Mediation: Engine of Enlightenment?

Mediation is a conflict resolution tool, a process that can be used by conflicting parties to solve a problem or settle a dispute.

By virtue of mediation’s simplicity and its fundamental requirement that the parties discuss the conflict with each other in an informal, unrestricted way, it is a process which offers an opportunity for each side to gain insight and awareness of the other’s life experience, perspectives, and values.  During a mediation, the opposing parties are much more likely to hear what their opponent’s want in terms of solving their dispute and develop a better understanding of the other’s needs.

As discussed in this excellent blog post on the Relevant Development blog, Mediation As A Tool For Democracy http://relevantdevelopment.wordpress.com/2014/02/09/mediation-as-a-tool-for-democracy/, the author explores the notion that mediation in developing countries might not only be helpful as a conflict resolution tool, but may also lead to the development of more democratic interactions.  As the author points out, mediation is informal and cheap.  Thus, it can be made available to virtually anyone.  Moreover, mediation gives a each party an opportunity to be heard by the other and is a tool that could give those who might not have access to the Courts an opportunity to confront more powerful opponents.  As the author thoughtfully notes, the flexibility and informality of mediation provides a way of bringing sophisticated dispute resolution techniques to situations that might otherwise only be resolved by violence or oppression.

When parties to a conflict go to mediation, they have a chance to better understand and learn about their opponent.  Unlike a court case, where each side communicates information which supports and advocates their respective positions, mediation encourages a broader, solution-minded dialog.  Such discourse can turn into better, more strategic understanding between the parties.  When opponents understand each other, it is more likely they will interact in a more constructive and peaceful fashion.

Mediation = Control

Often, especially in legal matters, parties in conflict see taking their case to mediation as signifying weakness or fear.  Since lawsuits are adversarial, this perception is understandable.  In contentious cases, with difficult adversaries, showing weakness can be problematic and disadvantageous.  There are other factors to consider when deciding to take a case to a trial or final hearing.

What parties sometimes fail to recognize is that even though taking their case to a judge or jury may convey strength and conviction, it also requires yielding control of the outcome of the dispute to a third-party who has their own agenda, interests, and beliefs.    In cases like personal injury and other tort claims, in which one party either wins or loses, allowing another to decide the fate of their case is a high risk proposition.  Parties should acknowledge the loss of control that accompanies taking a case to court and be willing to accept the associated risks.

Attorneys and parties should remember that mediation offers control over the outcome of the dispute which is directed by the parties themselves.  Unlike mediated resolutions, court decisions are often not consistent with the parties interests and courts have a limited scope of remedies.   In a personal injury case, a court may be required to apportion liability in a way that is consistent with legal guidelines, which allows a party genuinely at fault to escape without any liability.  Or, a court may be reluctant to extend a theory of liability in a way they are being asked to do so, despite clear evidence that such a decision is just.  A court decision is a retrospective snap shot judgment based upon law and judicial perspective, not a carefully constructed resolution tailored to the parties present and future interests.

Court and juries make decisions that encompass interests that extend beyond the specific dispute.  Courts must be consistent with prior decisions, need to make rulings that balance the interests of the parties against established notions of justice, and can only make rulings to the extent they are authorized by the law.  Often, the ability of a judge to fashion a remedy to a conflict is limited to the award of money.  For many conflicts, the scope of the problems extend beyond money and thus a judge’s ability to construct a comprehensive solution is limited.  Moreover, court decisions usually only address past conduct and do not take into consideration future relationships or interactions.

Taking a case to trial can be a bold, strong maneuver.  It also necessarily requires putting your case in the hands of a judge or jury.  In many cases, that’s a step with leads to less than satisfactory or incomplete results.  Mediation keeps the case in the hands of the parties and gives them complete freedom to construct any kind of resolution to which the parties can mutually agree, without limitation as to the kind of remedy.  If the stakes in the outcome of your conflict are too high to risk allowing someone else to decide your case, think of mediation not as a sign of weakness, but as a method of taking control.

Recognizing Pragmatic Motivations

Mediators help parties to settle disputes by facilitating discussion and encouraging the parties to explore, acknowledge, and understand the other’s motivations and interests.  Lawyers, judges, and mediators should all remind parties in a conflict that the pragmatic reasons to settle a case or dispute are sometime equally, or more, important than the specific questions being contested.

Parties in conflict and mediators should also remember that there are typically general, pragmatic motivations and interests which we most often share.  These pragmatic interests often serve as powerful motivation to resolve a dispute. 

Some of the most basic of these shared, practical concerns are avoiding costs; saving time; avoiding unpleasantness and discord; preserving reputation; enhancing positive perceptions; improving future opportunities; fear of losing; economic hardship; and appearing to be a “winner.”  There are few, if any, conflicts which do not implicate some form of these basic, pragmatic interests.

Examples of practical motivations abound throughout the law, politics, and history.  Martin Luther King, Jr. and other civil rights leaders knew that economic concerns would help to motivate business to support desegregation and made many tactical decisions based upon those concerns.  Judges routinely encourage parties to settle cases to avoid large legal bills and the possibility of a bad outcome.  Politicians often support proposals that their constituents favor, even if they are politically odious, to ensure getting future votes.

Whether you are caught in a conflict, or trying to help resolve one, remember the basic practical considerations that can often point towards settlement.  These pragmatic concerns will form the path to an agreement.

When Is Time For Mediation?

Is there a right time to enlist help of a mediator?  Is there are wrong time?  

Like any complicated matter, a conflict is unique in terms of its particular subject, the parties’ motivations, and the overall context.  So, decisions regarding how and when to attempt to resolve any specific conflict should be made in consideration of those attributes.  In some instances, like employment or contractual disputes, there may be a written policy or contractual provision which expressly identifies when mediation should occur.  In most cases, however, the decision is left to the parties and, if they have them, their representatives.

When faced with such a decision, a few basic considerations which may impact the question of when to mediate a conflict:

Future Relationship of the Parties:  if the conflicted parties are likely to be required to interact in the future (parents, family members, business partners) it may behoove the parties to mediate as quickly as possible.  The less time the parties spend engaged in conflict, the fewer angry words exchanged, the better chance to preserve a future relationship.

Inability to Communicate:  if the parties ability to have a productive conversation has been diminished or eliminated by anger  (I understand a fury in your words, but not the words.  Desdemona to Othello).  Mediation may be timely.  The presence of a mediator, and the ability to privately caucus, may offer the parties a method to have a constructive discussion that would otherwise not be possible.

Lack of Realistic Understanding.  If one, or both, the parties in a conflict are unwilling to acknowledge the realities implicated by the conflict (non-paying tenant won’t leave; party overvaluing claim), mediation may help.  A third-party view of the conflict may provide a reality check.  Appearances and positions do not always reflect the truth.  Parties to a conflict usually can’t resolve a dispute unless both sides share a realistic vision of possible outcomes. 

Appearance of Weakness.  There are occasions, especially in lawsuits, when the parties may have an interest in determining whether the decision to mediate might send a signal of lack of conviction in the merits of their claim or defense to the other side.  Serious consideration should be given to how a desire to mediate is expressed, and care should be taken to avoid creating an appearance of weakness.  In such instances, especially if involved in active litigation, it may be better to reference an external authority (court rules, policies, suggestion of judge) as the source of the desire to mediate.

There is no definitive answer to the question of when to mediate.  Think about the context of the conflict and determine whether the parties are effectively communicating.  Be mindful of the appearances and signals sent by a suggestion of mediation and whether a future relationship is likely.  Most of all, think hard about whether mediation could help.  If so, it is likely the right time to mediate.

For an in-depth discussion of the question of the timing of mediation, read Eelco Meerdink’s excellent article:  To Mediate or Not To Mediate?  http://goo.gl/VC87U5

2014: Make It A Year to Resolve Conflicts

A resolution is a firm determination to do or refrain from some specific action, an expression of a firm course of action.  Resolutions are a New Year’s tradition, as is failing to adhere to resolutions.  The gyms of America are filled with resolution makers in early January and usually back to normal capacity by President’s Day.

“Resolution” also has another meaning:  a solution to a puzzle or problem.   As the corks are about to pop, consider a commitment to make 2014 a year of conflict resolution.

Why bother?  Conflict, in all forms, saps time, effort, energy, and money.  Conflict also limits the potential of personal and business relationships.  Being engaged in conflict harms both parties and adds stress and unpleasantness to everyday life.

How?  Dedicate a little time to reading blogs, articles, books, and tweets about mediation and conflict resolution.  I would recommend http://www.mediate.com/ or http://www.mcfm.org/. The techniques used by mediators can easily be applied in every day life and provide basic tools to deal with conflicts on a daily basis.  If you are facing or involved in a major conflict, such as a divorce, lawsuit, or property/financial matter, consider seeking professional assistance and talk to a mediator or attorney who is dedicated to solving problems.

Make 2014 a year of resolution and peace.  Walk a mile in the shoes of your opponents and think about how resolving your conflict with improve every one’s life and chance of success in 2014.

Mediators: Don’t Think Settlement, Think Discussion

Mediation, especially in the context of litigation, is primarily viewed as a vehicle to settlement of cases before trial.  This notion, although true in practice, limits the participants from realizing the full benefit of mediation.  Mediators should avoid the impulse to direct the parties to settlement until they are ready and instead focus simply on creating a dialog.

Mediation is a process.  A neutral third-party facilitates discussions between conflicted parties.  Those discussions are directed by the mediator to examine the parties’ fundamental interests and motivations and create acknowledgement of their respective agreements and disagreements. 

Whether or not the parties settle their dispute is up to the parties, not the mediator.  Mediation should be characterized by a wide-ranging discussion of the parties’ conflict and the associated interests of the parties.  Therefore, a successful mediation may not result in a settlement at all.  If may be sufficiently beneficial for the parties to leave the process with a better understanding of their opponent’s thoughts and interests.

When mediation becomes settlement focused from its initiation, the discussion is likely to be too limited to the traditional ingredients of settlement (monetary payments, legal fees, court actions).  The parties may not realize the full benefit of mediation and the full scope of their intersecting interests and motivations may be left unexplored.  Mediation strictly for settlement is like taking less than a full dose of medicine.  It may help, and sometimes be successful, yet the full benefit is not going be delivered.

No matter the outside pressure to settle the underlying dispute, try to allow the parties to mediate with the only goal being discussion.  The results are more likely to be comprehensive and the understanding of the parties more complete.

Understanding Interests Leads To Agreements, Even Against Significant Opposition

Summer, 1960.  John Kennedy has just won the Democratic presidential nomination.  It is time to pick a Vice-Presidential candidate.  First thing in the morning, on the day after his nomination victory, Kennedy asks Lyndon Johnson to join the ticket.  Many of Kennedy’s advisors and supporters don’t just think this choice is unwise, they hate Johnson and see him as a symbol of Southern intolerance and repression.  Kennedy’s closest advisor, his brother Robert, despises Johnson and apparently tries to sabotage the selection even after it was already made.

Likewise, some of Johnson’s closest advisors were opposed to him becoming Vice President and Johnson is not even on the radar of most national journalists and pundits.  Johnson’s mentor and father figure, Speaker of the House Sam Rayburn, was adamantly against the idea. 

There were many obvious reasons why Johnson seemed like an unlikely VP selection.  Johnson’s life long dream was to be President of the United States, that dream had just been snatched from him by Kennedy.  The Vice Presidency was then seen as a joke and a massive step backwards for Johnson.  In 1960, Johnson was the Senate Majority Leader and the most powerful Democrat in America.  Johnson’s control and tactical command of the Senate was virtually absolute.

Feelings against the Johnson’s VP nomination were so strong on both sides that blows were exchanged and lasting personal fractures were created on the day Kennedy offered the job to Johnson.  Yet, through vitriolic arguing and cajoling, Kennedy and Johnson were remarkably dedicated to making sure Johnson was nominated as Vice President.  Even though most of their trusted voices were telling them not to go forward, and party bosses were threatening to stop the VP nomination of Johnson, the two men reached an agreement in about eight hours, despite enormous pressure.

The events surrounding Kennedy’s VP nomination of Johnson have been examined countless times.  In Robert Caro’s most recent book, The Passage of Power, the author does a wonderful factual analysis of that day’s events.  Mr. Caro also carefully explains that both Kennedy and Johnson were keenly aware of their own interests and made strategic decisions on that day based upon those interests, irrespective of how unpopular or seemingly mistaken those decisions were.

The forces that motivated Kennedy and Johnson were so strong that each man was able to reach an agreement in the face of violent opposition and accusations of betrayal.  The episode forms a powerful lesson for mediators and dispute resolution professionals:  understand the parties’ interests.  Parties are likely to consent to an agreement which advances those interests to the great possible extent, despite what other’s think or advise.

Why did Kennedy offer Johnson the VP nomination?  As Mr. Caro explains, simple math.  Kennedy needed to win Texas in order to win the election.  Kennedy was not afraid to alienate his Northern supporters by picking Johnson because Kennedy understood fundamentally that Johnson was needed to give him the best chance to beat Nixon in the general election.  On a personal level, Kennedy did not particularly like Johnson and did not agree with him on many political issues.

Why did Johnson want the VP nomination?  Mr. Caro details that since Johnson wanted to be President more than anything else, Johnson’s realized that, as a Southerner, he might never win the Democratic nomination outright.  So, VP was likely the best path to Presidency for him.  Also, if Kennedy became President, Mr. Caro points out that Johnson would no longer be the most powerful Democrat and would lose at least some of the power he had amassed as Senate Majority Leader.   Lastly, Johnson did not like Kennedy, thought he was an insignificant and undeserving candidate, and hated his brother, Robert. Johnson knew that VP, although seemingly a significant step down, was the best vehicle to advance Johnson’s interests. 

So, as Mr. Caro wonderfully describes, in the face of sometimes apoplectic, hateful opposition, an agreement was made.  History proved that to be remarkably successful in relation to both parties.  Johnson campaigned effectively for Kennedy, delivered Texas, and Kennedy beat Nixon and became President.  On November 22, 1963, due to national tragedy, Johnson became President and Johnson won re-election in 1964.

Fundamental interests dictate agreements.  Always keep this in mind when negotiating or mediating.  Remember the lessons of 1960 when faced with trying to form an unpopular agreement.  No matter how loud the opposition, if an agreement genuinely advances the parties’ interests, it should be considered.

Dreading Turkey Day Dinner Meltdowns? Bring Mediation to Thanksgiving

Thanksgiving asks us to celebrate the bounties of life and encourages us all to reflect upon the gifts of health and abundance we have been given and, most often, that involves gathering for a traditional family dinner.  While such reflection should result in a full enjoyment of the peace, harmony, and tranquility which President Lincoln hoped the holiday would bring, sometimes family conflicts prevent the fulfillment of the entire promise of Thanksgiving. 

Instead of allowing conflict to diminish your Thanksgiving, bring the techniques and approach of a mediator to the dinner table.  This might help lessen the chance of the a breakout of awkward silences or passive/aggressive torments that we have all experienced while dining on turkey and stuffing.

Remember that almost everyone shares a basic desire to have a pleasant dinner, with good food and good conversation.  Therefore, consider what the optimal Thanksgiving dinner would look like and do your best to help achieve that ideal holiday experience.  Acknowledge every one’s efforts to contribute food, drink, or other gift and do your best to diffuse and re-direct others away from possible hot buttons that can lead to conflict.

Hosting a Thanksgiving dinner is a challenge. Hosts want their guests to enjoy their food and experience and want their work to be valued.  Acknowledge your host’s efforts and help when ever possible.  Put yourself in your host’s shoes and try to do those things you would want your guests to do and express appreciation for those things you would want others to notice and appreciate.  If a rhubarb of one sort does break out, focus on putting out the fire, not solving the underlying problem.  For most, Thanksgiving is a day for happiness, not constructing solutions to long held arguments.  Leave the heavy work for another time and focus on those things that make everyone feel good. Remember that Thanksgiving is a celebration and a memorable, important day for everyone.  Respect others, be on time, and have fun.  Think about the experiences of those around you and keep your attention on enjoyment and happiness.  Hopefully, this kind of approach will help you, and those around you, to have a wonderful and fulfilling Thanksgiving.

If you see that family is sinking into a conflict, there is always football and napping, sure fire ways to distract and re-direct.

Happy Thanksgiving and good luck.

Mediation of Conflicts in the Arts Community

Check out my presentation regarding the application of mediation disputes among artists and cultural organizations for the Volunteer Lawyers for the Arts.  Thanks to D’lynne Plummer for the opportunity to present and Megan Low for her comments and guidance.

 

http://goo.gl/JZBnFy

Condominium Wars? Mediation May Lead to Some Peace (and Quiet)

Condominiums, especially those with fewer than ten units, can become nests of difficult, stressful conflict.  As unit owners come and go, it can be difficult to ensure that everyone lives within the rules and respect each other’s property rights. 

When a condominium unit is purchased, the buyer has the right to the exclusive use and modify the unit itself and then, depending upon the specific condominium rules or by-laws, some use of the common areas like hallways, yards, garages, and/or basements.  Usually, permission is needed from other unit owners to make any significant change which impacts common areas.  Most often, conflicts arise in relation to the use (or misuse) of common areas.  From arguments about what can be put on a porch to whether or not to fix the condominium’s roof,

When these conflicts occur in a condominium, they can, like all neighbor disputes, get nasty and destructive.  Often, these disputes devolve into yelling matches, or worse, and make being at home unpleasant and stressful.  In rare instances, condominium conflicts can become so entrenched that unit owners end up involving the police or engaging in vandalism or property destruction.  More often, these conflicts end up in the hands of attorneys or before judges, which is expensive and does always lead to satisfactory, final outcomes.

Mediation is a good alternative to help unit owners get past conflicts and create solutions to disputes that arise inside condominiums.  Why mediation?  In a condominium, the unit owners share several common, fundamental interests:  living in a quiet, enjoyable environment; having a reliable process to ensure the condominium is well maintained; and preserving the highest market value of each unit.  When there are overlapping, basic interests shared by the parties to a dispute, mediation is a good choice to resolve a conflict.

Since mediation is a process which seeks to build solutions to conflicts based upon the satisfaction of mutual interests, mediation can be particularly effective in the condominium setting.  Moreover, bringing in a third party to mediate a conflict between neighbors provides a buffer that can keep the dispute from getting too contentious and provide a chance to maintain a tolerant, respectful relationship.  When faced with a condominium conflict, consider mediation as a way of creating a solution which might restore some sanity and provide a reasonable solution before things get out of hand.