Innovative Conflict Resolution

A few evenings ago I struck up a conversation with a gentlemen at a social function, and the obvious topic arose of our occupations. At the mention of “mediator” he said, “Oh, do you know Judge so-and-so?  When I was a property appraiser, we mediated many condemnation cases with him.  We’d each lay out our positions, and then he’d make his decision.”

I knew there was no point in engaging him further on the subject, so let it slide. But, in my mind I instantly thought, “That’s not mediation.”

Unfortunately, most people – even many attorneys – don’t have a good sense of what mediation really is, or could be, because in the world of litigation and judges, the concept of mediation is too often blurred with the old-style settlement conference, in which Judges typically do anything they can for force parties to settle a case, thereby easing the Judge’s workload and clearing his courtroom.  Judges, oddly enough, usually don’t like trials; in the language of conflict styles, they would be practicing Avoidance. They prefer empty, peaceful courtrooms.

Lawyers, as I mentioned, must learn about mediation from Judges and these types of settlement conference experiences, as this is what they typically expect.  Yesterday I was looking at the website of a litigation consulting firm that among other services, will assist in preparing strategies for trials as well as mediations.  I was surprised to find that they maintained the same concept of mediation.  Their focus was to prepare the case for presentation at a mediation, in order to convince the mediator of the strength of that particular case.

Once again, that’s not mediation.

I understand this perception, however, as this was my perception as well after participating in hundreds of mediations up and down the West Coast.   The reality is, this type of process – where the judge or mediator takes sides and forces parties to settle – short-changes the parties.  It may resolve the immediate situation – that is, close the case – but it often can leave the parties unhappy and with very sour tastes in their mouths about the whole process.  And, in situations that involve real people with real relationships, the issues behind the issues will seldom be resolved.

The job of a mediator is not to take sides or force a settlement; it is to assist the parties in problem-solving. A good mediator will understand this and look for the real problems, the interests that lie beneath the presenting issues.  A good mediator will understand that sometimes a quick resolution is not always the best option.  A good mediator will recognize that a real resolution will mean that the parties have to have the major part in the process, and must own the process as well as the resolution.

Manipulation and coercion may work to close a case, but that’s not mediation.  If you are a party to a dispute and you’re seeking assistance in getting it resolved, you deserve better.

Depending upon the situation, you have a couple of options.  One, you can seek the help of a traditional mediator, who will take a neutral role and work with the parties to facilitate communication and understanding, and assist you in finding a “win-win” resolution.  Alternatively, you can seek the help of a conflict coach, who rather than being neutral (not on anyone’s side), takes the position that he/she is on everybody’s side.  A coach will also facilitate communication and understanding, but will assist each party to be better understood, better able to communicate their thoughts, and better able to deal with the other parties.  This option is especially valuable for disputes within groups who will continue to work together, and it provides tools for dealing with future conflict situations.

Even in situations where you are court-ordered to a settlement conference or mediation, remember: not even a judge can force you to settle (of course, if a case gets to trial or arbitration, it may be out of your hands).  You have a right to seek mediation with a mediator who understands that there is often more to a dispute than the issue at hand.

I love to hang out at Starbucks and write – in fact, I’m sitting at Starbucks as I write this.  As I left the house, I joked to my wife, “I love going to Starbucks because everyone there likes me.” My son, a marketing major, has been telling me about commercial friendships and marketing. Apparently Starbucks, as well as other retailers, trains their employees to get to know their customers, to learn names, favorite drinks, and a few simple details about their lives.  Like the old TV show Cheers, Starbucks has become a place “where everyone knows your name.”

The downside is that apparently people can become confused, and forget what real relationships are like.  Much of my life was working in a company were many of the people I dealt with wanted to sell me some service; I was routinely offered lunches, dinners, baseball tickets, and so on.  Would these people invite me home for dinner?  Aside from one or two people I did actually become friends with, no.  These were “commercial friendships,” friendships developed with a business goal in mind. I could tell the difference – and besides, many of them I wouldn’t have chosen to be friends with anyway.

However, this kind of consistent attention can be deceiving.  When someone seems genuinely interested in your life, your family, your likes and dislikes, it’s hard not to start to think they actually care about more than just getting your business. Perhaps they do really like you; but would they invest in a relationship even if they wouldn’t profit commercially?  As depicted brilliantly in an old episode of Seinfeld, the real test of friendship is being asked to drive someone to the airport. Who would you call – your mechanic who tells you jokes every 3 months when you bring your car in for an oil change, or perhaps the girl who makes your extra-hot lattes every morning?  What about your family doctor, or  your accountant?  If you did ask any of these people, you’d soon find out just what “commercial friendship” really means.

As my son has related to me, a common consequence of these wonderful commercial friendships (they are not necessarily bad things;  certainly better than dealing with mean, unfriendly people) is that people then tend to get frustrated when they have to deal with “real” life.  Kids will argue and disobey, spouses will disagree with you, and neighbors will continue to be un-neighborly.  Real 3-dimensional relationships – those which also include conflict – are often not as pleasant as those shallow but peaceful commercial friendships we develop.   If we lose the ability to distinguish between or confuse the expectations of “real” and “commercial” friendships, I have a feeling our ability to maintain a healthy relationship of any real depth will suffer.

Conflict, you see, is foundational to every real human interaction.  In commercial relationships, any sense of conflict is downplayed.  If “the customer is always right,” what happens when the customer is really wrong?  No one but a friend is going to tell you that you have a goofy haircut.  The car salesman won’t tell you that you really can’t afford the car you’re buying.  Your waitress won’t tell you to order the low-calorie plate.  Only people who care about you will step into that area known as conflict – an uncomfortable area for most people – for your own good.

There is no personal growth without conflict.  Commercial friendships are like the Magic Mirror who tells us we are “the fairest in the land,” even when it knows darn well we’re in need of a makeover.  We all like the Magic Mirror; but, in reality we need people who will risk a bit of conflict so that we are challenged and stretched.

But what happens when people – enchanted by the proliferation of magic mirrors in the land – forget what little they knew about handling conflict?

Analogous, perhaps, to the breakdown of the family (where the deepest relationships, and the most conflict, generally resides), the loss of conflict management skills has a very negative impact on society.  How do we resolve differences if we are unable, or unwilling, to deal with them?   Without engagement on more than a surface level – i.e., conflict – we will cease to grow as individuals, and as a society.  If non-conflict relationships become normative in the workplace, business itself will eventually suffer.  Without conflict, any team will become less productive.

As I have written before, interpersonal conflict is natural.  Conflict will happen, whether we like it or not. However, without developed conflict skills, conflict will tend to move into the unproductive category, and may actually be destructive, where outbursts of pent-up frustration and anger become the norm.

If it’s true that commercial friendships are eroding the overall quality of relationships and we are losing our ability to deal with conflict productively, then those who understand and are not afraid of conflict will be well-poised as leaders, and organizations who can instill productive conflict management skills in their members will naturally find themselves ahead of the pack.  This, I believe, is true at any time, but even more so in an age dominated by commercial friendships.