or worse at, by imitating people who do it badly.  More formal debate [for instance, presenting reasoned argument to a judge or jury] follows established rules and standards of evidence.” “Debating, like voting, is a way for people to disagree without hitting one another or going to war; it’s the key to every institution that makes civic life possible, from courts to legislatures. Without debate there can be no self-government.” (Lepore, The State of Debate 2016)

It's debatable

It's debatable

On September 26, the first Presidential debate of this election will take place. It won’t be a debate in the sense that the delegates to the Constitutional Convention debated the terms of our Constitution in 1787 or that Lincoln debated Douglas in 1858. It won’t much resemble the Kennedy-Nixon debate that took place 56 years ago. It will follow a format that defies meaningful discourse; questions posed by Lester Holt, despite his best efforts, will reveal little information that can serve as the basis for thoughtfully choosing one candidate’s policies and leadership skills over the other. The debates are, as Walter Cronkite said, “…part of the unconscionable fraud that our political campaigns have become” and they should be a source of deep concern for voters who support our form of government.

 

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Screwed at Mediation...or Not!

I know that many lawyers prepare their clients for mediation by telling them that a good outcome will be one that leaves everyone feeling screwed, in an even-handed sort of way.

I think that there is a better way to help define a successful mediation; We will do the best we can under the circumstances, the circumstances being the facts, the law and available resources. Resources include the time, money and the emotional energy a person is willing to expend to gain any particular result.

This simple formulation acknowledges the importance of how people feel about the controversy - angry, sad, disappointed… and provides a useful context in which they can make sense of how they feel about the outcome.

Facts, alternative facts and mediation

At the beginning of every mediation, I urge the participants to talk to each other about the facts they have relied on in creating their “picture” of the case. I caution them that it is not an invitation to have a debate because debates have winners and losers. Instead, the conversation is designed to create an understanding of the other guy’s point of view. I tell them that the process will reveal to them not only the structural differences but the facts that overlap. It will also reveal the emotional forces that influenced them while they were creating their “picture.” Rather than arguing about who has the prettier picture, they can acknowledge that they have feelings about their differences. The process allows that we all have feelings about facts. With all the parts of their controversy out of the dark and into the light (facts and feelings), they can begin work on an outcome “with benefits.” It is an efficient process that has the best chance of yielding a reasoned and rational outcome; in other words, an outcome that makes sense to them.

The current controversy about facts and “alternative” facts is deeply troubling to me. A reasoned search for the truth is the core of our judicial system. That search is often a profoundly difficult task. I have learned from experience and from study that resolving conflict is one of the greatest challenges any of us confront in life. Without conflict resolution processes and skills that rely on facts, our freedom is at risk.

 

It's a buyers market...

It’s a buyer’s market in mediation. There are thousands of mediators and that number is growing rapidly. The screening process available to you to select a mediator is based almost exclusively on personal experience, word of mouth and website information. There is no Angie’s List.

You use mediation as a method to advance the interests of your clients. Your clients, in turn, evaluate you on the quality of your work and the wisdom of your advice. You want your client to think that the time and expense of the mediation were resources well spent, even if the case doesn’t settle, so selecting an effective mediator is important.

You expect the mediator to employ a variety of skills so that the negotiated outcome resolves the dispute and makes sense to your client. So go beyond settled/not settled in your vetting process; here are three characteristics of an effective mediator worth looking for:

Curious – It’s the difference between claiming to have all the answers and having the right questions. Curiosity leads to revealing new paths and overlooked or under-appreciated opportunities.

Patient – It takes time for people to change the way they feel and to reason their way through problems. Forced decisions encourage the use of shortcuts (heuristics) that often lead to bad decisions and impasse.

Mindful of bias – A biased mediator can undermine the entire process. And a mediator unskilled at dealing with the biases of others, either explicit or implicit, is unlikely to be of any real help. Even worse is the mediator who hasn’t invested the time and energy necessary to acknowledge and deal with their own biases.

Don’t hesitate to call me in advance of selecting your mediator. I would be happy to talk to you (and opposing counsel) to discuss your best path forward.