Life as an attorney teaches some firm and hard-won lessons. Be assertive! Advocate! Never let the other side get away with anything! And of course, when representing a client in mediation, the same rules should apply – right? Well, not always. Too many times I’ve seen highly skilled attorneys run a mediation right into the ground, simply because they are unable to table their agendas long enough to understand what their clients really seek to gain from the alternative dispute resolution process.
It’s not really our fault. Law school and law practice teach us to be zealous, guarding our client’s interests from attack and launching our own offensive at the same time. But at its core, mediation is about collaboration. In order to build an effective agreement, there must be a baseline of trust and respect between the parties (and between their attorneys). This can be difficult in a case that has already entered litigation, but then how much more vital is it for the attorneys to set the collaborative example for their clients? And don’t forget (should the mediation take a turn your client cannot abide) – each side always has the option to walk away from the mediation table – but conversely, all parties should enter the mediation room in a good faith spirit of negotiation.
The best advice I can give an attorney representing a client in mediation is this: have a candid conversation with your client about their goals, determine where they are comfortable with compromise, and ask your client if there are any non-negotiable items. Ask for breaks from the mediation as needed to check in with your client. Let your client speak if they are comfortable with voicing their own concerns. Brief your client on the collaborative nature of mediation, and encourage them to enter into the process in good faith. Fully and honestly brief the mediator about your client’s stance, and indicate what information should remain confidential. And, perhaps most importantly, lead by example. Mediation is a personal process that has great power to resolve conflict – if it is allowed to be personal.
Thursday, December 15, 2011
Tuesday, September 6, 2011
Flexibility as Virtue, Not Weakness
In our highly individualist society, we are taught from a young age to stand up for ourselves, to fight for what is ours, and to stand our ground. Early lessons about sharing quickly go out the window as we learn to accumulate and compete. As a result, many of us feel weak when we compromise or allow another person to "win." However, in a mediation, those who find that they can share often emerge as the most satisfied participants.
I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.
How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.
Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.
Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.
I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.
How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.
Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.
Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.
Friday, July 29, 2011
Suspending Judgment: Respecting Client Autonomy
I recently met with a couple. They came to see me at one partner's request - Partner A desperately wanted to get out of their marriage, while Partner B was in total denial that A really wanted to leave them. Over the course of our meeting, I witnessed A's extreme distress, and B's repeated attempts to emotionally manipulate A into staying with B, despite A's stated misery.
We met for two hours, at the end of which I thought B was starting to understand A's perspective. We set a meeting time for two weeks later. The next week, I received a short email from A telling me that they were getting back together. My initial reaction was shock. It was all I could do to keep myself from calling A to ask what had changed their mind so completely, but I forced myself to sit still and respect A's stated wishes. I wrote back, wishing A the best of luck.
As a mediator, this was an extremely difficult action of restraint, and another excellent reminder that I must table my own judgments in order to better serve my clients. I met with this couple for several hours. They had a much deeper insight into their internal dynamic than I could ever have. What looked like emotional abuse to me may not have been that at all. On the other hand, it may have been exactly that.
However, I need to afford A the respect they deserve as a competent adult to make their own decisions, without my own assessment of the situation clouding any outcome. As a mediator, I'm not pushing any agenda (certainly not my own), and I can't facilitate a conversation that the parties do not want to have. I sincerely wished them the best of luck with their marriage, and I did so with a clear conscience, knowing that I did not allow my judgments to stand in their way.
We met for two hours, at the end of which I thought B was starting to understand A's perspective. We set a meeting time for two weeks later. The next week, I received a short email from A telling me that they were getting back together. My initial reaction was shock. It was all I could do to keep myself from calling A to ask what had changed their mind so completely, but I forced myself to sit still and respect A's stated wishes. I wrote back, wishing A the best of luck.
As a mediator, this was an extremely difficult action of restraint, and another excellent reminder that I must table my own judgments in order to better serve my clients. I met with this couple for several hours. They had a much deeper insight into their internal dynamic than I could ever have. What looked like emotional abuse to me may not have been that at all. On the other hand, it may have been exactly that.
However, I need to afford A the respect they deserve as a competent adult to make their own decisions, without my own assessment of the situation clouding any outcome. As a mediator, I'm not pushing any agenda (certainly not my own), and I can't facilitate a conversation that the parties do not want to have. I sincerely wished them the best of luck with their marriage, and I did so with a clear conscience, knowing that I did not allow my judgments to stand in their way.
Thursday, May 5, 2011
Directive vs. Facilitative: Why Your Mediator’s Approach Matters
Many mediators subscribe to a certain mediation style, and it behooves any of us looking for an appropriate mediator to learn a little bit of mediation vocabulary in order to know what we can expect. This new understanding will help to discern which mediator best suits your goals and preferences, and also assist you in assessing whether or not the mediator’s style will help or hinder an appropriate resolution of the problem at hand. And now, without further delay, the two main schools of mediation styles:
1. Directive
The directive style involves, as one might imagine, a more directive approach. Mediators who subscribe this philosophy take a more active role in the mediation. They may take charge altogether, highlighting the issues they perceive to be the most important. They may also suggest solutions, emphasizing their own perspective and experience. Directive mediators (and their experience) can add tremendous value in cases where technical issues are important to the parties, but they operate in a gray area that lies somewhere between mediation, arbitration, and more traditional methods of dispute resolution (e.g. litigation). Others guard the process carefully and navigate their mediations with great dexterity. Many directive mediators are former or current attorneys with decades of experience in the courtroom. They bring with them a wealth of experience and knowledge. However, any prospective client should be aware that the process might be less client-centered. Clients should be prepared for this shift, and speak if they are uncomfortable.
2. Facilitative
The facilitative style centers around the client(s), as opposed to the mediator. A facilitative mediator will let the clients drive the process, though the mediator is there to provide structure. Clients have both responsibility and power in a facilitative mediation; they need to ask questions, actively participate, and be prepared to negotiate with each other. The facilitative mediator will guide clients, but they will not direct them. The clients determine the relevant issues for discussion and collaborate to construct an agreement that meets their needs and goals. The clients must engage with each other and the mediator. A facilitative mediator should have the tools and knowledge to answer substantive questions their clients may have, but they will not volunteer this information is order to sway the clients in any given direction, nor will they offer their opinion as the guiding principle for decision-making.
3. Hybrid
Most mediators use some combination of the facilitative and directive styles, but it is vital for potential mediation clients to understand the mediation philosophy of their mediator.
Mediation is an alternative dispute resolution process precisely because it allows parties to creatively construct their own solution, within the scope of the law. Choose your mediator carefully, and take the mediation seriously. That way, everyone wins.
1. Directive
The directive style involves, as one might imagine, a more directive approach. Mediators who subscribe this philosophy take a more active role in the mediation. They may take charge altogether, highlighting the issues they perceive to be the most important. They may also suggest solutions, emphasizing their own perspective and experience. Directive mediators (and their experience) can add tremendous value in cases where technical issues are important to the parties, but they operate in a gray area that lies somewhere between mediation, arbitration, and more traditional methods of dispute resolution (e.g. litigation). Others guard the process carefully and navigate their mediations with great dexterity. Many directive mediators are former or current attorneys with decades of experience in the courtroom. They bring with them a wealth of experience and knowledge. However, any prospective client should be aware that the process might be less client-centered. Clients should be prepared for this shift, and speak if they are uncomfortable.
2. Facilitative
The facilitative style centers around the client(s), as opposed to the mediator. A facilitative mediator will let the clients drive the process, though the mediator is there to provide structure. Clients have both responsibility and power in a facilitative mediation; they need to ask questions, actively participate, and be prepared to negotiate with each other. The facilitative mediator will guide clients, but they will not direct them. The clients determine the relevant issues for discussion and collaborate to construct an agreement that meets their needs and goals. The clients must engage with each other and the mediator. A facilitative mediator should have the tools and knowledge to answer substantive questions their clients may have, but they will not volunteer this information is order to sway the clients in any given direction, nor will they offer their opinion as the guiding principle for decision-making.
3. Hybrid
Most mediators use some combination of the facilitative and directive styles, but it is vital for potential mediation clients to understand the mediation philosophy of their mediator.
Mediation is an alternative dispute resolution process precisely because it allows parties to creatively construct their own solution, within the scope of the law. Choose your mediator carefully, and take the mediation seriously. That way, everyone wins.
Monday, April 25, 2011
“Is Mediation Right For Me? How Should I Prepare?”: Helpful Tips on How to Prepare for Your Mediation - in the Divorce Context, or Otherwise
1. Does everyone want to mediate? This is essential. Make sure that all parties want to use mediation, and are committed to working through the process together with the mediator. Mediation is a very efficient, cost-effective method of dispute resolution, but it won’t work if the parties can’t have a conversation or be in the same room.
2. Be prepared to compromise. Everything will not come out 100% the way you want in your mediation. But you will walk away with an agreement that works for your family, your former business partner/landlord/client, and allows you to move on with your life while honoring your obligations. Take advantage of the tailored approach mediation offers – ask for things you really want and/or need, and be creative. Each item doesn’t have to split 50/50, but the overall picture should be equitable.
3. R-E-S-P-E-C-T. Time and again, I’ve seen clients work toward resolution by employing this one approach. I insist upon it in my mediations, and I find that if a party shows respect, more often than not they will receive it in return. When the person across the table feels that you are treating them fairly, they will be much more amenable to the construction of an agreement that includes things you want, too.
4. Speak your mind (but don’t interrupt)! Mediation, when done well, is a beautiful thing – but if things are headed in a direction with which you don’t agree, you have an obligation to speak. The agreement won’t last if it’s impossible for you to truly subscribe to it. However, when speaking your mind, remember tip #3, and don’t interrupt.
5. Be honest. The Court requires disclosure forms for a reason (in divorce cases). If you fudge your assets, the whole agreement could be invalidated. But this tip holds true for all types of mediations. You’re collaborating. Don’t let your actions hinder collaboration.
6. Try to be empathetic. Divorce is hard. Really hard. You thought you were going to spend the rest of your life with this person, and it turns out that’s not the case. It’s horrible. But the thing to remember here – and this is important – you’re both in a lot of pain. The more kindness you can show to the other person, the more likely they are not to hate you when this is all over. And if you have children, that’s vital. If you don’t, it’s still pretty great. In non-divorce mediations, the stakes are perhaps less emotionally high. But perhaps not. You entered into an agreement to work with this person because you believed it would be a profitable enterprise. Things didn’t work out – you’re disappointed? So are they. Strive to let everyone walk away with their dignity and you may be surprised with what they will offer.
7. Choose the right mediator. You’re going to be spending a chunk of time in the same room, and this person is responsible for crafting an agreement that reflects your decisions. Choose a person whom you trust, who takes the time to get to know you. Often, the best way to get a sense of a mediator’s style is to look to their former clients. Look for client testimonials, or yelp.com reviews. Are they on court panels? Where did they train? Do you have a good rapport with them? Can you afford their services? Many organizations offer low-cost mediation – the Bar Association of San Francisco is one of them.
Follow these tips, and your mediation is sure to be much smoother - but remember the most important thing: keep an open mind!
2. Be prepared to compromise. Everything will not come out 100% the way you want in your mediation. But you will walk away with an agreement that works for your family, your former business partner/landlord/client, and allows you to move on with your life while honoring your obligations. Take advantage of the tailored approach mediation offers – ask for things you really want and/or need, and be creative. Each item doesn’t have to split 50/50, but the overall picture should be equitable.
3. R-E-S-P-E-C-T. Time and again, I’ve seen clients work toward resolution by employing this one approach. I insist upon it in my mediations, and I find that if a party shows respect, more often than not they will receive it in return. When the person across the table feels that you are treating them fairly, they will be much more amenable to the construction of an agreement that includes things you want, too.
4. Speak your mind (but don’t interrupt)! Mediation, when done well, is a beautiful thing – but if things are headed in a direction with which you don’t agree, you have an obligation to speak. The agreement won’t last if it’s impossible for you to truly subscribe to it. However, when speaking your mind, remember tip #3, and don’t interrupt.
5. Be honest. The Court requires disclosure forms for a reason (in divorce cases). If you fudge your assets, the whole agreement could be invalidated. But this tip holds true for all types of mediations. You’re collaborating. Don’t let your actions hinder collaboration.
6. Try to be empathetic. Divorce is hard. Really hard. You thought you were going to spend the rest of your life with this person, and it turns out that’s not the case. It’s horrible. But the thing to remember here – and this is important – you’re both in a lot of pain. The more kindness you can show to the other person, the more likely they are not to hate you when this is all over. And if you have children, that’s vital. If you don’t, it’s still pretty great. In non-divorce mediations, the stakes are perhaps less emotionally high. But perhaps not. You entered into an agreement to work with this person because you believed it would be a profitable enterprise. Things didn’t work out – you’re disappointed? So are they. Strive to let everyone walk away with their dignity and you may be surprised with what they will offer.
7. Choose the right mediator. You’re going to be spending a chunk of time in the same room, and this person is responsible for crafting an agreement that reflects your decisions. Choose a person whom you trust, who takes the time to get to know you. Often, the best way to get a sense of a mediator’s style is to look to their former clients. Look for client testimonials, or yelp.com reviews. Are they on court panels? Where did they train? Do you have a good rapport with them? Can you afford their services? Many organizations offer low-cost mediation – the Bar Association of San Francisco is one of them.
Follow these tips, and your mediation is sure to be much smoother - but remember the most important thing: keep an open mind!
Thursday, March 17, 2011
Once Burned: Restoring Clients' Faith In Mediation
As a mediator, it's extremely important to me to build a trusting relationship with my clients. It's imperative that my clients know they can rely on me to honor all of my professional commitments to them. I take this responsibility very seriously. From time to time, I will hear of a mediator who does not take this tenet of the profession quite so much to heart.
Recently, I received an interesting email from a prospective client. They were angry, and had just had an extremely negative experience with another mediator who had missed appointments, deadlines, and otherwise behaved unprofessionally in countless other ways.
While these prospective clients were skeptical that mediation could ultimately serve their needs, they decided to give the process one more chance. I had the mess this other mediator created dumped in my lap, and I decided to accept the challenge. I felt strongly that it was up to me to restore my new clients' faith in mediation and mediators. I resolved to give them the best possible service, and agreed to take their case.
Slowly, after steadily proving to them that they could trust me to honor my promises and commitments to them, we built a professional relationship with a strong foundation of trust. We carefully constructed an agreement that met their needs, and discussed issues of contention until both we satisfied. When their case was successfully resolved a few weeks ago, they both let me know that the experience, while trying, had been productive and as positive as possible.
I felt so honored to be able to shift their perception of mediation from a negative to a positive experience. Earning and retaining a client's trust throughout a mediation is always my goal.
Recently, I received an interesting email from a prospective client. They were angry, and had just had an extremely negative experience with another mediator who had missed appointments, deadlines, and otherwise behaved unprofessionally in countless other ways.
While these prospective clients were skeptical that mediation could ultimately serve their needs, they decided to give the process one more chance. I had the mess this other mediator created dumped in my lap, and I decided to accept the challenge. I felt strongly that it was up to me to restore my new clients' faith in mediation and mediators. I resolved to give them the best possible service, and agreed to take their case.
Slowly, after steadily proving to them that they could trust me to honor my promises and commitments to them, we built a professional relationship with a strong foundation of trust. We carefully constructed an agreement that met their needs, and discussed issues of contention until both we satisfied. When their case was successfully resolved a few weeks ago, they both let me know that the experience, while trying, had been productive and as positive as possible.
I felt so honored to be able to shift their perception of mediation from a negative to a positive experience. Earning and retaining a client's trust throughout a mediation is always my goal.
Tuesday, February 15, 2011
"Fairly Legal": Fairly Accurate?
Thanks to USA's new TV series about a San Francisco mediator, mediation as a profession is getting some unusual attention. But how realistic is the show's, and in particular, Kate Reed's (the main character) portrayal of everyone's favorite form of alternative dispute resolution?
Kate found her way to mediation the way many of us do - attorneys who no longer wish to engage in the often-trying world of litigation. We seek a new path where we can still use our legal knowledge, but in the spirit of collaboration rather than competition. So far, so good.
But Kate's mediation style is what some might call directive, if not downright unethical. She lies to her clients, misleads them, and bullies them into 'solutions' using threats of legal action and blackmail. She utilizes force, swears, and is perennially late for meetings. She visibly chooses sides, and works towards her own envisioned resolution (irrespective of what her clients want). Suffice it to say, this mediator thinks Kate Reed lacks a mediation style worthy of emulation. I would be loathe to employ virtually all of her, um, techniques.
Despite stock cliché phrases, usually preceded by "mediation is where/when/how....," the show has very little to do with mediation in practice. USA has succeeded in making a show that is perhaps most interesting for its brief glimpses of San Francisco (most of which, unfortunately, is stock footage), and for the farcical interpretation of the life of a professional mediator. Personally, I rely much more on my active listening skills in the mediation room, and I believe in maintaing an atmosphere of civility and collaboration. But then again, I'm not trying to market a television show, I'm working to build a longterm practice. The less drama, the better, from my perspective. Not so with cable TV.
Nonetheless, with a show about a San Francisco-based mediator on the air weekly, the odds are good I'll still be sucked into watching the occasional episode.
Kate found her way to mediation the way many of us do - attorneys who no longer wish to engage in the often-trying world of litigation. We seek a new path where we can still use our legal knowledge, but in the spirit of collaboration rather than competition. So far, so good.
But Kate's mediation style is what some might call directive, if not downright unethical. She lies to her clients, misleads them, and bullies them into 'solutions' using threats of legal action and blackmail. She utilizes force, swears, and is perennially late for meetings. She visibly chooses sides, and works towards her own envisioned resolution (irrespective of what her clients want). Suffice it to say, this mediator thinks Kate Reed lacks a mediation style worthy of emulation. I would be loathe to employ virtually all of her, um, techniques.
Despite stock cliché phrases, usually preceded by "mediation is where/when/how....," the show has very little to do with mediation in practice. USA has succeeded in making a show that is perhaps most interesting for its brief glimpses of San Francisco (most of which, unfortunately, is stock footage), and for the farcical interpretation of the life of a professional mediator. Personally, I rely much more on my active listening skills in the mediation room, and I believe in maintaing an atmosphere of civility and collaboration. But then again, I'm not trying to market a television show, I'm working to build a longterm practice. The less drama, the better, from my perspective. Not so with cable TV.
Nonetheless, with a show about a San Francisco-based mediator on the air weekly, the odds are good I'll still be sucked into watching the occasional episode.
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