Prevent, Avoid, Resolve Conflict

Apology - Forgiveness - Power and Challenges in Resolving Conflict

2011-03-19T13:54:00.000-07:00

Apology and forgiveness are powerful elements which not only have their own benefits and risks but have collateral consequences as well. The tricky part is knowing when to offer, when to accept, and how to do it that is appropriate for the situation. There are also concerns about legal consequences as for example in a perception that the acts are admissions of liability or guilt. There are also issues for mediators including as to the role they play in these acts – as for example if the disputants do not bring it up – should a mediator suggestion be made and to whom?

There are cultural differences to be considered as well. In some cultures it is considered highly appropriate and even required to apologize – as in Japan when we see CEO’s and even government officials apologizing.

A further point to be made is that although there may be linkages between apology and forgiveness in a case there should not be an expectation that both will occur – and certainly there is forgiven but not forgotten often in play.

The words used and the emotions transmitted and perceived by the recipient - sincerity for example – remorse – are as key as the recipients willingness to accept or reject the offer.

Why bring up apology and forgiveness. There are profound benefits possible through this process however they are not clearly understood, appreciated, or accepted. Vengeance is in many cases as powerful a driver in conflict and overshadows apology and forgiveness. Frankly there are some acts which seemingly defy positive thoughts about apology much less forgiveness.

What are the benefits of apology? One is, that’s what a disputant is really looking for – and- in some cases that’s all that is needed to resolve conflict. From there we go to potential changes in position in terms of demands by a disputant – an apology can reduce demands for money damages. To, as we link them above, forgiveness.

What are the drawbacks? An expression of apology may be perceived as not only as sign of weakness but also an admission of wrong-doing leading to bigger claims for damages. There is concern that an apology might be used in court as evidence of an admission of liability. That’s an argument I have heard put forward in discussions.

As for a mediator role in this arena – I have heard – it depends. It may get tricky if neither party brings up the issue and a mediator is thinking about putting it forward as a mediator suggestion to move parties towards agreement. Apology is tough enough – forgiveness is even harder to gauge. What if one party buys into an apology – offers it – and it is rejected – what’s the impact on a mediators credibility and effectiveness? So, don’t think it is easy for a mediator to navigate in this arena.

Another reason is that I’ve spent the last day reviewing a session on this subject we captured on video. It is a fascinating subject. The session had a full audience which at times was very interactive. It took a full two plus hours to cover this subject and do an exercise.

Don’t underestimate the power nor the challenges in apology and forgiveness – I’ll end with one observation about forgiveness – at times the biggest benefit is to the person who forgives.

Mediation - Negotiating Strategy?

2011-01-24T16:37:00.000-08:00

One process in mediation is negotiation – from it’s about the money to I want you to do something which fulfills a need generated an issue which has come up because it trespasses on one or more of my interests, and so on. There are many books on negotiating – from the practical through the theoretical. I’m not competing against these books – I offer some thoughts and examples from my experience.

• Information game? - At times a person with better information about their case does better. Why? Your “position” is “factually” stronger than your opponents – if you can communicate your facts in a manner which is accepted or not countered by your opponent. Call it “evidence” if you must – however keep in mind that “facts” presented in mediation are not subject to the rules of evidence as they are in a trial. One accusation leveled against mediation by those who believe this is a weakness of mediation – provides a license to lie. However, here’s something to keep in mind – facts represent a view of reality – your opponent may have the same, similar, different or opposing reality. So, since, a decision to agree in mediation has to be mutual – your facts may not be the way to agreement. What else can you do?

• Alternatives – Too often it seems clients plan for and expect a solution based purely on their logic – be it fact or otherwise based – and leave themselves vulnerable to failure in reaching agreement. Even if they consider alternatives they do not spend sufficient time I thinking through the consequences of agreeing to an alternative. At other times an alternative comes up because an opponent or even a mediator provides an alternative you have not thought about. And, they accept because it sounds good at the time. Mediation is an iterative process which can consume considerable time and even intense effort. Negotiators are sometimes very clever- even gifted – at wearing down an opponent – seeming to push a case to impasse and then magically an alternative is offered – mediators often wait until it’s almost impasse before they offer a “mediators suggestion” which can be an alternative – jumping in too early may be perceived as “un-objective”. Mediators also get worn down. So, clients should be prepared to consider with and deal with alternatives which come up in mediation – don’t get caught in a state of weariness seemingly at the verge of impasse – a sudden burst of energy “have you thought about ….” followed by “would you consider this a viable alternative …” – and either reject or accept the proposal. If possible be positive – maybe it is being offered in good faith and has value – so trust but verify – think an alternative through – ask for a continuation of mediation – and for heavens sake don’t cave when you genuinely feel it doesn’t fill a need to resolve issues which hurt my interests.

• Time – So many people are unwilling to dedicate sufficient time or weigh the value of time when it comes to mediation. “I’m tired”, “I just want to get it over with”, “I’m missing work”, “this is just a waste of time”. Keep focused on the issues and just how valuable it is to resolve a conflict or dispute. Using time to advantage is sometimes effective on the part of some negotiators who are very adept at making time play in their favor. As mentioned above timing can be a critical factor. Just think about your experience in going to a car dealership where the salesperson has been trained to get and keep you engaged on what has been proven to work in the dealerships favor. Calculate your own timeline and timeliness – what works in your favor and even consider what works to the mutual benefit of you and your opponent.

• Should I be competitive or collaborative in terms of negotiating? Start by asking how big is the pie we’re negotiating over? If it’s just not big enough for the two of you then think in terms of making it bigger – through collaboration. If it’s big enough and you just want your share or your piece back then your probably better off negotiating competitively. Studies have suggested that competitive versus collaborative – competitive does better. When there’s money involved, and that’s it – then you may want to just get as much as you can – however – if there’s more than just money then you might want to alternate between competitiveness and collaboration. What about when you feel in a weak position? Should you make the first offer or let an opponent go first? Some say going first let’s you set the range in a negotiation – think about it – is this what you want to do – set the range? What about setting expectations for a negotiation on a complex set of issues? Should you stake out a position – seem open to negotiate – or be rock hard? These are all considerations in deciding on a negotiating strategy.

The biggest mistake often made is coming in unprepared – the court sent me here type of thinking – or “I don’t know the other side suggested it” or “I don’t know”. The more you know about what mediation is and the better developed your negotiating strategy is – the better chance you’ll be able to connect in a way that gives you a chance to reach mutual agreement – without, at least feeling you’re, capitulating – blaming mediation and a mediator for a failure.

Joint and One on One Sessions

2011-01-19T21:30:00.000-08:00

Unless there's an objection mediation sessions often start in joint session where all of the parties meet with a mediator in the presence of each other. There are many benefits to a joint session. Usually a joint session:

saves time
provides an opportunity for the parties to talk with each other (through the mediator or directly to their opponents)
allows each of the parties to communicate via the non-verbal aspects of human communications (e.g. body language)
prevents some of the misinterpretations which can occur should a mediator not fully comprehend what is to be communicated
allows for follow-up through questions and responses to questions

The risks in joint sessions include:

raw emotions take over and focus is lost on issues because of the presence of opponents
being in the direct presence of opponents may constrain the exchange of information because of fear of saying something may adversely impact negotiation
creates discomfort, stress, and pressure which a party may not handle well which adversely impacts negotiations
an aggressive opponent may try to manipulate, intimidate, or worse a party who they feel is showing weakness.

Getting the most out of joint sessions:

know your facts
assess your situation
know yourself
put yourself in the others shoes
come prepared with a negotiatin strategy
stay focused on the issues
if emotions start to get away ask for a break
listen and absorb
be flexible
decide whether to be collaborative or competitive when negotiating an issue or expressing a need
be prepared to receive as well as to offer alternatives
use probing or open ended questions
avoid being overly wordy and don't monopolize the time
be clear
don't be personally abusive of your opponents
humor does have a role in negotiation - it's an ice breaker - keep it clean
measure tone and voice
watch your body language
observe the others tone of voice and body language

What alternative is there to joint session? The answer is - one on one session with mediator. Why?:

it's not possible to communicate effectively, or emotions are too high, or there's fear of being in the presence of opponent
there's a need to consult with, or provide information to the mediator without the presence of opponent (remember a mediator cannot take sides or act as your or your opponents advocate in any manner so don't put mediator on the spot)
you believe mediation is going nowhere and are seeking alternatives via a mediator reality check or suggestion
you want to discuss a topic with mediator which you feel is essential for the mediator to understand however you do not wish what is said to be disclosed to opponent

What are the disadvantages of one on one's with mediator:

loss of rhytmn in negotiations
creating a sense of stalling in your opponent
creating a sense of weakness in you by your opponent

Mediators Role in joint sessions:

acting as a catalyst in creating and maintaining dialogue between parties
maintaining civility during mediation
actively listening (reframing, reflecting, asking probing questions)
being timely in intercessions
making useful and constructive intercessions
being empathetic to all parties interests, issues, and needs
conducting reality checks when necessary
respecting requests for confidentiality by a party to mediation
being non-judgmental
offering mediator suggestions when appropriate
iteratively and progressively narrowing the focus towards agreement

There's much more to be said about joint and one-on one sessions. I hope you agree thsi is a reasonable start.

Ground Rules - a foundation for mediation

2010-04-17T12:02:00.000-07:00

Our topic is mediation. Before proceeding further, about where we go from an opening statement in the process of mediation, covered in the previous bog entry, it is appropriate to back-up and discuss in detail ground rules and the role they play in mediation.

Drawing some parallels is a good start. At sea or on the water, in nautical terms we call them rules of the road. In soccer or football we call them rules of the game. In judicial terms we call them procedural rules. In mediation we apply the term ground rules. What are they and what purpose do they serve?

First let’s tell you what they are not. The biggest apparent difference between mediation and the examples used above is: in mediation there is no authority on the part of a mediator to impose a sanction for their violation – no fine, no ten yard penalty, no “you’re outta here”. A mediator relies on the cooperation of the parties and should they refuse his worst case recourse is to end a mediation.

Mediation is, to a very large degree, built on concepts of civility and respect by opponents for each other. By its nature, mediation is largely a collaborative process, problem solving, largely built on achieving or reconnecting mutual trust. Ground rules are meant to facilitate parties in collaborating and participating in problem solving.

We often start with a reminder that civility and respect are a basis for conduct of mediation. Mediations are more akin to business meetings then they are to a court room. Usually only parties and mediator are present. There’s no court clerk or armed sheriff present. Civility and respect is at times difficult to achieve and sustain where trust has been eroded or broken and emotions are running high. At times incivility and disrespect result in clients who are unable to participate or make progress in mediation.

And, unless and until a level of civility and respect are established they are better off utilizing an advocate and considering and using arbitration or litigation.

Since mediation sessions are often a three way communications it is important for the parties to have continuity and complete their statements. As a result mediators often remind clients “one speaker at a time and if you have a question write it down and ask it during your turn”. I was reminded that there are people, who for a variety of reasons, when interrupted, unable to complete the communication they are trying to make.

I find it difficult however, when one party is excessively long in making an uninterrupted statement or insists on reading lengthy statements. At times it is necessary to give them extra times at others they are being somewhat disrespectful of the other party. Consequently I find myself interrupting them myself. The listening party often has a time limit of how long they can keep focused on what is being said or the fairness of spending so much time by one party. Frustration results in such statements as “get to the point”, “tell him what you want”, or complaints about waste of time, unfairness, or worse. A persons need for time to make their points is a discussion with individual clients during preparation and accommodations are provided for in ground rules.

Coarse or foul language can also be problematic. Language can be offensive, personal in nature (name calling), and be so colorful as to actually mask critical communications. I discourage it to the degree both parties can agree.

Threatening verbal or body language can cause mediation to end quickly and if a threat is immediate, mediators are bound to react by ending mediation. A mediation setting has to be a safe setting for open dialogue and negotiation. There are no sheriff’s in a mediation setting.

In those situations where clients cannot share the same space during mediation a tool commonly used is to separate opponents to separate rooms and for mediators to shuttle between the parties. If emotions begin to run high during mediation mediators or clients can request separate sessions.

An agreement in advance, as a ground rule, to allow separate sessions to take place under such circumstances allows for choice and better prepares clients to sit by themselves while mediators are engaged with the other party. Also useful is a mechanism by which separate session do not become abuse of process by particularly verbose venting diatribes meant to derail dialogue. There are clients who need to vent or are compelled, or even find it necessary to use a lot of words to express themselves. However, this may make their opponents feel like they are being marginalized, the process unbalanced, or even unfair.

Confidentiality is of course a ground rule which, because of its importance, addressed separately and agreed to in writing. There are two elements to confidentiality. One is the confidentiality of what is said in mediation as well as agreement not to bring a mediator into litigation should a case proceed in this direction. The second element is the ability of a client to provide mediators information which is necessary for a mediator to understand but which they do not wish the other party to be privy to. As an example a client may wish to convey to a mediator something which is very personal in nature about their state of mind, health issue, or other personal predicament which is affecting their lives and impacting a case. They may not wish their opponent to be aware of a condition. Mediators are bound to keep such information confidential.

Partially because many mediators are not attorneys, as well as not to influence clients opinions, mediators are not permitted to offer legal advice in a case which they mediate. Likewise, clients need to understand that should they ask for advice, this request will be gently turned away. This is not to say that at times there are close calls between mediator suggestions and advice. The difference is that advice is specific to a question wherein a mediator suggestion is meant to be a search for alternatives for clients to consider. As an example of a request for advice might have to do with a clients query about the legal merits of their case? A mediator cannot offer his opinion in response to this question. However, there is a process of evaluative mediation in which a mediator is engaged to conduct an evaluation for clients. We are not dealing with evaluative mediation in this blog entry. As an example of a mediator suggestion consider a case in which clients are stuck on an issue, say on the amount of money to be exchanged in a transaction. A mediator may offer a suggestion to clients which bridges their difference. There are many variations on this theme which I plan to address separately.

There are many other examples, needs, and uses of ground rules which can apply to specific cases. The basic principle behind ground rules is to provide a reasonable set of boundaries which assist clients in understanding and agreeing to a process meant to encourage openness, fairness, safety, civility, respect and dignity. At times just hitting the right types of ground rules are by themselves a breakthrough for clients for whom communications have become the wild, wild West of times past.

And by the way, even though many clients don’t feel a need to pay any attention to the clothes they wear, their appearance, demeanor, or body language, these factors often play a significant factor in adding to or diminishing a mediation process. Particularly in multiple sessions, I’ve noted that clients tend to raise or change their standards based on progress in mediation.

What happens in mediation discussed 2 - Opening Statement

2010-03-16T12:15:00.000-07:00

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.

2010-03-13T23:36:00.000-08:00

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

2010-03-01T12:35:00.000-08:00

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.

Intro to the Field of mediation facilitation

2010-02-25T12:52:00.000-08:00

The field in which I practice includes mediation and facilitation where I intercede on behalf of people who need a third party involved in reaching consensus and or resolution on an important issue involving business to business, business with client, or interpersonal relationship.

In my previous two blog entries I provided definitions (in context) of commonly used terms in our field of, avoiding, preventing, and resolving conflict followed by an example of a car purchase demonstrating where these terms are applicable.

This blog entry is meant to introduce what we do in our field. I also discuss some of the tools and skills I bring to the table.

Did our car dealership avoid or prevent conflict? They did not. We can ascribe a variety of reasons why not. My opinion is that the result we see – dispute – is avoidable and preventable and one of the key tools to attain this state is to know when to call for outside help. A third party and specific processes designed to provide objectivity and such tools as reality testing is a critical component of avoidance and prevention.

As a mediator or a facilitator I become a third party in a relationship.

Why would people in a relationship want to engage me as a third party?

Here are a few reasons why utilization of a third party and agreeing on a process in the formative stage of a relationship can be very advantageous:
· People entering into a relationship realize that in their endeavor there will be disagreements which can grow into conflict or dispute if debates grow into issues and issues generate needs which must be satisfied in order to regain harmony in their interactions.
· They see a third party and process using a third party being available as a benefit to their relationship. For example, they may plan for a time in their relationship when they need to call for outside third party help because communications are breaking down. However, they do want to maintain control in who will intercede, in selection of a process, and in decision making. They may want to forestall concerns that emotions will over-run their ability to focus on developing issues. They may want to guard against power imbalances, desire a level playing field, and some assurances about safety and confidentiality in what is discussed. They may have concerns about timeliness and want to know if the trigger is pulled there will be no delays in implementing their resolution process. They may be concerned about inconsistencies between when multiple people are involved in multiple transactions or dealings during a relationship. A third party focused on process can bring such consistency. And, they may have concerns about the potential adverse impact all of the above have on a critical relationship. Proactively resolving issues is as critical as any other factor in their relationship.
· Assisting in negotiations, mediation, or facilitation requires tools, skill sets and experience. It is really interesting that a lot of people claim they utilize mediation and facilitation skills every day. Their claims do not necessarily mean they do it well enough for a particular situation which arises in a relationship. Having a third party available gives them an option to turn to a professional in the field. In some cases utilizing a person within the relationship who is engaged in the dispute as a mediator or facilitator may be the worst thing they can do. In some cases engaging someone totally unfamiliar with the substance of an issue is the best person to tackle that issue. In other cases knowledge about a subject may be critical.

In our example case, a car dealership is relying on a salesperson to be all things to all people - a loyal employee, communications, spokesman roles and kind of a mediator or facilitator. We now know from experience that un-intended acceleration issues can be highly complex issues with potentially grave consequences for all who drive the car, the salesperson, dealership, and the car manufacturer. Disconnects and gaps in communications can often result when there isn’t a third party involved to listen and hear, dispassionately and with empathy, what each party has to say about an issue in a relationship.

Interests initially held can be crushed in a relationship gone bad and trumped by circumstances. In our example case we mentioned the Buyer and Sellers price interest. Seller wants a profit. Buyer wants a bargain. Harmony is created when they agree on a purchase price. However, as the Buyers claim of un-intended acceleration grows from debate or opinion, to a perception of a threat to his person, and finally strong opposition to the Sellers insistence there is no problem, Buyer sees safety as the priority interest. Sellers priorities in interest will start shifting from profit, to customer satisfaction to reputation, to concerns about potential product liability. Skilled third party intercessors have to be able to identify and deal with their clients interests.

Communications between Buyer and Seller may have begun with a sense of harmony or agreement, turned to debate, to growing mistrust, and finally into opposing views with, potentially, very different needs. A skilled third party has to be able to ascertain the differences and similarities between the parties perceptions and look for and find common ground.

Common ground is an interesting term in our field. Common ground forms a foundation of a relationship a sharing in interests. As disagreement grows into conflict and conflict into dispute, gaps and disconnects are formed in the relationship and a skilled third party has the ability to enable the parties in filling the gaps, close disconnects, and re-establish harmony. A key third party skill is an ability to listen to parties explain their problems in terms of interests, issues, and needs. One way to demonstrate this understanding is through the formulation of a common problem statement.

If Buyer and Seller in our car purchase example were to engage in a mediation a problem common problem statement might look like the following:

Buyer your issue is with the performance of the car – unintended acceleration and in order to resolve your issue you need a “fix”.

Seller your issue is that you have not been able to reproduce an instance of an unintended acceleration in Buyers vehicle and your need to actually see an actual instance of unintended acceleration to objectively confirm the problem through testing.

By using the problem statement I am not making a judgment. I am putting forth my understanding of Buyer’s and Seller’s perspectives on an issue impacting their respective interests and influencing their behavior toward each other.

Can you see the power of a common problem statement? It clearly shows the similarities and differences between Buyer and Seller. One difference is that Buyer perceives the problem is ever so real. Seller wants objective evidence from its own sources. A similarity may lie in a “fix”. But before I get further ahead of myself or you grow tired of reading this blog let me end this entry here.

Use of commonly used terms via example

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Having provided definitions let’s share and test ourselves in our ability to recognize and use the terms through an example.

Consider a Dealer or Seller and Byer involved in a car purchase transaction. Seller wants to sell a car at a profit. For the buyer price is also important but in a different way. Buyers love a bargain. A contract is signed for purchase of the car. Buyer drives out with his new car. Seller banks the money. Their interactions have just begun. There are warranties, both stated and implied. While driving Buyer experiences what they think is unintended acceleration. Buyer goes back to the Seller who tries to reproduce the condition. Seller fails to find anything wrong. There is a difference of opinion, a debate. Seller gives buyer a free car-wash. The end result is Buyer takes the car back on the road. Over the next several weeks others in the household believe they too have experienced unintended acceleration. Buyer feels threatened. Buyer returns to the dealer. Seller runs a more thorough series of checks including a driving test, once again finds nothing, and tells the buyer that with all the publicity about unintended acceleration with another car company in the recent past its natural to be over-sensitized. Buyer feels they have no choice. On the way home buyer notices that severe break action is necessary to keep the car from hurtling forward while stopped at a red light. At the same time Buyer observes the rpm indicator is running at a very high level. This time the Buyer strongly opposes Dealers assurances they can find no identifiable problem. The buyer insists the dealer takes action to correct a problem while Seller, based on tests conducted to date, denies there is any problem.

Can you identify which of the terms we defined in the definitions blog can be applied to the above case and where? Here’s my partial list, from a Buyers perspective.

Interests - Buyer benefits by buying a car at what he believes is a reasonable price while Seller is satisfied with the profit.

A Relationship between Buyer and Seller is created in the sale of the car and the warranties which come with the purchse

Agreement is reached when Buyer and Seller have agreed on the sale of the price and a level of harmony is reached between the two.

Disagreement occurs when Buyer and Seller debate whether or not there is an unintended acceleration problem.

Avoiding conflict by the attempted by Seller when he provides Buyer with testing results and a free car wash.

Conflict occurs when Buyer returns the second time based on reports by household members they too experienced unintended acceleration. There’s now a threat to Buyer and his household members safety.

Dispute occurs when the Buyer strongly opposes Sellers test results. For Buyer the debate is over, the threat is now so real, he needs not only acknowledgment of the problem but also a “fix”.

Do you agree with the above? Do you have other examples of how the terms we listed in the definitions blog to add?

What’s the point of defining commonly used terms and the above example?

We’ll address those questions and more in a subsequent blog entry.

Definitions - in context of this blog

2010-02-21T19:17:00.000-08:00

We’ll start and continue this blog by forming its foundation around definitions in the context of the subject matter. The terms will be commonly used in the blogs which follow. This is my first attempt at creating a tailored list. We will periodically refine, expand, and update this list. As you’ll see over time, some of the terms can themselves generate blogs, examples, and discussion to explain their meaning in the field of conflict resolution.

Dispute is an issue within a relationship which has grown to the point a persons need creates strong opposition from other people in a relationship.

Conflict is an issue which creates a perception of a threat to an interest.

Disagreement creates a difference of opinion in a relationship.

Agreement creates mutual harmony for people in a relationship.

Collaboration is a process of working together.

Interest is something that provides us with a benefit.

Issue is a point in a relationship impacting an interest.

Need is a want or requirement lacking in a relationship created by a conflict over an issue between people.

Relationship is a state created by and between people in which there are mutual dealings which can be in a business with business, business with client or customer, or interpersonal context.

Avoid is what people do to keep away from conflict.

Prevent is what people do to keep conflict from happening.

Resolve is an agreement in which people mutually conclude needs have been met, an issue closed, and in an acceptable way to them, an interest satisfied.

Impasse is a term we stay away from other than to say it is, a state in a relationship in dispute in which the people involved have not yet quite figured out how to resolve their issues.

What are we going to discuss in this blog

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We know that in any human endeavor involving more than one person there are going to be disagreements. It is in our nature. We have differing perspectives, interests, issues, and needs. We're imperfect communicators. We have different personalities. We all have emotions. We're individually unique. The challenge is to deal with disagreements so they don't become conflicts and conflicts into disputes. In this blog we will inform, educate, and promote processes and techniques by which we can prevent, avoid, and resolve conflict peacefully, giving relationships a chance to survive, (and as stated by one of my colleagues) turn conflict attitudes and behaviors into resolution attitudes and behaviors. We'll try to be conservative on the number of words and use many examples to make our points. My research into this area will be internet based unless otherwise indicated. .

You'll hear an awful lot about mediation, quite a bit about facilitation, and some about arbitration but very little about litigation. Although we acknowledge advocacy for a cause and a win lose result from litigation we believe that in many cases litgation is a last resort.

Join us in this journey by subscribing to this blog and submitting feedback, questions, and comments.

Aloha to my blog site

2010-02-19T15:32:00.000-08:00

Aloha:

I am so happy you stopped by to visit my new blog site.

This site is dedicated to preventing, avoiding, resolving conflict and moving away from a conflict to a resolution culture!

I hope you will make this site one of your favorites.

I have two other blogs wherein I discuss various issues in the conflict resolution arena:

http://email.mediate.com/blogs/leoblog/

http://email.mediate.com/blogs/mediatewithkh/ (includes "legacy" entries)

What I do on this site is to more extensively cover a particular subject than I do on my weekly or so entries in the other blogs.

I'm open to "chats" on this web site even if it isn't a real "chat room". Send me your feedback!

Have a conflict free day!