Friday, March 21, 2008

Stupid Mediator Tricks (2)

One of the justifications of mediation with a neutral over straight negotiation between two parties is the ability of the mediator to reduce strategic behavior. That is, if in a negotiation without a mediator a party is engaging in negotiating tactics that are frustrating the settlement process and the other party objects, then the conflict simply moves to the meta-level of whether the negotiation is proceeding in good faith. If a mediator calls a party on the carpet for engaging in divisive tactics, preferably in caucus, the mediator's impartiality can have greater effectiveness.

But, of course, all parties use negotiating tactics that seek to promote their own welfare in every mediation, and the mediator has to be alert to not only recognize strategic behavior, but also to be frugal in calling timeouts over the overly self-interested negotiator. No one likes a nag, and a mediator loses all moral authority if the mediator nags to no effect. What to do?

Part of the mediator's responsibility is to have the parties not only identify their own interests and objectives (and understand how the current conflict is denying them the ability to achieve them), but also understand the other party's interests and objectives. If a party understands the other party's interests and objectives, a party can understand how the conflict is a joint problem, in which any proposal must not only advance the party's interests but also satisfy the other party's interests. The parties are connected by a conflict, which is a social bond as much as any other.

Sometimes, I will ask a party, whether in caucus or in open session (although usually first in caucus) "How does that proposal (or statement, or question etc.) solve our common problem?" The usual answer, which need not be spoken, is that it doesn't, it merely advances the party's own self-interest. If I get the sense from the opening statements that the parties are too entrenched in advocacy mode (say 10 out of a scale of 10, rather than the normal 8 out of 10), I will use the "summing up" mediation tactic in open session, in which I try to replay back to each party what I heard each party say, but I will try to massage my reading with an interpretation that identifies certain interests as shared interests, and the conflict as a common problem. Then I will finish this summation with the question, "I am now interested to hear how we are going to solve our common problem."

Usually this invites slightly pained expressions from the parties. But as my high school athletic trainer used to say, "If it hurts a little, that's good!"


Friday, March 14, 2008

Pity the Poor Misunderstood Mediator

I have been thinking some about the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report, which I have reviewed in prior posts. Boiling things down a bit, the most interesting finding is that, generally, users want mediators to be more active, prepared and willing to venture from facilitator to evaluator. Maybe there is a fundamental misunderstanding among users concerning the role of the mediator in the practice of the art of mediation.

Of course mediators are more than willing to be active, but mediators are sensitive to the risk of being too active, which would impinge upon a central tenet of mediation, party self-determination.

Likewise, mediators are professionals who enter mediations having read party submissions and prepared with an understanding of how the clients have described the conflict. Mediators also often have subject matter expertise that they can bring to bear to provoke a thoughtful consideration of issues raised by the conflict. But mediators understand the risk that that they can be over-prepared. Mediation is, in many ways, a performance piece in which the parties themselves are the central actors. It is the performance, the give and take of the actual negotiation, which yields the settlement, and mediators should not rely too much on papers prepared in advance by the parties. These papers are still "fight" pieces prepared by the parties in advocacy mode before the mediation begins, and the mediator does not want these position papers to take a greater importance than the clues and openings that can be summoned once the negotiating process begins. Pre-mediation papers are never prepared in a collaborative manner, and I can't tell you how many times I have received feeble attempts to comply with my request to set forth in these papers a confidential statement of what a party would accept as a reasonable compromise.

As for facilitative versus evaluative modes of mediations, I find that I try to do what I think the mediation needs. Mostly, I facilitate, using whatever techniques I can think of to get parties to think in terms of solving a joint problem, as opposed to winning a joust (yes, even stupid mediator tricks). But here's the key for me: I tend to find that the surest sign that I am floundering in a mediation is when I start to become more evaluative. When I offer my evaluations, or succumb to the request to provide them, I am forcing the mediation, trying to accelerate movement, not focusing on the parties' interests and objectives enough to help the parties recognize and claim common ground.

So pity the poor misunderstood mediator who is just trying to be a mediator, and not a hero.


Sunday, March 9, 2008

Stupid Mediator Tricks

David Letterman uses stupid pet tricks on his show. I have been thinking that some of the mediation tactics I have been using amount to "stupid mediator tricks," in the sense that like Dave's pet tricks, sometimes they work and sometimes they don't. Here's my stupid mediator trick with respect to opening statements.

Parties generally like to open with opening statements, so I let them do it. It lets each party have its say, it gets things going with a statement, whether clear or not, of the nature of the claim and how the parties see things differently, and it is a way for each party to start to listen and hear each other....or not.

I find that too often, each party is too impressed with the need to get its point of view out there, and not impressed enough with the need to hear what the other party is saying. So, I tell each party before they proceed with their openings that I want them to take out a piece of paper, listen to the other party's opening statement, and write down the most important thing that they think the other party is trying to communicate, and whether they heard anything new. I have each party exchange their reactions to the opening statements after the openings are made. Then I ask each party whether the other party gets it.

It is an exercise in listening appended to an act, the opening statement, which is too often viewed as an exercise in speaking only.


Sunday, March 2, 2008

Mediation Quality Task Force (Mediator Persistence)

I have posted on the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report and its first three findings, Mediation Preparation, here, Case-by-Case Customization, here, and Mediator Analytical Techniques, here. In this post, I will review and comment upon the report's fourth finding, Mediator Persistence. As with Mediator Analytical Techniques, it is interesting to note that mediation users expect more of mediators than many mediators normally conceive of their role.

All mediators would regard persistence as an important mediator virtue. Indeed, as the task force report puts it, users don't expect mediators to act like a "potted plant," and all mediators would agree (although one can see mediators cautioning users that sometimes listening is an important prerequisite to mediator intervention, and that they can hold off with the watering can for awhile). Users characterize mediator persistence as follows: "trying to keep people at the table, trying to get the case settled by exerting some 'pressure,' and trying to get people back to the table after a mediation session fails to settle the case...Eighty-two percent (82%) of users thought 'exerting some pressure' was an important trait, very important or essential for a mediator to be effective."

I have found that applying pressure often only raises the frustration level arising from an impasse in settlement discussions. A party may want a mediator to apply pressure against the other party, but against the party itself and its counsel, not so much. I am not counselling against pressure by any means. A mediator can apply pressure and maintain neutrality as long as the pressure is applied even-handedly and on a principled basis. But the real question is, how to apply pressure effectively, with respect to the right issues, against the right party, and at the right time.

I have found that every mediation contains a pivot point; an issue that both parties understand to be crucial and with respect to which one party more than the other has the capacity to address. This does not mean that any party wants to make a move at the pivot point, but rather that if the mediation is to become successful, the best pressure that can be applied is to focus on the party that "controls" the pivot point.

There are many impasse-breaking tools that a mediator can use, such as a conditional offer in a caucus (what would you want the other party to offer you if I tell them you might be able to offer X?). But listening, waiting for, and finding the pivot point and the party in the best position to address the pivot point issue is a prerequisite before the mediator dials up the pressure gauge.