What happens in mediation discussed 2 - Opening Statement

The previous blog entry began explaining what typically happens at my mediations. I left where we are in joint session and each participant in a dispute is asked to make an “opening statement”. Take a workplace dispute which involves one employee hitting another employee in a one sided fight in the workplace. One approach that I could take is to ask “why are you here and what is it you hope to accomplish in this mediation”? This might be ok, even necessary, if no preparatory work has been done and I don’t already know why the parties are there and what they hope to accomplish. If we did preparatory work then what’s the point in acting as if I didn’t? So what’s the alternative?

When considering Victim’s case he has many choices as to what he wants to say, individually or in combination, between:
I’m hurt, I’m confused, I don’t know why you attacked me, you hurt me and now I require on-going medical attention, I need to be compensated for the damage you inflicted on me and my future medical expenses, I want you to resign from this organization, I want to know I will be safe in the workplace, I want you fired, I don’t want you coming near me either in the workplace or in the community, I want us to be able to continue working at the same place (with caveats).

In preparation for making an opening statement I want each person in a dispute to work with me in identifying and focusing on their issues and needs. I want them to prioritize. Look a few steps ahead as to where they want to go in mediation. I’m not asking them to be a chess player – to see all the way through their end game. What good does it do me as their mediator? I don’t like surprises like – after hours of work “I’m not here to negotiate just to do discovery” – or – “I’m here only because the court ordered me here so I have to go through this.”

As your mediator my challenge is to elicit each persons issues and needs. Even though they may be very different between disputants issues and needs are critical in establishing common ground as well as gaps and disconnects which must be bridged in a march towards resolution. My job is to provide all participants in mediation with an opportunity to accept the challenge of entering into mediation collaboratively with a problem solving mindset.

So what would be an example of an issue and needs based opening statement in the above case assuming Victim wants to understand why he was attacked followed by concerns about personal safety should they both return to work. The attacker is remorseful, and wants the victim to understand what was behind the attack.

One possibility:

“As a result of your attack I have suffered ear damage – a broken ear drum. Although it is reparable I have hearing loss. I am still traumatized by the incident and never want to go through something like this again. I need to understand why you attacked me (challenge). I want an apology (challenge). I want assurances this will never happen again (challenge). I am not sure I can trust you and so I need to have reasons why I should trust you (challenge).”

Aggressor statement:
“I had a lot of things going on. This does not excuse my behavior. I want to explain what happened. I can’t tell you at this time that everything will be resolved in this meeting (mutual challenge, but rather general). I do want to bring this incident to closure so I will work with you to see what we can do (challenge- let’s work collaboratively).”

First, I look to see whether there’s a wow moment, something dramatic, unusual but sometimes it happens. Gaps and disconnects are the norm otherwise they would not be in mediation. Sometimes gaps seem like insurmountable chasms.

In this case Victim starts by informing the Aggressor about the damage he created. From here his priority runs down a line of trying to understand why he was attacked, apology, personal safety concerns, and the role of trust in working collaboratively towards resolution.

Aggressor starts with a statement that there were circumstances involved which, although they do not excuse his behavior, he believes are relevant to the incident and wants to explain. He does not assert that resolution can be achieved but he states he will work collaboratively.

The common ground between the parties starts with a willingness to work collaboratively (if we can reach a reasonable level of trust). There are indications an explanation and discussion about what happened is forthcoming. However, there are disconnects. Victim wants an apology – and although aggressor acknowledges his behavior is wrong he does not offer to apologize. Victim wants to understand why the attack occurred. Victim voices concerns about trust – Aggressor talks in terms of not being sure resolution can result through mediation.

Can you see the difference between an issues and needs statement versus answers to “why are you here?” “what do you hope to accomplish?” It’s an answer that at times better suites the needs of a mediator who hasn’t conducted preparation than it does the clients.

Collaboration, even adversarial collaboration, once established works best for me when there are issues and needs not only identified but laid bare in an opening statement.

We’ll continue this discussion in the next blog entry.

What happens in mediation discussed.

In discussions with a variety of people it seems the tendency is to talk about such things as reasons why one should turn to something, in my case for example, mediation. When you’re done and no business is generated you wonder why. One reason is they don’t know the what happens in a mediation, a result of getting a long term care policy, agreeing to buy a car but here’s the bad news when you see the actual sales agreement. So, this blog entry is about what happens in one of my mediation sessions.

The first thing is the greeting and a genuine welcome – bring out the humanity of those of us who are participating in this process. Try to go for first names. Ask about comfort, give the clients an idea where the amenities are at in case they need to utilize them. Ensure there is a response. Oh, and I should have mentioned the first assumption – we are all in the same room – which is not always possible or advisable. However, let me stick with the we’re in the same room together theme.

As a mediator I try to use the demeanor of the parties, their body language, the tone of their voice, whatever can provide a clue about a client’s mindset – the words they use during the greeting - to determine an appropriate approach for their specific case.

Another mundane but necessary and sometimes essential fact is the seating arrangement – sitting between them, or in front of them, or whatever is called for in a particular situation.

I then launch into a brief description of the process – which to some may be too wordy – too much detail – not enough – I try to gauge when there’s enough info and understanding out there for them to appreciate what it is I’m intending to do from process standpoint. I may say something like:

“Mediation is a process of negotiation in which I serve as a guide. You are in control of the information you wish to share, negotiation strategy, and decisions made – which must be mutual except to stop mediation – any of us can unilaterally make that decision – in my case that would only happen if I feel we’ve reached a point where it’s no longer productive to conduct further negotiations because we haven’t quite figured out how to resolve our differences, there’s too much of a power imbalance, or there is a threat of violence.”

We start in joint session and continue that way during mediation. However, if we feel it’s more productive to go to separate sessions any one of us can make such a suggestion. And if we are in separate session and you tell me something you want me to keep confidential from the other side I am bound to do so. And, as it pertains to confidentiality, it is protected under our states laws which basically means what is said in this mediation stays in this mediation and cannot be used in subsequent litigation – nor can I be subpoenaed to appear in court.

We all attest to confidentiality by reading, understanding, and signing this confidentiality agreement (agreement is circulated and all participants sign it). Are there any questions?

Then I turn to verbalizing ground rules which include such caveats as:
Not interrupting while the other is speaking.
No verbal abuse towards the other party or towards me.
Exercising civility towards each other.
No threats of violence.

Since in most of my cases we do preparatory work for a joint mediation session in which I work with each of the clients separately. Now why do that. Well, one reason is to decide whether I can and should take the case – is it ripe (ready) for mediation? Am I the right mediator to take on this case – is there specialized knowledge required which I do not have? What kind of expectations does a client have of me and a mediation? Who is going to be there and does it match up with – who has to be at a mediation? There are many other factors which need to be considered including – power – can the people in dispute deal with each other on equal terms is there too much power on one side making it more of “do what I want or else”. That’s not mediation. In such instances for example it may be necessary for a client to engage a counselor – an attorney for example – in order to remedy a power imbalance. And finally, I want to know enough about their situation and negotiating strategy so I can tailor my approach to the clients needs.

Failure to hold preparatory sessions can lead to such surprises as not realizing there is a “restraining order” in place, and here they are in the same room – one fearful of the other. Or, one of the people in dispute has no intention of working towards resolution but rather is just there to fulfill a court order – some still hide this intent until such time as it seems agreement is near and they refuse to further participate. Another example of what happens without a preparatory session is that a client brings a multi-page statement they insist on reading which is a litany delving solely on the past. They may bring someone with them which is not agreeable to the other person in the dispute. Or they may not be aware that they should bring some documents with them or thye bring too much documentation expecting all of it to be reviewed and discussed during a mediation session. It goes on and on – so insist on some preparatory work.

I also try to prepare clients on what to expect. For example, I will brief them on the process and ask them to come prepared with an “opening statement” along with a suggested format.

In the next blog entry I will cover what works in an opening statement and what does not and proceed into steps which follow.

Selecting a mediator

Have you decided you want to agree upon a mediator as part of establishing a relationship in a business with business, business with client, or interpersonal relationship? Are you at a point in a relationship where there is a need to call for third party intercession not as an advocate for one side but as a neutral? If so how do you go about seeking out and selecting a mediator?

A mediator is someone with whom your relationship is creating another relationship of mutual trust, competence, and with a set of expectations a mediator has the skills you need to reach agreement.

Having people in a relationship mutually agree upon mediation comes with an understanding of what mediation is. One way to look at mediation is as an intercession by a third party using a process designed to match the needs of the parties when they themselves are unable to reach agreement because there are disconnects that preclude them from finding resolution.

However, the parties maintain control of decision making.

In order for mediation to play a useful role in a relationship it is important to set and understand expectations. Although there are processes and means by which to convey various levels of authority to a mediator let’s stick to mediation in which all authority for decision making is retained by the parties – often called facilitative mediation. So, unless parties do otherwise their expectation, should they be in conflict, includes dealing with issues as a form of problem solving where each party lays out their issues and their needs – followed by identification of alternatives – followed by selection of an alternative which they mutually agree satisfies their needs and resolves their issues.

Mediators are people who have skills meant to utilize a process by which they draw parties into problem solving – identifying and selecting from a set of alternatives – and reaching agreement. All of this, while holding the trust and confidence of each party they understand, because they are good listeners and can accurately, at least recite in some fashion they, comprehend each party’s issues, perspective and needs.

How do you find out? Well, just as in other critical selection processes, there is still no better way to make a pick then through a face to face discussion, followed by using the phone and engaging in a conversation, using a set of probing, or open ended, and specific questions.

“I , we are looking for a mediator. Tell me a bit about yourself, your background, experience?”

Follow up by getting a level of understanding about the process they utilize.

“Can you tell me what you do when people want to incorporate mediation in establishing a business with business relationship where disagreements may arise? For example what do you do if there is a disagreement over price in a business transaction, say purchase of widgets?”

Make sure prospects understand whether you are calling solo or there has been mutual agreement to create a relationship with a mediator by the parties in a relationship.
If the call is solo ask prospects how they go about making contact and reaching agreement to engage a mediator.

How do they charge for their services? Lead times to respond, time from a request for a session to actually holding a mediation, steps involved in getting to mediation?

Have as concise a statement as possible about what engagement of a mediator you envision and what expectations parties or an individual might have.

“We’re forming an antiques business where there is lots of risk and we may disagree about whether or not we should purchase a particular antique. Do you have any experience in this type of business?”

In this kind of relationship are you looking for experience in this particular type of business transaction or whether you are more interested in the process which a mediator may use in this type of situation? Does the prospect make sense, have a logical approach, exhibit confidence they can deal with this type of situation?

Remember a mediator does not represent any one party, but all the parties in a relationship – mediators are not advocates.

Shop around.

Most mediators have web sites, many have blogs, e-newsletters, brochures, business cards etc. There is still no better way to learn about a mediator then through a word of mouth referral.

Make sure that all the parties in a relationship agree upon a mediator. Entering into mediation and agreeing on a mediator are important decision mutually made towards increasing the probability of successfully dealing with issues in a relationship and ultimately resolving them to maintain harmony and reach agreement.