Innovative Conflict Resolution

There seems to be a rule in many households (like ours) that leftovers are not to be thrown out until they’re moldy or otherwise inedible.  We will leave the container for several days, telling ourselves that “someone will eat this,” but knowing full well that in reality, no one will.   Eventually, circumstances will make the decision for you.

Most people deal with conflict like they deal with leftovers:  They know it’s there; they can see that it will become a smelly, rotten disaster.  Where the situation could be salvaged and potentially turned into something positive, inactivity allows conflict to get to the point where an expert needs to be brought in.  Conflict is, in deed, a lot like leftovers.  Neither one just goes away on its own, or improves with age.

Agree to disagree?

Whenever you have a group of people working together, you will have conflict.  Even when you have reached consensus on an issue, there’s a good chance that there are sufficient differences in perspective that some amount of disagreement still exists.  If your discussion was handled well, you have discovered the areas of disagreement, and all parties are satisfied that the areas are insignificant, or that they will be dealt with in some manner.  If, however, consensus was reached without dealing with the remaining issues, they could grow and fester and cause problems at some point down the road.

Plan to disagree

Knowing that there will be disagreements within any relationship (the more people involved, the more potential for disagreement), it makes sense to acknowledge this within the group, and establish guidelines for discussion that diminish the potential that these pockets of disagreement – that will exist – will be able to be dealt with in a positive manner.

Leftovers, whether in the fridge or in relationships, are best not ignored.  What’s in your fridge?

Today John Kenyon posted a list of mediation jokes at the Mediate.com site. Most of them weren’t that funny, and as he points out, might not be funny at all to people who didn’t understand mediation principles and language.  The following joke is worth repeating here, but not because it’s funny. Rather, it makes a very important point about the value of mediation and conflict management skills:

A mediator is very pleased the way a complicated commercial mediation is going as over the last few weeks the parties seem to be getting along better and better. But she is concerned that they never seem to get to a final agreement and keep adding new problems. Finally after several more sessions she confronts one of the parties. “I have noticed that every time we get close to a final agreement it falls apart – is this a problem for you?” “Oh no.” he replies “None of us want an agreement. No one wants to stop. You see we are able to get things done in mediation we couldn’t do otherwise.”

While this scenario would be completely frustrating to a resolution-oriented mediator (“the only good conflict is a resolved conflict”), to many of us hearing the above punch line in a mediation would prompt a response of, “Yes! They’re getting it!”

As I’ve pointed out before, often a quick resolution of the presenting issue would leave the underlying issues/interests unresolved, and not provide the parties with any new skills to use for the next conflict.  Mediation has the potential to be an informational and transformative process in which the parties gain a better understanding of each other and themselves, and in which larger issues can be addressed.

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.

Because of my background resolving litigated insurance claims, my experience with mediators was that they were almost exclusively attorneys, and often ex-judges to boot.  In fact, I was somewhat taken aback when I first learned that a particular mediator was not, in fact, an attorney.  I was assured, however, that “he was still a good mediator.”  While I am not an attorney, my 20+ years experience as an advocate, working closely with attorneys on a daily basis, did influence my thinking considerably, even to the point where I would not have considered myself qualified to act as a mediator.  (This, obviously, has changed!)

My perspective today has changed significantly, as I have learned more about mediation theory and have met many fine mediators who do not have law degrees.  I also understand now that mediation can be – and I think should be – so much more than what I typically experienced.

Asking the question, “Should mediators be attorneys?” is not meant to imply that attorneys can not make fine mediators.  I know a great many fine attorney-mediators, people I greatly respect. I also know many for whom I have very little respect.  Perhaps the question can be rephrased, “Is being an attorney irrelevant to being a mediator,” to which my answer would be an emphatic “yes.”  Unfortunately, in some states it has been legislated that a mediator must in fact be an attorney to appear on a court-approved list, which greatly limits the opportunities for non-attorney mediators.  The public, I believe, suffers for this.

An article on the Mediate.com website states:

The rationale for requiring a law degree and legal experience rests on two assumptions. First it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented.

The article goes on to point out that “mediation is not a natural extension of the practice of law.”  In fact, the two roles are often not compatible at all.  Most attorneys are  advocates; that is, it is their job to act solely in the interest of their clients.  They are by training and habit inclined to take sides and focus on legal issues that support their case. While a good attorney will be able to see both sides of any dispute,  being immersed in one side of a dispute often hinders their ability to be objective.

A mediator, on the other hand, is committed to being impartial: he is not to take sides, and is not to make judgments that will impact his impartiality.  It is often difficult for an attorney, who is used to specializing in either plaintiff or defense cases, to lose his or her habit of advocacy.   Consequently, many attorney/mediators continue to lean either to one side or the other – either plaintiff or defendant.  When choosing mediators, attorneys will look for those with the appropriate experience, not only to understand the case, but who would tend to take the appropriate position and subsequently put greater pressure on the other side.

As the above-referenced article also points out, attorneys also tend to focus on the facts and the legal issues involved; that’s what attorneys do.  A mediator, however, is not necessarily focused on getting a resolution that he/she thinks is the right one, but is rather focused on getting the parties to come to an agreement with which they are both satisfied, and optimally, one which is considered “win-win.”  Mediation is ideally a collaborative process, not one in which parties are pressured to make a deal.

I don’t know how many times I have heard mediators (who are/were attorneys or judges in past lives) remark that if both sides are unhappy with a settlement, then it was probably fair (this is said to encourage the grumbling parties as they leave the mediation).  What this tells me is that the mediator looked at the mediation as a “zero-sum” situation, where the only “fair” result is that neither party gets what they want.  The parties were probably never given an opportunity to explore creative, potentially win-win options, and were put in positions where the best they could do was lose half-way.

Again, many attorneys are both willing and able to embrace the significant paradigm shift from advocate to neutral.  However, the attorney skill-set is not the ideal skill-set for a mediator. While nothing should preclude an attorney from becoming a mediator, there is also no reason why it should be necessary for a mediator to also be an attorney.

The other day I came across a great little article on About.com under “stress management,” called Ten Conflict Resolution Mistakes to Avoid.   While it’s fairly brief, it was too good not to share.

These are 10 very common mistakes that people make in daily interactions with family, friends, co-workers and even strangers; the tips in the article are useful in many situations, not just when you’re trying to resolve conflict.  Some may actually prevent conflict.

I realize that preventing conflict is taking potential business away from mediators, but hey – I’m just trying to help.