Perspectives on Dispute Resolutionâ€”
Dispute Resolution War Stories
Multi-Tasking: The Art of Juggling Two Mediations at Once by Phyllis G. Pollack
My All-Nighter by Lynne Bassis
Bad Fences Make Bad Neighbors by Dan Simon 14
What a Plaintiff Really Wants by David Schlueter 18
On the Edge
Rising Above the Rest by Mikita Weaver 40
An Interview with Mediator Scott Van Soye, Esq.
The Broken Family by Jeffrey Krivis 8
Searching for Truth in a World Full of Lies & Misconceptions by Howard Stern
Can Your Organization Detect Conflict? by Zachary Ulrich
Featured Contributors Also in this Issue Message from the Editor 3 Phyllis G. Pollack
Upcoming Events 3 Straus Institute Celebrates 25th Anniversay 23
Top Tips: Avoiding a Boardroom Brawl
Message from the Editor We’re happy to announce the launch of our first print edition of ADR Times Perspectives on Dispute Resolution. This quarterly publication offers insight and commentary on content that is positively transforming the fabric of identifying and resolving conflict.
In our Fall 2012 edition, ADR professionals share their “Stories” about mediation ranging from Lynne S. Bassis’ absurd “all-nighter” to Jeff Krivis’ heart wrenching conflict in a small-town community. Phyllis G. Pollack shares a story about mediating two cases and the implications of such “multitasking.” Dan Simon talks about dueling neighbors and David S. Schlueter shares insights from a construction defect dispute. Also included in this issue is an interview with Scott van Soye, a lawyermediator focusing particularly in employment and disability cases, and the team at ADR Times is excited to recognize the Straus Institute of the Pepperdine University School of Law and its twenty-five years of service as an integral piece of our world’s evolving dispute resolution matrix.
ADR Times has morphed from an interactive blog into a vibrant dispute resolution community and trusted news source for unbiased journalism covering negotiation, mediation, arbitration, diplomacy and peace. We thank you for your continued interest and constructive comments in transforming our efforts to a collective project! z For more information or to submit an article please contact: Mikita Weaver / Editor-in-Chief email@example.com For more information on advertising opportunities, please email firstname.lastname@example.org www.ADRTimes.com (800) 616.1202
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ADR Times explores mediation, arbitration, negotiation, diplomacy & peace. Through print, web, email, and social media ADR Times publishes content on topics that are at the heart of dispute resolution -including articles, videos, news and debates, interviews, book reviews, and more.
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Upcoming Events - East Coast Professional Skills Program Straus Institute for Dispute Resolution Woodstock, VT / Sep 20 - Sep 22, 2012
- Arbitration Basic Consumer Training Manousso Mediation & Alterntaive Dispute Resolution Houston, TX / Sep 26, 2012 - Academy of Professional Family Mediations (APFM) 2012 Founding Conference North Falmouth, MA / Sep 27 - Sep 30, 2012 - Mediation for the Professional Center for Dispute Settlement Washington, DC / Oct 10 - Oct 13, 2012
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Multi-tasking: The Art of Juggling Two Mediations at Once by Phyllis G. Pollack
“Multi-tasking” took on a whole new meaning for me the other day when I conducted two mediations simultaneously-that is at the same time! Sounds strange, doesn’t it?
smoothly had opposing counsel been strangers to each other.) This round-robin continued as I went from room to room, trying always to keep neither the plaintiffs nor the defendant waiting too long.
It came about at the last minute. I had one scheduled for the morning but during the previous afternoon, defense counsel telephoned to advise that she had another matter with the same plaintiff’s counsel and asked if I would do the second one at the same time. I thought about it for a while. Two issues came to mind: the logistics, and whether I could do a good job. I emailed a colleague for advice and she advised against it (being a conservative soul). However, I love challenges. I like to mediate “dangerously” as some of my other colleagues would say. So I decided to do the double mediation if I could sort out the logistics. Do I have enough conference rooms? Will I be able to glide from room to room, and will counsel be able to do so, if need be? I spent some time on this issue. After some thought I was able to sort out the logistics in my mind - two separate conference rooms for plaintiff’s counsel so she could speak to each client privately and one conference room for defendant. With both issues resolved in my headI figured “why not?” If counsel were agreeable and wanted to do it, I should give it a try. So, I said “yes,” albeit with trepidation.
Somehow, we managed to settle one of the cases and to determine that more information gathering was needed before the second matter might be resolved.
So…I started. While normally, I might start a mediation with a joint session, I knew using separate sessions throughout these mediations was the only way to do this. I met with one plaintiff and counsel, went through the preliminaries, and then learned from her what her case was about. While I went to speak with defense counsel about the first case, plaintiff’s counsel met with her second plaintiff. After meeting with defense counsel, I than met with the second plaintiff and counsel, went through the preliminaries and then learned about her case. As I left the room, I discussed with plaintiff’s counsel the defendant’s response to the first plaintiff’s position in the first case so that she could confer with the first plaintiff while I again conferred with defendant and her counsel on the second case. When I finished conferring with defendant and her counsel, I met with plaintiff’s counsel to discuss both matters. At this point, it seemed appropriate for me to meet with both counsel to discuss both matters and so we did. Luckily, plaintiffs’ and defense counsel knew each other, had many cases together, and based on their relationship were able to meet cordially and discuss both cases in a candid fashion. (I doubt this would have gone as
Would I do this again? Probably, but only if asked. It is not a process I would promote, or endorse as it seemed to “cheat” each plaintiff out of the “process” each came to participate in; to wit, mediation. Studies have shown that when we attempt to multi-task, we do each task less well than if we were focusing solely on one of those tasks. Indeed, an April 11, 2011 New York Times blog post reported on a study finding that “multitasking takes a significantly greater toll on the working memory of older people” to the point that they have trouble remembering what they were doing after experiencing a brief interruption. (See Multitasking Takes Toll on Memory, Study Finds by Matt Richtel). As I am an “older” person, this troubles me! And, it is definitely how I felt about my multiple mediations. As much as I tried to guard against it, at the end of the day, I felt that each plaintiff lost something in the “process.”
That morning, I came to my office feeling nervous and apprehensive. I wanted everything to go smoothly. I was still trying to figure out how to make the most efficient use of time without keeping each plaintiff and the defendant waiting too long.
As I moved between the plaintiffs, I wondered how each plaintiff felt, knowing that she had only 50% of her counsel’s attention and guidance (as well as my attention) due to the other plaintiff in the other room. No doubt, plaintiff’s counsel felt a bit awkward moving between her two clients. Was something lost in the “process” of mediation? Standard VI in the ABA Model Standards of Conduct for Mediators (September 2005) is entitled “Quality Of The Process” and provides, among other things, that a “mediator shall conduct a mediation…in a manner that promotes…procedural fairness…” To do this, among other caveats to this Standard, “A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.”
Did I, unwittingly, violate this standard? I hope not. I tried to keep it personal and take time with each plaintiff giving each party as much attention as needed, but, at the same time, I realized I had to keep the “process” moving and do so efficiently! Needless to say, I did an awful lot of walking! I certainly got my exercise - both physically and mentally!
So, in conclusion, I would suggest that if asked to “multi task” mediations, think long and hard before answering; there are a lot more facets to it than one could ever imagine! z
Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at firstname.lastname@example.org / www.pgpmediation.com. Phyllis G. Pollack
Read more articles by Phyllis G. Pollack at: www.adrtimes.com/articles/author/phyllispollack
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My All-Nighter by Lynne Bassis
My case started on July 3rd at 9:00 a.m. and alas, but soft, what light through yonder window breaks, ended at 7:00 a.m. on July 4th.
It was an interesting mediation. As the day drew on, we had to order food. In the middle of the night, new people joined the mediation. Throughout the mediation, a hall monitor, usually me, monitored bathroom breaks to make sure that no one ran into anyone from the others side. When the settlement agreement was finally signed, it included one special imprint: Intending to send a message to the plaintiff, one of the signatories to the settlement agreement pricked her finger, leaving a blood stain on her signature line. Though I knew not the meaning of the blood stain, I deduced that it was not a positive omen. This case was about a woman of tender years (though chronologically “of age”) who succumbed to her uncle’s advances while employed at her aunt’s restaurant. The incident had split the family in halves, with some members siding with the uncle and aunt and other siding with the plaintiff. The family members, being from outside the United States but residing inside the United States, were embroiled in customs, languages, and allegiances of two cultures.
Whether intimate conduct is or is not consensual is a fairly common theme in mediations involving allegations of sex discrimination, sexual harassment, or sexual battery. What was novel about this case was not whether the encounters were consensual (since the plaintiff was technically an adult under the law). The thrust of plaintiff’s challenge was that the “consensual” argument was irrelevant. Irrespective of plaintiff’s chronological age, argued plaintiff’s counsel, plaintiff was not of sufficient emotional maturity to give consent. Recent developments in brain science lent support to this notion, i.e., making plausible an argument that plaintiff’s brain development was a work in progress and, as yet, incomplete. Thus, the argument went, plaintiff lacked the requisite maturity to understand the impact of her actions and was therefore
6 | ADR Times Perspectives
incapable of providing consent. Plaintiff’s counsel provided 75 pages of briefing regarding the inability of a young woman in her early 20’s to be psychologically capable of giving consent, that is, understanding meaning and ramifications of a sexual encounter, notwithstanding the law that set the age of adulthood at age 18.
However captivating this argument might have been from a social science or neuroscience perspective, pursuing the matter to trial would have left absolutely no possibility for any family reconciliation. The two sisters - plaintiff’s mother and plaintiff’s aunt - the matriarchs of the family - found themselves torn asunder by the allegations and the fallout. Plaintiff’s mother, aghast at the alleged conduct of her sister’s husband (plaintiff’s uncle) was poised to retaliate in the most aggressive way she could contemplate. Plaintiff’s aunt, insistent on protecting her husband’s reputation, believed that the allegations of intimate encounters between her husband and plaintiff were fabrications of her fanciful niece. Or, in the alternative, if the encounters did take place, they were plaintiff’s fault in that plaintiff had been successful in seducing her husband. Putting this now divided family before a jury would be the death knell of any possible reconciliation in the future - something which both sisters, at different times during the mediation had hinted would be of interest. It was the plaintiff herself, in the face of her disapproving mother, who was willing to consider an apology from her uncle. The apology, however, had to be made in a specific way. Plaintiff refused to receive a face-to-face apology from her uncle who was down the hall. Plaintiff also refused to speak to her uncle via the telephone. The only way she would entertain an apology was if it were hand-written and delivered to her during the mediation. The uncle agreed to put an apology in writing, however, he did not speak or write English (much of the mediation had been conducted with translators). The uncle was given some time to prepare and write an apology.
As I looked upon the nearly two pages of (to me) undecipherable script that had been handed to me, I wondered what it said. Could I just hand it over on good faith that it was an apology? What if I was holding a scathing monologue written by plaintiff’s aunt? What if it called plaintiff a tramp, a liar, or something equally colorful? I considered asking for a translation before delivering the apology to plaintiff. But, could I trust that the translation was accurate if someone in the uncle’s camp had provided it? Since it was in the wee hours of the morning, translation services were not available. This was not the kind of need that could be satisfied by a provider of emergency room services or other all-night establishments; I was left to my own devices. I had to trust my instincts.
With the uncle’s permission, I asked a family member of the aunt and uncle to review and translate the pages. I explained how dangerous it would be if the apology were susceptible to different interpretations. I
had to make sure that what purported to be an apology, was indeed an apology. I received assurances and decided to deliver the apology.The apology did the trick. It was received well by the Plaintiff (albeit less so by her mother) and opened up the door for the monetary negotiation. Dollars later, I locked up the office to get some zzzz’s before my fireworks celebration was to begin. I do not know what transpired after the mediation. But, a more captivating mediation script I could not have made up because, as it is sometimes said, truth is stranger than fiction. This was a case that goes down in the annals of my mediation career as being both memorable and instructive. It illustrates the fact that one can never anticipate the twists and turns of mediation. One must be willing to follow the parties’ lead, all the while bringing presence, creativity, unrelenting commitment to the process, and never a hair of fatigue, regardless of what number the big hand or little hand is on. z
Lynne S. Bassis, Esq. is affiliated with the Agency for Dispute Resolution and leads the labor and employment mediation group. Principal of Bassis Mediation Group, Distinguished Fellow of the International Academy of Mediators, certified mediator by the International Mediation Institute and National Academy of Distinguished Neutrals panelist, Bassis mediates at the Intersection of Law and Human Emotion. Combining rigorous legal analysis, with the sensitivity required for employment, wage and hour (including class action), disability, wrongful death, catastrophic injury, intra-family, trusts & estates, professional liability and business disputes, she is successful in bringing parties to settlement. As a conflict management design consultant, she helps businesses and institutions manage litigation risk by reducing internal conflict before escalation occurs. Having mediated 1,500 cases during her career, Bassis draws upon a penetrating understanding of the law and our complex business world, alongside astute people skills and a sharp legal intellect, as she moves people from conflict to resolution. www.lynnebassis.agencydr.com / email@example.com Read more articles by Lynne Bassis at: www.adrtimes.com/articles/author/lynnebassis
Fall 2012 | 7
The Broken Family by Jeffrey Krivis
The Central Valley of California, known for its good weather and rich soil, is considered the breadbasket of the country. The many people who live in this agricultural community work hard. They know that the literal fruits of their labors feed people, and they are proud of their role in society. They are strong believers in family values. It is against this backdrop that a stunned community learned of the arrest and detention of local farmer Tom Locke for molesting his seven-year-old daughter Andrea.
Much has been written about the sociopathic behavior of child molesters, particularly if they are adults who molest their own children. Society has been plagued by such behavior both in the family and in the church. When this type of behavior surfaces in a sleepy agricultural town whose family values embody the very essence of its people, the alleged perpetrators are never able to regain their reputation. People begin to look over their shoulders and question whether their neighbors are who they think they are. The concepts of trust and faith are rocked to the bone. This is why few crimes carry as much social disgrace as child molestation. Most people would rather be accused of armed robbery.
Tom Locke has lived in the Central Valley his entire life. He married his high school sweetheart and continued to work on the family farm growing various crops that have sustained his family for over one hundred years. He was a deacon in his church and a member of the local city council. When folks needed help in the community, they knew they could count on the Locke family. Tom and Mary Locke were married for fifteen years and had three children, ages 4, 7, and 11. The children were typical fun-loving kids. Annie was the four year old who stayed in her sister’s shadow and looked up to her in every way. Her sister was an imaginative seven year old who loved the family trips to Disneyland and enjoyed playing with her Barbie dolls. Charlie played Little League baseball, collected Pokémon cards, and loved playing games on his Wii. All the children were healthy, well adjusted at school, and did not exhibit any emotional problems. Neither Tom nor his wife had any criminal record and had been considered model parents by their friends. Until the moment of Tom’s arrest, the Locke family lived the American dream - they owned their own home, raised three children, and were well respected in the community. All of that changed on September 1, 2006, when representatives of the County District Attorney’s office came to Andrea and Charlie’s school and interrogated them without their parents’ knowledge or presence and removed both children from the school without obtaining any warrant whatsoever. According to witnesses at the scene, the law enforcement officials indicated to the school principal that the children were in imminent danger of serious bodily injury and had to be taken into custody for their own protection. Following the incident at the school, the District Attorney prevented the Lockes from entering their home while evidence could be accumulated. The children were taken for an interview at the examination center, where Andrea was questioned by social workers. Charlie was also interrogated in a separate room from Andrea. The purpose of the interrogation was to determine if the children were victims of sexual abuse by their father.
Thereafter, Andrea was subjected to an invasive forensic vaginal and anal exam without the knowledge, consent, or presence of her parents. Photographs were taken to determine whether there had been any improper sexual activity, and the evidence was then put in a special evidence locker for the District Attorney to examine.
The facts that gave rise to this unusual set of circumstances are very simple. Andrea had an active imagination. She made unusual statements to family and friends about ghosts and goblins living in the neighborhood and recited to her mother her dreams of being strangled by snakes. One day she brought to school a teen magazine which ran some stories on sexual themes. Just like the game of telephone tag, the children who saw the magazine surmised and gossiped, until the message was that Andrea was playing sexually inappropriate games with her father. As a result, the teacher brought her to the principal’s office to discuss the matter.
While at the principal’s office, a social worker was contacted and immediately came to the school to interview Andrea with the principal. Mrs. Locke was not contacted during this entire procedure. Following the interview, the social worker, in a classic rush to judgment, removed Andrea from school and a meeting was convened between the social worker, the police and the District Attorney to discuss further investigation. The parties agreed to audio and videotape another interview with Andrea as well a separate interview with Charlie. The interviews were witnessed by a victim advocate watchdog who reviewed the interviews from a separate room via hidden camera equipment. Based on the interview, Andrea seemed to implicate her father, and, to a lesser extent, her mother in sexual assault. A collective decision was made to have Andrea undergo further forensic examination at public expense. The physical examination findings were normal, meaning there was no evidence to confirm or negate sexual abuse. Such findings were found to be inconclusive. Nevertheless, the children were placed in foster care immediately, and later with family friends. A juvenile court dependency petition was filed, and the allegation of sexual abuse began to wind its way through the legal system. The local newspaper published pictures of the family on the front page, which was tantamount to tarring and feathering the Lockes in their local community. Eventually the allegations were dismissed due to the fact that there was no corroborative evidence. Approximately forty-five days after the legal proceedings began, the children were given back to their parents. The cost to fight the legal proceedings exceeded $50,000.00, but the emotional scars and embarrassment have never evaporated.
Despite the lack of evidence from multiple interrogations of the children, the forensic examination of Andrea, and the search of the Locke home, as well as interviews with other children and parents, the County continued to detain the children from their parents and proceeded with legal dependency proceedings based on knowingly deficient and improper allegations of abuse. After exculpatory information finally surfaced, the legal proceedings were dismissed but the spirit and the reputation of the family who had been upstanding members of the community for over 100 years had been broken. After the initial nightmare was over, the Lockes filed a lawsuit to seek compensation for violation of their civil rights and to protect other families in the future from this type of abuse.
Rather than put the family through additional aggravation, the County decided that it would be in everyone’s best interest to sit down privately and resolve the case quietly outside of the court system. Faced with this opportunity, the Lockes were encouraged that the County finally wanted to come clean and accepted the offer of mediation.
Fall 2012 | 9
The most obvious instrument that was underutilized here was listening to what was not said, as opposed to what was being said in the negotiation. Had the mediator been sensitive to the lack of client involvement he would have been able to identify the emotional impediments earlier in the day...
The mediation process itself was fairly uneventful. Tom and Mary spent most of the day deferring to their lawyers and politely listening to the mediator as he went through the subtleties of the case and current state of the law with regard to the County, which was currently in flux. Despite the efforts by the mediator to engage with them, they were somewhat distant and demonstratively quiet. The mediator decided to focus on a more conventional approach, exchanging offers and demands in the typical negotiation dance until he was able to obtain a sizeable offer which was thoroughly endorsed by the Lockesâ€™ counsel.
10 | ADR Times Perspectives
The final offer from the County was so substantial that there was palpable excitement in the room from the Lockeâ€™s legal team. It was at that moment that the real mediation began. Mary broke down crying and Tom looked at her quizzically as if he was confused as to what was going on. He gave her a nod and they stepped down the hall into a private room to talk without their counsel. After about 20 minutes, the attorneys were looking at the mediator to move things along so the mediator went down the hall to check on the Lockes. What he found was tantamount to a complete meltdown.
Evidently, Tom had notified Mary that as soon as the settlement was consummated he was going to leave the marriage. Knowing that was going to occur, Mary decided that she would not agree to the settlement terms as it was clear that reaching an agreement on the money would result in a dissolution of their marriage, which was something she desperately wanted to salvage. While the stress of the criminal case was over, the scars were deeply imbedded and, for reasons known only to Tom and Mary, Tom did not want the marriage to go forward. Clearly, this was information that was not presented to the mediator in the Plaintiffs’ brief nor had it surfaced during any part of the day as the mediator tried to engage with the parties on various levels. To say that it came as a surprise to the mediator and even to the Lockes’ counsel is an understatement.
At that moment the mediator realized he had made a terrible mistake by not identifying and addressing the emotional concerns of the family early on in the mediation. He accepted the Lockes’ indifference and abstention from discussion as a willingness to put the conflict behind them and focus simply on the financial terms of the settlement. He failed to recognize how the strain of the criminal proceedings had built up a well of anger that was hidden beneath the surface of a rock-hard shell built around Tom Locke. What’s more, he elevated the status of the lawyers above the clients for the purposes of processing the mediation so that he could get to the numbers as soon as possible and consummate the transaction known as settlement. Unfortunately, the pecking order in this case should have been reversed, with the Lockes placed at a higher level along with recognition of the impact that this set of events had on their lives.
The concept of “status” is something derived from improvisational theatre. It is a social position which is defined by the behavior of the parties and the way they interact with each other. In this case, Tom and Mary took a low key approach to the mediation, acting like everything was fine. Following those cues, the mediator assumed they wanted to defer to their legal team and to be treated as if they were low status– elevating the lawyers to a high status position. While status can shift during a situation, it requires interaction and changes in behavior to allow for the shift. Here, the mediator maintained a consistent behavior throughout the proceedings, recognizing the high status of the lawyers and low status of the parties, until the actual moment settlement was on the table. At that point, the parties (Tom and Mary) shifted status to themselves, completely changing the dynamics of the case.
The mediator had a sense early in the case that there might be an emotional roadblock with the parties. After all, they had been through difficult criminal proceedings and almost lost their children to unwarranted allegations of child molestation. Nevertheless, he leap frogged over his own intuition in order to cut to the negotiation chase. In so doing, he missed the cues that were given by the clients which were ever so subtle but glaring in retrospect. Clearly, people who have been through this type of emotional trauma would not sit by idly while their situation is discussed inside and out by lawyers and claims examiners. At a minimum, the mediator should have sat quietly with the clients and had them summarize what this trauma had done to the family and how the family had coped with the huge interference in their lives. By doing so, the mediator would have clearly identified the emotional barrier exhibited by the Lockes earlier in the session rather than after a settlement had been reached. Anxious to rewind the tape, the mediator spent the next two hours with the Lockes exploring in detail all of the facts that led to this uncomfortable moment in their lives. The mediator gently prodded
the Lockes to look to the future and confirm that, though he was no psychologist, perhaps some family counseling might be in order now that the financial side of their house would be secure. In short, the mediator used the skills he had acquired 20 years earlier to help the Lockes look toward the future and be grateful for what they were about to receive in the settlement. While the emotional scars ran deep, litigating the case any longer would prevent the entire family from continuing the healing process. Mary recognized at that moment that it was important to put the children’s concerns ahead of hers and she agreed to accept the settlement on the condition that Tom meet with the family counselor, which he agreed to do. A term sheet was prepared and the parties signed, but the family was broken. At least, the mediator thought, the settlement offered them a chance to look to the future.
The dynamics of this case presented a number of challenges on various levels. The primary issues which the mediator had to deal with were: (1) Status - recognizing the hierarchy in the room; (2) Intuition - trusting his gut to deal with the emotional roadblocks that would necessarily result from such a traumatic situation; (3) Identifying Barriers to settlement - looking for the strategic and/or emotional barriers that prevent a case from settlement; and (4) Managing the “transaction v. transformation” components of the mediation - knowing when to focus on the financial terms of the deal while recognizing the personal healing that needs to take place.
WHAT HAPPENED? A mediator that is on auto pilot can get a case settled, but often misses opportunities to use the instruments available to him to create a positive experience for the participants. The most obvious instrument that was underutilized here was listening to what was not said, as opposed to what was being said in the negotiation. Had the mediator been sensitive to the lack of client involvement he would have been able to identify the emotional impediments earlier in the day instead of having a complete breakdown when closure time arrived. Staying fresh and engaged as a mediator instead of simply closing the transaction early creates an opportunity to see and manage the entire dispute, not just the parts that deal with the amount in controversy. One option that could have been utilized would have been a premediation meeting with the plaintiffs and their lawyers before the defense showed up for the mediation. This type of meeting would have focused solely on addressing the objectives of the plaintiffs, identifying the emotional concerns that might get in the way of the negotiation, and setting the stage for the ultimate transaction that would take place in the negotiation. Simply starting the mediation without front loading the client centered issues can sometimes direct attention away from important concerns of the clients that could prove problematic later on.
Luckily, the mediator was able to salvage the settlement late in the day, but only after an artificial impasse was created by the clients. It was at this point that the mediator went from auto pilot to full engagement, allowing the process to unfold for all parties involved, not just the people interested in the financial outcome.
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WHAT STRATEGIES CAN WE LEARN? 1. Be aware of “status” early on in the mediation.
Status addresses the behavior of characters in a scene. It also relates to a person’s self worth. It is often established through the parties social position (i.e. boss-employee, mother-daughter), but also how the parties interact with each other. If you interact in a way that demonstrates you are not interested in the other person, you have created a high status situation for yourself which reduces the other person to a low status or lower self worth on the pecking order. By not paying attention to the key players in the case until final monetary figures were exchanged, the mediator reduced the status of the plaintiffs which enabled them to continue to feel slighted by the system. Status is established in every line and gesture and changes continuously, and different behaviors can be used to raise or lower another person’s status. A better approach in this case would have been to recognize the high status of the plaintiffs early on, going through the process by shifting status as the negotiation unfolded. 2. Say yes, and…
Every negotiation is a communication process built on a story. To begin with, the players have to agree to the basic set-up. Essentially, the who, what, and where have to be developed so that the stage is properly set for the negotiation. After that, each idea should be met with “yes, and…” By saying “yes, and” we are not necessarily agreeing with the principles presented by our partners. Instead, we are simply developing the scene. First we accept the reality created by our partners, and then we add new information, so that we can ultimately determine what realistic options are available for settlement. Using this principle early on in the mediation with the plaintiffs would have allowed the mediator to address the emotional roadblocks way before the impasse occurred at the end of the negotiation. 3. Consider the formula for improvising when in a negotiation.
Every negotiation involves a tension between four competing forces: Instinct, Intuition, Information, and Knowledge. That tension, when blended together, creates an opportunity for the mediator to improvise in such a way as to allow the story to unfold systematically and without ignoring critical concerns of the parties.
The competing forces can be defined as follows: Instinct describes inherent dispositions towards particular actions, which is an inherited pattern of responses or reactions to certain kinds of situations that serve to set in motion mechanisms that evoke an organism to action. Intuition is the ability to interpret tones of voice, facial expressions, body language, and other symptoms of the internal condition of the speaker.
Information represents a message, something to be communicated from the sender to the receiver; it does not have to be accurate. It may be a truth or a lie, or just a sound. Strangely it may even be a disruptive noise used to inhibit the flow of communication and create misunderstanding. Knowledge is the confident understanding of a subject, with the ability to use it for a specific purpose. It is commonly shared by groups of people and in this context it can be manipulated and managed in various ways. The way a mediator manages these forces is by interpreting the environment you are in by using your INSTINCT and the INFORMATION gathered from the people in conflict; then, encourage teamwork by building rapport and keeping the conversation going by saying, “Yes, and….” The formula itself can be viewed as follows: Instinct + Information = Intuition Intuition + Knowledge = Improvisation
4. Gain your transaction dollars by being transformative.
Negotiations of litigated disputes often have an over arching principle of horse-trading, operating within a set routine or pattern, designed to maintain rather than change the relationship of the parties. This “transactional” approach to mediation is highly successful but ignores the “transformative” nature of the process. The latter engages the parties in sometimes risky but usually positive work that prompts change in the parties and their positions. The former focuses solely on the exchange of numbers. While a garden variety personal injury case is a perfect dispute to be handled in a transactional way, when adding potential emotional hurdles to the case its important to utilize the transformational strategy. 5. Keep an eye out for strategic and emotional barriers.
People hold private information they want to hide or to use to mislead the other parties in order to get a bigger piece of the pie. These are “strategic” barriers that need to be identified in order to manage the negotiation transaction, particularly when horse trading is the approach to settlement. The bigger problem is when people depart from rational behavior, leading to a distortion and misinterpretation of information, resulting in artificial impasse of a case. This is known as “emotional or cognitive” barriers that are just as critical to address as strategic barriers. These emotional barriers were ignored in this case until it was almost too late to salvage the deal. z
Jeffrey Krivis has been recognized by the Daily Journal, the leading legal newspaper in California, as one of the ‘top 20 mediators in the state,’ and ‘top 50 neutrals in the state,’ (Daily Journal). Since 2004 he has been honored as one of the ‘Super Lawyers’ in California by Los Angeles Magazine and Law and Politics Media. www.firstmediation.com Jefferey Krivis
Read more articles by Jeffrey Krivis at: www.adrtimes.com/articles/author/jeffreykrivis
12 | ADR Times Perspectives
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Bad Fences Make Bad NEighbors by Dan Simon
“They’re just sore losers,” Myrna said. She had called me to ask whether I’d mediate between her and her neighbors, who were complaining about a fence she’d built and various other things. She’d won in arbitration, but the Smiths didn’t like the arbitrator’s decision, so they sued her in state court. The court told them, and their lawyers apparently agreed, that they should try ADR first. Myrna liked what she’d read on my website about my “non-legalistic” approach. I said I’d be happy to help. Myrna said she’d ask her lawyer to suggest me to the Smiths’ lawyer. The Smiths’ lawyer, Bob, called me after hearing from a partner at his firm that my “unique” approach might make sense for a neighbor-toneighbor dispute. Bob asked if I wanted pre-mediation submissions, I said there was no need as far as I was concerned. But I said that
14 | ADR Times Perspectives
if anyone thought there was something I needed to know, they were welcome to share it with me, as well as with the other side (I reminded Bob that I’m not a decision-maker or an evaluator, so communicating with the other side was what really mattered). I also told Bob that it was the parties’ choice whether their lawyers attended the mediation. Bob made no comment on that question, but he told me that he and the other lawyer agreed that they would create summaries of their arguments and submit them to me and to each other before the mediation.
I heard from Myrna several days before the mediation that she was disappointed to learn that the Smiths would be bringing Bob to the mediation, as Myrna had decided to leave her lawyer out of it. She wondered if, given that, I could arrange for her to be in a separate room from Bob and the Smiths, since it wouldn’t be fair for her to
be in the same room with Bob. Her lawyer had told her that that was usually how mediations were done, anyway. I told her I’d be happy to conduct the mediation in any way that all the parties were comfortable with, but that I’m not capable of communicating anyone’s message as clearly as they are. Two days before the mediation, I received Bob’s legal summary, along with some photos. I also received a call from Myrna saying that she planned to bring a friend for support.
The most striking part of Bob’s submissions was a photo of the fence that Myrna had erected. It looked to be about 12 inches from the Smiths’ door, and it blocked half of the door before jutting outward another three feet. From those photos, I could understand the Smiths’ frustration.
On the day of the mediation, I was glad I had reserved the big conference room. I hadn’t known that both Smiths would be there; and I hadn’t known that Myrna would bring two friends. I asked, specifically for Myrna’s sake (to acknowledge her previously stated preference for separate rooms) if it would be ok for us all to gather in the big conference room so I could briefly introduce myself and the process. Myrna quickly, convincingly said that would be fine, as did everyone else. So Bob the lawyer, Dave Smith, Angie Smith, Myrna, Myrna’s two friends, and I sat down around the big conference table. I gave my standard introduction where I told them that I was there to support their conversation. I emphasized that they call all the shots in mediation and determine how the conversation unfolds.
Fall 2012 | 15
Then I said, “How would you like to start?”
After a brief pause, Myrna turned to Dave Smith and said, “I’d like to know what your favorite outcome would be.” Dave responded and said, “Ok, I’d like you to remove the fence, give us an easement so we can walk around our house, remove the trees that you’ve planted that obstructs our view of the river, and pay us $25,000 for all the hassles we’ve been through with you.” I reflected on what Dave had said. Myrna said, “Ok, well, I can tell this isn’t going to go anywhere. But let me get a few things off my chest.” With me occasionally reflecting, Myrna told this story: “I had an understanding with the previous owners of your place, the Johnsons. I had given them permission to walk on my land all they wanted, including along the side of the house, where the fence is now. But I was always doing that as a favor to them. I had sold them that lot and that was part of our informal understanding. When they told me they were selling, I agreed to grant them a full-fledged easement, so they could pass on to the buyers (who turned out to be you two) the right to walk around the house. We agreed on a price of $10,000 for that easement. They backed out on that deal, so there is no easement. As you know, the arbitrator agreed with me on that. The fence is on my land. So despite your lawyer’s arguments, I have every legal right to have that fence there. What’s more, I was very careful to put that fence on my land, because I didn’t want any more confusion with you two. Your lawyer’s argument that this is a ‘spite fence’ is simply not true. I am not a spiteful person.” “Oh really?” said Dave. He continued, “When we first moved in, the
first thing we heard from you was that we owed you $10,000, that wasn’t exactly the most neighborly way to welcome us.” “Yes,” said Angie, “Demanding $10,000…I don’t know if spiteful is the word, but it didn’t really get our relationship off on the right foot. And the Johnson’s have a whole different story about what your deal with them was. They told us we already had the easement. That $10,000 issue, as far as we could tell, was between you and them.
Bob chimed in that a “‘spite fence’ is the legal term for a fence that is raised with no legitimate purpose other than to annoy the neighbors. No one was necessarily calling you spiteful; we’re just saying that this was a ‘spite fence.’”
“I’m calling her spiteful!” Dave said. “Why else would you put that fence there? It doesn’t add to your tenants’ privacy - it’s chain-link. Nor does it add to the beauty of the yards. Part of the appeal of that neighborhood was its openness. And planting those trees down at the end of the yard - that does nothing but block our view of the river. Yes, I believe you did all of this out of spite.” “I’m spiteful? You’re the ones who are suing me now, even after an arbitrator told you you were wrong!” “We’ve always been willing to talk about this with you, Myrna.” “No you haven’t - you absolutely refused to talk about this.”
“We refused to talk about paying you $10,000, but you’re the one who said you didn’t want to talk last time.”
“Well, at that point, I wasn’t interested in talking with you and the Johnsons. The Johnsons are your friends, they’re on your side. And then you wanted to talk with your lawyer there. I wanted to talk like normal people do. And the real problem is how you’ve been acting since the day you moved in. My tenants told me they saw you, Dave, step out of that side door, wave your arm at both back yards and say, ‘this is my back yard.’ And all the times I saw you and your friends walking on my yard on the way down to the river? I have my tenants to think of. Gary says you two are always looking over into our yard; and they got sick of you two and your friends walking down to the river on our yard.”
“Gary?” Angie and Dave looked at each other. “We have a GREAT relationship with Gary. I can’t believe he complained about us.” “Well, he has.”
“That’s really surprising,” said Angie. “We talk to him all the time. He comes to our parties. We were extra careful to be cool with him, because of all the tension with you. That’s hard to believe that he complained about us.”
“Well I can understand why he might not want to tell you to your face.” Throughout this conversation, I carefully reflected on what each person said and perdiodically I stepped in to summarize what someone had said. At about this point, Angie Smith suggested that we all take a break. I looked around and saw that everyone seemed to agree that now would be a good time. I pointed out that my office, down the hall, had coffee and other beverages. I told the parties that I would check in with everyone to see if they wanted to talk to me about anything individually. After spending a few minutes with Myrna and her friends in the conference room, I checked on the Smith group who had gathered in my office. When I arrived there, Angie Smith said, “Would it be ok if just the three of us talked, Myrna, you and I?” I said that that would be fine with me if it was ok with everybody else. “I just think I might be able to get further with her, because I think Dave and she have too much bad history.” I responded, “Sounds good, would you like to suggest it to her?” So Angie and I walked back down the hall, I poked my head in the room and said, “Angie’s here and wants to make a suggestion - is that ok?” “Sure,” said Myrna.
I held the door open for Angie, and she said, “I’m wondering if I could just talk to you alone, with the mediator, Dan” Myrna, said, “and without your lawyer, either?” Angie, said, “Right, just you, me and Dan.” Myrna, said, “I think that’s a great idea.”
The others filed out of the room and Angie, Myrna, and I sat down. The conversation between Angie and Myrna took about 45 minutes.
Angie said, “I had no idea how hard this has been for you. But I want you to understand that it’s been hard for us, too.” Myrna said, “I do understand that now. I still don’t like your husband’s attitude, but now I at least know that you’re a decent person.” Angie responded, “Dave really isn’t as bad as he seems - a lot of people think he’s absolutely great - it’s just the way this whole thing happened - he does think you’re just being spiteful.”
Essentially, Angie and Myrna had a good old-fashioned heart-toheart. In that 45 minutes, they also agreed that Myrna would move the fence, far enough from the Smiths’ house so they could walk around it comfortably. They also agreed that the Smiths would pay to move the fence and maybe for a nicer fence. Myrna also agreed to keep her new bushes on the border trimmed to 5 feet in height or less. Myrna and Angie would meet in a couple days to decide exactly where the fence would go. They agreed that this would be a “license,” as opposed to an easement, so that Myrna could reconsider her options in case she wanted to sell, or in case new people bought the Smiths’ land. And they agreed they’d work with Myrna’s lawyer on the language of the license.
After Angie had a chance to explain the understanding to Dave, the whole group gathered again.
After the whole group reviewed Angie and Myrna’s understanding and Dave consented, Myrna announced, “One more thing…I’d like an apology from Bob.” She continued, “Bob, the things you’ve written in your letters to me and in your argument to the mediator were not necessary and were very hurtful.”
Bob, who had been impressively quiet throughout the mediation, said, “Myrna, I’m sorry. In my role as advocate I do things with the intent to protect my clients’ rights, and I’m aware that those things can be offensive, and I’m sorry about that.” Myrna said, “thank you.”
As the group walked out, they all thanked me. I reminded Bob that mediation works for personal injury, construction cases, and any case where people are in conflict. Bob said, “I’ll keep you in mind. You’ve got two people in your corner at my firm now.”
I’m fortunate to have a model of mediation that allows the parties’ insights to guide the conversation. My style allowed Myrna’s awareness of what she needed to get off her chest and Angie’s instinct to talk directly to Myrna to significantly change the course of the mediation. Those insights could not have come from me. The transformative model I employ as a mediator gives me permission to support clients as they discover what they need. z
Dan Simon teaches and practices transformative mediation in St. Paul, MN. He also writes the blog at The Institute for the Study of Conflict Transformation. www.twincitiesmediation.com Dan Simon
Read more articles by Dan Simon at: www.adrtimes.com/articles/author/dansimon
Fall 2012 | 17
What a Plaintiff Really Wants by David Schlueter
18 | ADR Times Perspectives
In my many years handling complex, construction matters, I’m always amazed when I discover the real issues and what a plaintiff really wants from a defendant. Although a complaint is always asking for money for repairs, damages, etc., sometimes the real tipping point for a settlement lies in another completely different, and many times, unknown issue. I have found that it is always more meaningful to listen closely to what a plaintiff actually says it wants, as compared to their counsel. From the mouth of the plaintiff, one usually finds the crux of what is the actual result that the plaintiff wants, and many times it is not money (although money is never refused by any plaintiff!) For example, I was involved in a complex, construction defect litigation. The plaintiff homeowner wife was very involved in the case, attending court appearances and participating in teleconferences, in tandem with her counsel. Throughout several mediation sessions, plaintiff’s counsel kept playing hardball with what we defense felt was an exaggerated settlement demand. The parties all appeared at an impasse. After about the fourth or fifth mediation, I was discussing the matter with the mediator. I asked about what the mediator felt the plaintiff herself really wanted. The mediator said he was not sure since the attorney had done all the talking, but he felt that she wanted something other than a ton of money.
With this in mind, the mediator had a face-to-face discussion with the homeowner and her counsel. The plaintiff expressed her real
concerns–she really wanted an apology from the builder. She also wanted the builder to put up some money toward settlement, instead of just insurance dollars paying for the settlement. Once allowed to speak her mind, she made it clear that she felt that the builder had abused their relationship. Thus, an apology was warranted in light of the fact that she had not yet received one from the builder.
With this new information in hand, it was amazing to see how fast the entire case settled. At the next mediation, the mediator discussed the homeowner’s true needs with the builder and his counsel. After some wrangling, the builder agreed to pay a small amount out of his own pocket to the homeowner. When the mediator orchestrated a face-to-face meeting, the builder gave her an apology for what had happened. With an apology on the table, the rest of the mediation fell into place. The entire case, which had been a real dogfight over several millions of dollars, settled within hours. The case goes to show that it always pays to ask a plaintiff what she really wants. The mediator and the parties must closely listen to what Plaintiffs say — it might just allow you to negotiate an excellent resolution for you and your client. z
David S. Schlueter is a founding partner of Northrup Schlueter and heads the firm’s practice in Alternative Dispute Resolution. Representing business clients and private individuals in commercial and construction litigation matters since 1983, he focuses on the fields of Construction Law, Construction Defect, Real Estate, and Business Litigation. In addition to his experience in both negotiated settlement and trial matters, he has wide experience in arbitration and mediation, and is frequently referred by other attorneys to assist in resolving such cases through mediation. www.nsplc.com Read more articles by David Schlueter at: www.adrtimes.com/articles/author/davidschlueter
Fall 2012 | 19
Pointed Finger Mediation by Bill Eddy
One day I was meeting with a husband and wife for their second or third divorce mediation session. They were high-powered, both in upper management positions. I thought that their family mediation would be like a business meeting. But no! At the beginning of this session, the husband leans over shaking his finger at me about 6 inches from my nose and says: “Today, Mr. Eddy!…” Well, I already knew we had two problems, because I always encourage the use of first names to make the mediation process feel more informal than court, to increase the likelihood of building connections among us.
So I decided to see if this response could work on this department head with his finger almost in my nose in our mediation session. So I said in my calmest, most sincere voice possible:
“Today, Mr. Eddy! You are going to tell HER [she no longer has a first name either!] that I am going to prevail on this issue. So Mr. Mediator, step up to the plate and do your job!”
“Wow! I can see how upset you are. I know this decision is really important to you. Don’t worry, I will pay full attention to your concerns – we have as much time as you need. And I really respect all the efforts you have made in preparing for today’s meeting.” (He had prepared several spreadsheets which he had laid out for his wife and I.)
My second thought was that I could remind him that we treat each other here with respect, and that you, sir, are not being respectful right now. But I thought better of that, given how intensely distressed he appeared, and I suddenly flashed back to an important lesson that I had learned while working as a young therapist in a psychiatric hospital doing group therapy with patients with schizophrenia. Even though mediation was the main treatment for their disorder, group therapy helped them manage daily life and have positive interactions with other people.
Now you may wonder about his wife. How did she feel about me focusing such concern on her husband? Immediately after he sat back, I looked over at her to see how she was doing. I wondered what I should say to her to equal what I had said to her husband. But I didn’t need to say anything. She looked so relieved that I had disarmed her husband without agreeing with him. I simply calmed him down. So I proceeded to make my agenda for the meeting, asking each of them what they wanted to discuss and then listing on my paper. They proceeded as if nothing had happened at all.
Well, that’s not my job as a mediator, so I thought quickly about how to respond. My first thought came from my amygdala (the alarm system in your brain that triggers your fight or flight response), which said to strangle this man! Of course, as a trained mediator, I realized that was not a good brainstorming option.
He immediately retracted his finger and sat back in his chair, without saying a word. Throughout the rest of the session, he was mostly cooperative, including using a bit of humor (of course, his style was mostly sarcastic, but his intent seemed to be an effort to be friendly).
I remembered one day when I was leading the group therapy and one of the patients said: “I’m having such a hard time today. The voices in my head are telling me that I’m really no good – that I’ll never succeed at anything.”
The lesson I learned is that I need to be prepared for such situations with simple phrases that I can use when under pressure. This is the occasion when I thought of the term: E.A.R. Statement. I thought it would be easy if I could remember what to say by thinking of my ear – which is always handy as a reminder. So an E.A.R. Statement shows: Empathy, Attention and/or Respect. It’s something you give to the person, rather than simply reflecting back what you heard them say. You show that you are really interested, want the person to have success in the process, and that you sincerely care about them as a professional who wants to help.
To which I responded: “Oh, don’t worry about those voices. They aren’t real. That’s why you take medication.” To which she responded: “Oh, Bill, those voices are real!” And the rest of the group agreed with her!
Oops! Then, I remembered that my supervisor had told me to never engage in logical arguments with patients with schizophrenia. Instead, just focus on empathizing with their pain and frustrations. So I said: “I don’t know what’s happening, but that sounds awful. I can’t imagine how upsetting that must be to hear those voices saying those things to you.” And she bursts into tears and says: “Yes, it’s really hard!” And the rest of the group gave her lots of supportive comments. The tone of the group completely changed when I gave my response that showed empathy for her.
Of course, I have learned from this and many other situations, that an E.A.R. Statement doesn’t mean that you agree with the person or will become personally close. You can and should always maintain a professional relationship, but you can use Empathy, Attention, and Respect at any time in a professional relationship.
That’s my story. It helps me stay calm when I’m confronted by difficult people in mediations – and anywhere. z
Bill Eddy is the President of High Conflict Institute and the author of “It’s All Your Fault!” He is an attorney, mediator, and therapist. www.HighConflictInstitute.com Bill Eddy
Read more articles by Bill Eddy at: www.adrtimes.com/articles/author/billeddy
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TranslaTing Theory inTo pracTice... “Earning an LL.M. from Straus was the best investment of time and money I’ve ever made. In addition to providing me with a way to distinguish myself from the hundreds of other neutrals, it has opened doors and created opportunities for me that I did not know existed when I started my studies.” Rebecca Callahan LLM ’07 Attorney • Mediator • Arbitrator
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Straus Still #1 At 25th Anniversary
ust over twenty-five years ago, in 1986, the then-Pepperdine School of Law’s Institute for Dispute Resolution was founded. It’s mission was the development of a robust curriculum focused on teaching students and practitioners how to better manage conflict throughout their lives and careers.
The dispute resolution movement was nascent but growing quickly, and the legal world was far from settled on mediation or arbitration as a means of resolving disputes. The founders of the Institute saw an opportunity to bring together leading academicians and practitioners to teach working professionals and students about the growing field of ADR. Little did they know, they were laying the foundation for one of the most prestigious dispute resolution training grounds in the world. Although it has since been renamed the Straus Institute for Dispute Resolution, the core mission of the Institute has never changed. Peter Robinson, the current Managing Director of the Straus Institute and Associate Professor of Law, reflects that, “From its beginning, the Straus Institute has been committed to five programmatic themes: developing academic programs for students, advancing understanding through scholarly publication, encouraging professional practice through conferences and continuing education workshops, assisting the resolution of disputes in religious communities, and applying its expertise as mediators and dispute resolution consultants by a commitment to service.” Not only has the Institute held to its core programmatic themes since its inception, it has in many ways expounded upon and shared its original mission the world over.
Today, after having served over 40,000 students and practitioners from every corner of the globe, the Straus Institute boasts a top-notch faculty just as diverse as its alumni, and the Institute can also proudly say that it has been ranked the number one dispute resolution program by U.S. News & World Report for eight consecutive years. Thomas Stipanowich, academic director of the Straus Institute and William H. Webster Chair in Dispute Resolution, notes that, “While most schools have only one or two faculty members teaching dispute resolution, each year Pepperdine has more than 35 leading scholars and experienced professionals…from Latin America, Asia, Europe, Canada and throughout the United States.” But perhaps the most telling aspect of the education students receive at Straus is the fact that its alumni are carrying the torch forward, leading the last couple decades’ proliferation of ADR practitioners, and raising the bar in ways previously unimagined. The leadership of many of the top ADR organizations in the United States and indeed the world are often a veritable “who’s who” of Straus alumni. The success of Straus alumni is only an effect, however, and not the root cause of the Institute’s unique status in the ADR field. A simple glance at the Straus Institute’s course listings is more than enough to
drive home the point that Straus truly offers one of the most robust trainings in dispute resolution one can find, anywhere in the world. Straus regularly offers over thirty-five different courses at any given time, and students have the opportunity to pursue a LL.M. degree, Master’s degree, or a Certificate in Dispute Resolution. Every summer, Straus Institute students have the unique opportunity to participate in study tours throughout Europe and China, meeting industry leaders in conflict resolution and seeing firsthand the leading dispute resolution institutions around the world. Yet, Straus has always had a mission reaching far beyond that of just an academic institution. One of the elements that makes Straus unique is its dual focus on not only students but also on working practitioners. The Institute offers several skills development programs, ranging from its widely recognized three-day Professional Skills Programs, featuring panels of nationally recognized experts in dispute resolution, to its intensive, 42-hour Mediating the Litigated Case training where in-house counsel, litigators, judges, and other professionals are able to study the mediation of litigated cases to become mediators or better advocates in mediation. As the Straus Institute has become an organization of increasing global influence it has expanded its offerings to include annual skills trainings on the east coast, trainings in Europe, and most recently a one-of-a-kind LL.M. formatted for European lawyers and judges, which features courses and practica in both London and Los Angeles.
As if its top notch curricula weren’t impressive enough, Straus goes well beyond simply teaching students and lawyers how to resolve disputes - it actively engages in the practice of dispute resolution. In 2011, the Institute was honored with the Association for Conflict Resolution’s Peacemaker of the Year Award for its PACIS PROJECT in Faith Based Diplomacy. As PACIS Founding Director and Straus Assistant Director Timothy Pownall puts it, “PACIS addresses intractable, identity-based conflicts that exceed the grasp of legal remedy and traditional diplomacy, by effectively combining the transcendent power of religion with the practice of international diplomacy.” Among other conflicts, the PACIS PROJECT has played an active role in the ongoing turmoil in Syria by brokering talks between the Syrian government and opposition leaders, with the goal of creating lasting solutions for the Syrian people. Whether because of its robust faculty, expansive course offerings, or global reach, it’s clear that what started twenty-five years ago as a small initiative to help advance the study of conflict resolution has since become an integral piece of our world’s evolving dispute resolution matrix. The Institute goes well beyond providing a world class education to its students, and is working every day to help individuals solve conflicts the world over. z —ADR Times would like to congratulate the Straus Institute on its impressive twenty-five-year milestone, and wishes Straus all the best going forward into its next era of dispute resolution endeavors.
Fall 2012 | 23
Find More Stories at www.ADRTimes.com—
De-Escalation: The Key to Peace
The Magic of Mediation: How Practice is Disconnected in Theory
Nancy had rented a small cottage on Tom and Tracy’s ranch. The cottage was old and the previous tenants had left it a mess. Over the period of several months, Nancy became frustrated at Tom and Tracy’s apparent unwillingness to fix the cottage.
Recently, I mediated with a young couple where neither of the two had completed high school. As a transformative practitioner, I tried to ensure that I supported, rather than supplanted, their control of their conversation, both what they wished to say to each other and how they wished to say it.
by Doug Noll
Read online at: www.adrtimes.com/articles/2012/8/2/deescalation-the-key-to-peace.html
by Arnold W. Zeman
Read online at: www.adrtimes.com/articles/2012/7/13/ the-magic-of-mediation-how-practice-isdisconnected-from-the.html
Wink, Wink, Nudge, Nudge
The Importance of Culture in Mediation
Have you ever found yourself in the middle of a mediation listening to your overly emotional client talk about their bottom line? Do you cringe when you hear that? “I won’t accept a penny less than” is a common phrase heard by mediators. It’s common enough that mediators also know that a phrase like that is often accompanied by a “wink, wink, nudge, nudge” from the party’s lawyer. Sometimes the lawyer herself is the one uttering the phrase and doing the winking and nudging at the same time.
To a high-context culture, low-context cultures can seem loud, excessively familiar, blunt, literal, authoritarian, and condescending - one feels overwhelmed with outside feelings and opinions, harassed by over-regulation of one’s behavior and outsiders’ refusal to respect one’s dignity and privacy. This explains the Russian defendant’s reluctance to engage with a mediator who bombarded her with rules and a plaintiff who bombarded her with feelings.
by Terri Lubaroff
Read online at: www.adrtimes.com/articles/2012/5/8/winkwink-nudge-nudge.html
24 | ADR Times Perspectives
by Kristopher Michaud
Read online at: www.adrtimes.com/articles/2012/8/3/theimportance-of-culture-in-mediation.html
Numbers in Negotiations by Joe Markowitz
Numbers are endlessly fascinating. Sometimes numbers take on mystical significance. Often numbers can mislead us. The number 99, for example, seems to be an order of magnitude less than 100, while a number like 22 seems almost equivalent to its neighbor 23 (even though the difference between the two smaller numbers is proportionately almost five times larger). Read online at: www.adrtimes.com/articles/2011/12/29/ numbers-in-negotiations.html
The One (Mediation) That Didn’t Get Away by Vivian Scott
Most of the mediations I’ve conducted over the years are a blur. The faces, names, and resolution details all blend together to make one big memory. Most of the mediations are a blur; but not all of them. There are a few that have stuck with me for one reason or another and I carry those around like special little secrets that belong only to me. Some are funny, a few are frightening, and one in particular touched my heart like no other. Read online at: www.adrtimes.com/articles/2011/4/20/theone-mediation-that-didnt-get-away.html
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Top Tips Avoiding a Boardroom Brawl Making sure tensions do not spill over when conflicts arise in your organization is essential – the alternative is getting bogged down and hampering progress. Don’t take it personally. A disagreement may be about the situation, idiosyncratic language used, or a difference in vision – so don’t make it about you. Knowing this can make it a lot easier to resolve difficulties. It is rumored that Bill Perez, a former CEO of Nike, had a management style incompatible with the organization’s culture. He found it hard to deal with the feedback he received from the board, believing he should have been credited for his successes. He left within a year of starting.
“Who was right” does not matter when you get beyond a certain point in a fight as the dynamic will have moved on. What then matters is ending the fight for the wellbeing of the organization and for the future. Otherwise others in management, or worse the shareholders, will have to intervene to avoid a damaging meltdown. Conflict can have a very high gravitational pull – it can disproportionately suck up more time and resource than other priorities. A study conducted by Lloyd’s in conjunction with the Economist Intelligence Unit revealed “board members are increasingly concerned about the increasing number of corporate litigation cases facing the boards.” On average boards spend 13% of their time discussing litigation issues. Recognizing this can increase a determination by directors to resolve the matter rather than prolong it. To unravel an argument, sort out the difference between what happened and how you or others feel about it. Then consider what is actually at stake or what the outcome needs to be. Although not a board dispute, in the case of the management of Barclays, whilst Bob Diamond said he felt “physically sick” on finding out about the Li-
bor scandal, it still happened on “his watch” and (at least in the first few days) he failed to realize that this was something from which he could not recover even though his Chairman had already tried to take the bullet. Keep clear and strong – and mind your language. A few misplaced words can reignite a fire but by keeping things simple and focused as is possible, it is easier to rebuild consensus. Start from the middle ground. It is a lot easier to get agreement on the points you are closest on and then work towards finding solutions on what you don’t agree on, than to just focus on the differences from the outset. It’s always easy to be wise after the event but when the worst happens it is a lot easier to find a way out of an impasse if you have thought about how to resolve differences in advance of the event.
Know your feelings and don’t turn into a pressure cooker. If you feel stressed in your dealings with other board members try to understand why (frustration? anger? fear? etc.). It can help you manage the situation a lot better and to make choices that are not just an emotional reflex. If possible, take the lead. That doesn’t mean storm in without listening. On the contrary it means start the dialogue and keep listening, this can be key to knowing where the building blocks are that may help you construct an agreement.
You don’t have to go it alone! There’s no shame in asking for help when you need it – and there is more out there than you might think – from coaching to process design to neutral intervention. And in that sense conflict can be an “added value” tool. z
Dr. Karl Mackie a mediator and Chief Executive for The Centre for Effective Dispute Resolution (CEDR). www.cedr.com
Read more articles by Karl Mackie at: www.adrtimes.com/articles/author/karlmackie
26 | ADR Times Perspectives
An international outlook from key positions From Negotiation Skills to Conflict Management and from Mediation to Adjudication we are expert at what we do which is why individuals and organisations, from the United Nations through to small to medium enterprises, call on us at our different locations around the world to help make a difference.
I encourage any international company facing the problem of dispute resolution to consider using CEDR. Yoshio Tanabe, Director, Tokuhon Corporation, Tokyo I highly recommend CEDR's mind-stretching thinking to anybody who interacts with people or customers in a professional relationship. Andreas Dietrich, Director, Novozymes, Denmark CEDR not only changes your practice, it changes your life! Alfred Ip, Partner, Oldham Li & Nie, Hong Kong
An Interview with Expert Mediatior/Arbitrator Scott Van Soye by Zach Ulrich
Our ADR Times Contributing Editor, Zach Ulrich, recently had the opportunity to sit down with expert mediator and arbitrator Scott Van Soye, to discuss Mr. Van Soye’s insights into the emotions and typical negotiation dynamics of mediation, his unique perspective into employment and disability cases, and his “learned wisdom” from experience as a lawyer and mediator. A consummate commercial attorney, mediator, and arbitrator, Mr. Van Soye practiced for over 20 years in the areas of real estate, employment, disability, and education law. Scott was a judicial staff attorney for eight years, during part of which time he was personally responsible for over 200 insurance claims cases related to the San Bernardino wildfires. Mr. Van Soye has served for six years as an appellate mediator for California’s Fourth District, Division Two. He has also mediated for both San Bernardino and Los Angeles Superior Courts, and on behalf of the EEOC. He was recently recognized for his exemplary appellate mediation work by California’s Chief Justice, Tani Cantil-Sakauye. Scott, thank you for joining us today. You have dedicated your life to helping others solve their disputes - what motivated you to enter this line of work?
My wife Andrea gets the credit for that. I enjoyed litigation; I felt I was helping make wrongs right, and I have a competitive streak that made it fun. But I was often bothered by the tremendous toll (e.g. time, stress and money) it took on the people involved. I went to a seminar on mediation put on by the Straus Institute. I found the idea that conflict could be resolved so much more quickly, cheaply and creatively in ADR than in litigation fascinating. At lunch that day, Andrea noticed how excited I was about the seminar, and said I ought to get my LL.M. at Straus. The rest is history.
You have practiced in a variety of fields ... Do you have a topic-area that you find particularly enjoyable?
I enjoy mediating any chance I get. I don’t have to mediate, I get to mediate. But if I had to pick a favorite, I’d say it’s disability law, because a successful accommodation agreement helps the disabled person move forward and be productive while giving the employer a motivated, useful employee. Everyone wins, and the benefit continues over the long term.
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Your practice in the area of disability law has a special significance for you - could you talk about that?
I didn’t plan on becoming a disability lawyer. I was a real estate guy. But people kept assuming that because I use a wheelchair, I knew all about it. So I learned. I learned (really, I already knew) that there are disabled workers out there - many of them veterans and older folks whose lives have changed dramatically - who ask for nothing more than a chance to prove they can still do something useful. I learned that employers out there mostly are people of good will who want to do what’s right but are scared of extra expense and an unproductive worker. They know that they ought to accommodate their disabled employees. They’re just not sure how to do it without disrupting their businesses and spending a fortune. I like helping find those solutions. Often times, employers are fixated on a high-tech solution when there is often something much simpler that will work equally well.
Have you found it helpful, or an encumbrance, to mediate from a wheelchair?
Most of the time it’s neither one nor the other. If anything, it’s been helpful, because I can inspire hope in a good post-injury life, or convince an employer that his disabled employee can be part of the
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team. Suppose someone has a serious injury. Hopelessness and anger can inflate their settlement demands. I can believably say to them something like this: “I know you’ve been hurt, and I’m not minimizing that. I want you to focus, though, not on what you can’t do, but on what you can do. Sure it’ll be harder, and I know it, but there are ways to overcome this and stay productive. So, let’s see if we can’t craft a settlement that will put this behind you and help you move forward.” And the negative emotions will lessen, and often they’ll become more reasonable. It’s a way of finding common ground, without emphasizing my disability too much.
If you could give one piece of advice regarding employer / employee accommodation agreements, what would it be? Scott Van Soye is a full-time neutral with the Agency for Dispute Resolution, with offices in Beverly Hills and throughout California. He holds an LL.M. from the Straus Institute for Dispute Resolution, and teaches ADR as an Adjunct Professor of Law at Pepperdine University. As an active member of the California Bar, Mr. Van Soye litigated cases concerning Public Entities, Real Estate, Employment, and Civil Rights claims for over 20 years. www.scottvansoye.agencydr.com
Keep it as simple as possible. Imagine you have almost no money and still have to solve the problem. What would you do?
Tell us a story about that.
Some years ago Judge Vic Micelli asked me to serve on a committee to renovate the historic Riverside Courthouse. It’s a really beautiful building, but it was built in 1901 and wasn’t accessible to the disabled. One of the issues was the jury box in Department One, which was elevated. Anyone entering had to get over a step. I was new to the committee. The solution they had picked was a $30,000 electric lift. I said, “Wait a minute, what about a folding metal ramp? When it’s needed, you unfold it, and the juror rolls up it. When you don’t want it, you put it away in a corner. No renovation to a historic courtroom, no fancy electronics. Just a simple little thing at the right time. The cost to the taxpayers was about $100 instead of $30,000. After that, I was a favorite of Judge Micelli’s. But I’ve always imagined that there was a salesman out there mad at me about the lost commission.
What’s the most valuable lesson you’ve learned as a mediator? You know, I’ve learned a lot of things over twenty-some years of resolving conflicts, but the thing of most use to me as a mediator, I learned from a client when I was a young lawyer.
The client was a wealthy man, angry about being sold shoddy goods. At the beginning of the case, I warned him that he would spend more on my fees than he could recover. He was offended; it was a matter of principle. Couldn’t I see that? He was ready to go to the Supreme Court. So, I filed the lawsuit, and off we went into litigation - interrogatories, documents, depositions, experts from Yale, the whole bit. Two years later he settled cheaply, and I asked him why. He said; “I like you, Scott, but you’re a pain in the neck. Every time I turn around there’s a letter from you, or discovery to answer, or a deposition, or a meeting. I can’t go fishing; I can’t go away with the wife. I got sick of it. So I settled.” The real problem, of course, was the litigation process. But it taught me that the cost of litigation isn’t just monetary. It’s lives disrupted,
30 | ADR Times Perspectives
pleasures foregone, opportunities missed. It’s tremendously powerful to remind people of that, and to ask them to picture their world without this conflict. How would they spend the time, energy, and treasure no longer absorbed by it? Not surprisingly, many disputants decide they prefer a conflict-free life, and settle reasonably.
When you walk into a room to mediate, what goes through your mind? What are your primary goals?
I’m trying to determine what the barriers to resolution have been. Sometimes, it’s that the parties haven’t communicated enough and lack critical information. Sometimes it’s that they have strong emotions or unrealistic expectations. Sometimes, it’s a lack of negotiation skill. Sometimes the parties need help coming up with creative alternatives or don’t fully realize the benefits of resolution. Finally, some parties just don’t have enough resources to fund a reasonable settlement. Each barrier leads to a different approach to helping the parties agree.
When you give an introduction, what points do you make sure to emphasize, and why?
I’m always upbeat when I go into mediation. I emphasize that with hard work we can settle the parties’ conflict so that they can move on with their lives. I focus on the parties’ control over the process, its confidentiality, and my neutrality, as well as my years of experience and my extensive training in ADR. The point is not to brag, but to put the participants in a positive, hopeful, emotional state. Research shows that people in a good mood are more likely than those with negative emotions to be creative and cooperate, and less likely to make unreasonable demands. I want to take advantage of that in mediation.
You’ve written on the impact of emotion in negotiation. What have you learned about the role of emotion throughout the negotiation process?
When I started as a lawyer, the accepted wisdom was that negotiation ought to exclude emotion and focus on logic and economics. As more and more research has been done on decision-making, we’ve learned that that is poor advice. We are emotional and social creatures, and our emotions influence all our judgments. Neuroscientific studies have shown that our brains’ emotional circuits activate before our centers of logic can process incoming information. Trying to squelch those emotions can impair a negotiator’s ability to reason about the matter in dispute. Instead, often uncovering the root of strong feelings can point the way to resolution.
You’ve written before about “nibbling” in mediation and how it can affect mediation outcomes. Help us understand that. “Nibbling” is a negotiating technique whereby after the deal is done, a party adds another relatively small demand that he “must” have or the deal is off. It often leaves those unprepared for it upset, because in our culture “a deal is a deal.” We feel betrayed. In other cultures, the contract is seen as flexible, and there’s no fuss.
Remember, the nibbler is counting on you to fall into the “sunk cost fallacy,” so that you’ll give in. That’s the idea - think of a poker game - that you have so much invested in the pot already that you have to stay in and see the cards instead of folding even when folding may make sense. The work you put into the deal being nibbled is done and gone. Don’t think about it. Ask yourself if the new deal makes sense. If not, call their bluff, but give the nibbler a little time to retract the demand, to “talk sense to her client.” Or a better way, both because it saves face and because it can turn a minus into a plus, is to prepare ahead of time. Think what extra nibbles must I have in return, before the new deal is done? Not only do I have whatever I nibbled back, I’ve won respect because I played the game well and didn’t lose my cool.
You’ve been very successful at settling appellate cases. How are those different from cases still pending trial?
Well, typically a win generally means no more than a chance to go to trial and do it all over again. Appellants have a heightened sense of risk because they lost at trial, while the respondent may be overconfident because he or she prevailed below. If the law is unsettled on a material point, both sides are at risk - and the mediator can explore that risk in helping both sides work toward settlement. But the key point is that the disruption and opportunity cost associated with litigation has already been mounting for some years, and will continue to do so. So one of the things to work with is the “litigation fatigue” that’s already present. That, plus the chance of winning the right to a new trial and losing that trial anyway, will often convince people it’s time to come to an agreement.
Thank you for your time, Scott.
You’re welcome, it was great being able to talk.
On the other hand, allowing ourselves to become overly emotional can warp our judgment whether or not these emotions are related to the conflict at hand. For example, anger can make us overconfident. Sadness or guilt can make us too ready to concede. Disgust can irrationally lower the value we place on something. Also, our emotional displays can affect how others see us - intimidating and unpleasant, incompetent, needy, and so on.
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On the Edge
Searching For Truth In a World Full of Lies & Misconceptions by Howard Stern
Using Education to Reach Resolution in Palestinian-Israeli Conflict
When I started out as a mediator, I soon learned that parties don’t always tell the truth and parties do not always disclose all the facts of a case. Only by exploring areas where the parties don’t want to go, do I find underlying positions driven by undisclosed influences. These may well otherwise remain hidden throughout the mediation process, often masked behind a rhetoric of demands for justice or rights. Working in the Middle-East, I see the similar processes at work on a regional, national, and international scale. The ArabIsraeli conflict is one I describe as the most entrenched multi-party conflict in human history. Many think it started in 1948 when the League of Nations, having taken over from the British in governing Palestine, created a Jewish homeland called Israel. In truth it has been going on much longer. The conflict is complicated and the number of parties involved today is considerable. However, for the sake of this article, I want to focus on the two principal parties: the Israelis and Palestinians. Palestine is also known as the West Bank (of the River Jordan), Occupied Territory or Disputed Territory, depending on your position. It is ruled by its own Government called the Palestinian Authority who also administers Gaza, a small strip of land on the Mediterranean coast. The Palestinian population is almost exclusively Arab and Muslim. The Christian population in the West Bank is now just 1.2% and in Bethlehem, the birthplace of Christianity, it has fallen dramatically from 85% in the late eighties to about 9% today. This fall has been attributed to both economic
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problems stemming from the conflicts and, more significantly, the rising tide of radical Islam and persecution. Working with both Israelis and Palestinians, particularly young Palestinian Christian adults, I have seen first-hand the impact of radical Islam on this minority group.
My work involves educating and encouraging creative thinking and exploring alternatives for a better future, including the use of ADR strategies. The current generation of young adults is the first to have grown up with the internet and they are now well connected and able to chat to people around the world. They have seen what happened in Egypt where Facebookers instigated the overthrow of President Mubarrak. They witnessed the fall of Gadaffi in Libya. They now nervously watch the state of affairs in Egypt (to their south) and the emerging civil war in Syria (to their north). They see democracy at work in the west and even with its inherent faults, can see it offers far more than the tribal regimes they live under today. With this global perspective, they are beginning to question their long term future.
The Arab-Israeli dispute is principally about land, or so we are often led to believe. In truth the dispute is ideological, for the very existence of the State of Israel is anathema to the majority of Arab and Persian Muslims, especially those of fundamental disposition. It is also a serious bone of contention to the Arab families whose ancestors lived there and were displaced when the State was formed, despite the fact that Jews have always lived there. It is well known that some 700,000 Arab refugees and displaced persons were created by the newly formed State. However, as the new State of
Israel came into being on 15th May 1948, Jewish refugees numbering 850,000 were also sent quickly in the opposite direction, many in just the clothes they wore, from neighboring Arab countries. This said, today there are some 1.2 million Arabs in Israel working and living alongside their Jewish neighbors. Arabs are represented in the Knesset (Government), in the Judiciary and are involved in all aspects of the administration of the State including serving in the IDF, the Israel Defence Force. Israel provides medical care to thousands of Palestinians, some 40 tons of aid each week into Gaza, and works in collaboration with Palestinian defense and security forces to reduce outbreaks of fighting on the borders. This was well demonstrated in April this year when Israel came under sustained attack from Islamic Jihadists operating inside Gaza who randomly launched more than 250 rockets on Israeli villages and schools in a period of four days injuring many. When Israeli forces responded with a very high-tech surgical strike using drones and military aircraft killing just the jihadists, the subsequent uprising by Gazan citizens was actually policed by Gazan security forces - an admirable effort - which prevented a clash between them and IDF soldiers. So where is this conflict heading and what can be done? We’ve had the Oslo Accords, the Camp David Agreements, Tony Blair’s negotiating team and the Quartet of Nations all trying to secure peace. Numerous Presidents and Prime Ministers have all come and gone over the decades and given the conflict their best efforts. So what is it about this particular conflict that’s outlasted all others? Significantly, what could or
should be done that is different, to try to create peaceful coexistence?
I am not a particular fan of Tony Blair, but I do remember well one of his electioneering campaign speeches in the 1990s when he proclaimed the way forward was, â€œeducation education education.â€? This, I submit, is exactly what is required now to counter the prolific lies, deceptions, and misinformation endemic in many parts of the region - and indeed the general levels of ignorance that exist. On both sides the children and young people grow up with distorted views of truth, the history and reasoning behind what they live with and see around them. Misaligned Misconceptions
Working with young Palestinian adults I am always shocked at how little they truly know or understand about the history of their conflict! From an early age they have been indoctrinated with stories passed down by ancestors and a highly biased education system. One only has to look at Palestinian school books to see how young minds are being misinformed from a very young age. Arabic TV stations show childrenâ€™s cartoons with strong ideological messages embedded in them, which only serve to perpetuate an already fragile situation.
Within Jewish culture too there is fear and suspicion of their Palestinian counterparts. Jewish children grow up learning to run and hide from rocket attacks, or endure the many daily security searches in shopping malls, schools, colleges, and bus stations simply because of the possible risk of a terror attack. Tel Aviv bus station for example, is a stark reminder of the ever present threat, with its signs to the bomb shelters everywhere. Jewish children grow up living in a State
with security everywhere, propagating the belief about the perceived enemy on the other side of that tall, grey, concrete wall which now separates large stretches of Palestine from Israel. These misconceptions are perpetuated by both sides and often result in negative consequences and actions void of the requisite compassion and diplomacy needed to actually resolve this conflict.
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Emphasizing Education to Move Towards Resolution
In working with the Palestinian youth, teaching them to think differently is a big challenge. I find myself using all my skills as a mediator, combined with great patience, as I sensitively try to question and test orthodox thinking and get them to rethink its roots. The Jewish people have endured centuries of persecution. History documents their plight and struggle to survive, culminating in the holocaust. Therefore it is somewhat ironic that it was the holocaust itself, supported strongly by the Muslim Grand Mufti of Jerusalem, that caused the world to recognize the need for a Jewish State. His policy backfired beyond his imagination. So like a child perpetually bullied in the school playground, there is, deep in Jewish psychology, a strong fight response today and this defensive state of mind is in many ways quite understandable. Sometimes though I fear the bullied becomes the bully in certain situations. Equally, the Palestinians need to understand their neighbors and be honest about their history. To end this conflict both Israelis and Palestinians must also commit to educating their young as to the truth and reward peace and reconciliation, rather than propagating
Howard Stern Operating primarily in the UK and Europe, Howard works exclusively in conflict and dispute resolution. His work follows a 25 year career in project management, training and development. Howard is a member of the British Civil Mediation Council, accredited by the Centre for Effective Dispute Resolution as a mediator, and affiliated with various NGOs. His love of travel and the great outdoors has taken him to many places, sometimes in pursuit of his wider professional interests in international politics, and to explore the global pressures facing society as it copes with rapid population growth. www.amadeus-mediators.eu
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hate and suspicion. There are wonderful examples of this such as the Yad ba Yad (Hand in Hand) School in Jerusalem in which both Palestinian and Jewish students are educated together and pro-actively engage in reconciliation work. It can be done. But it requires effort, commitment and finance. The older generations are now so entrenched having suffered decades of hurt and pain that many cannot or will not change. But the young people can - and now is the time. A biblical proverb states if you train a child in the way they should go, when they are older they will not turn from it. This is what both Arab and Jew need to focus on - teaching their children to make their world a better place. And this change must come from within their own cultures and must not be imposed by any western power. That said, the price for young Palestinians to do this can be their own life when surrounded by hostile forces who seek Israel’s destruction. Whilst working in the West Bank both I and some of my young apprentices have been threatened with being shot. It is no playground for romantic idealists.
I took some young Palestinians to the Yad Vashem (Holocaust Memorial) museum in Jerusalem. It touched them profoundly and without exception they all wept as they left. I had previously explained why Israel behaves the way she does and the museum reinforced this in a way I never could. Quite simply, they got it. They understood the memories of the Holocaust were still embedded deep in Israeli psychology and for a handful of young students at least, deeply entrenched views crumbled when faced with the evidence of an attempt to wipe out the Jewish people. Having only ever heard one side of the story they had their own revelational experience that day. Most Palestinians and Israelis are tired and fed up with the ongoing problems. They all want peace. But when peace is undermined by the nefarious objectives of very well-funded and dangerous minority groups then, as is often the case, the masses suffer. However, if the world wants to see an end to this protracted conflict it must take a bottom up approach - not a top down one. I say to my apprentices if you want to see change, then you must be the change you want to see. z
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34 | ADR Times Perspectives
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Too Many Police & Not Enough Alarms Why Organizations Need to Get Better at Detecting Conflicts by Zachary Ulrich Imagine a town where the streets are constantly filled with police, but where there are no burglar alarms. There may be so many police that crime is low, since every street corner is always being monitored, but the resources and manpower required to field such a large force is overwhelming. Now, imagine if that same town was able to take the same resources it spent on that overwhelming police force and instead invest in technologies and systems that creatively assist town managers in monitoring and responding to crime. Burglar alarms are strategically placed in homes and offices, and Crime Watch groups are formed throughout the town. You get the picture. There’s “fighting crime,” and then there’s “fighting crime intelligently.” Unfortunately, every day I hear about organizations trying to manage the conflict in their organizations using what they think is efficient resource management, when really their approach resembles much more the town with a zillion cops on the street ... And I’ve found this problem even when managers thought they had the best conflict resolution system possible. Read on, and I’ll outline a few simple tips to help you make sure you are actually detecting important conflicts that may be occurring every day. Why Isn’t Conflict Management Evolving?
Two-to-three decades ago it was novel for an organization to even be thinking about implementing conflict management systems. As with any other new concept there has been a lot of trial-and-error along the way to effective implementation. But in today’s interconnected world, there’s little excuse for business leaders to be using the, “let’s train 3% of our workforce to be mediators and assume conflicts will get resolved” approach. Yet, I see it all the time. I’m not saying that these organizations only train mediators and send them into the wilds of their offices to preach the good news about conflict resolution, but if your conflict management system is primarily or almost only focusing on
36 | ADR Times Perspectives
training mediators or other interveners, I can guarantee you that there are higher paths available.
Moreover, a plethora of organizations continue to suffer from losses in employee morale and productivity, turnover, and other lost productivities unnecessarily, and they don’t even realize it. Think about it: If you stand in front of a fire hose and try to siphon off as much water as possible, but you only have a small siphon to use, you have no idea how much water you’re missing. If a manager has no idea how much conflict they’re missing with their current conflict management system, they need a way to gauge what conflict they are not actively addressing. They need more “Crime Watch groups,” and “burglar alarms.” What they probably don’t need are more policemen. They need to foster the necessary culture and create the necessary conduits to ensure that employees can effectively report conflict, but they don’t need more mediators or review panels. Without the right culture and conduits, not only is there no way to gauge whether the conflict management system is working at all, there’s also no way to gauge any improvement or degradation in that conflict management system’s effectiveness over time. So, if you are frustrated with results of your conflict management system given the resources you’ve invested, are thinking about implementing a new conflict management system, or are merely looking for ways to improve what you already have, consider the following points: Conduits and Culture, the Ultimate “Detectors”
Unlike with smoke or burglar alarms - which are mechanisms that can automatically detect and report problems so that they can be immediately addressed - conflict can never be automatically “detected” in an organization. In fact, the only real “detectors” to conflict are people, namely (1) people involved in the actual conflict; (2) people affected directly by the conflict; and, (3) people indirectly affected by,
Here are a couple of simple yet powerful questions managers in HR, ombuds, and general operations should consider when assessing their current conflict management culture: When an employee reports a conflict to their immediate supervisor, are there any political ramifications?
or witness to, the conflict. From a process management perspective, this means that the only way conflicts can even get into conflict management systems in the first place is if participants are both (1) motivated to report them, and (2) comfortable doing so. These points may seem overly simplistic, but once one breaks them down into their constituent elements, it becomes clear that there are a lot of necessary organizational mechanisms that need to be in place for effective conflict “detection” to occur. In particular, the two “C’s” to effective conflict management, are “culture,” and “conduits.” Culture comes first. 1. Culture, Culture, Culture!
“Culture” has been a big buzz word in business consulting lately. “Revolutionize your corporate culture!” and “remake your culture to maximize worker productivity!” are some of the phrases I’ve seen thrown around. But when it comes to conflict management, culture really is at the core of effective conflict detection. Why? It all comes down to human nature. People naturally tend to be more nervous about being “open” when they are in conflict. As a self-protection mechanism, humans are psychologically predisposed to “shut down,” or at least to be wary of sharing their true thoughts or knowledge, when there are real or perceived misunderstandings or malevolent intentions in others. This proclivity is especially strong when a conflict may have lasting, negative consequences for the person or people involved. All of this means that in order to report a conflict in the first place (especially at work where reputation, income, and advancement opportunities may be on the line) it often takes more than there just being a mediator or ombudsperson available for someone to come forward and actually seek organizational support for their conflict. Indeed, it often comes down to the culture of the organization, which determines whether or not an employee may feel comfortable reporting a conflict to peers or superiors. So, what to do?
By “ramifications” I’m not simply referring to whether or not a policy exists that says, “employees who report `x’ conflict will not suffer any negative consequences.” The real question is, what are the actual, typical ramifications for employees? As senior managers, it can be difficult to gauge how our lower- and middle-managers react to employees who report concerns. Managers are often motivated to sugarcoat or otherwise reframe reported conflicts, for a variety of reasons. Some managers knowingly or unwittingly discourage conflict reporting simply because of their personality or leadership style. In effect, these leaders create a culture of hiding conflict, which can pervade entire divisions of corporations. The bottom line is that there is often no direct way to gauge actual employees’ perceptions of ramifications of their conflict reporting short of having experienced conflict management consultants intervene and conduct thorough, confidential intake surveys or interviews with employee samples, on multiple levels of an organization. Short of that kind of investment, internally administered, confidential surveys are a good first step to assessing your true “conflict culture.” If employees are uncomfortable reporting their conflicts, why are they uncomfortable?
This may seem a simple question, but it really cuts to the core of why so many conflict management systems have been left ineffectual after their initial implementation. As I explained above, it’s important to find a way to get a sense for what employees really feel about their ability to report disputes. Unfortunately, that task becomes even more difficult in organizations where employees are already scared. But once you’ve found a method, the response of “why” employees do not feel comfortable reporting conflict should become the focus of your efforts moving forward. Common, candid responses are, “because my manager would punish me in ‘x’ way,” “because no one else reports them,” and, “because I don’t want to be seen as a ‘complainer’.” Whatever the reason, it’s important to address these underlying concerns while you train key employees in conflict resolution techniques. Remember that water hose analogy above? If you can effectively diagnose and begin to ameliorate the common causes of employee hesitancy to report conflicts, you are automatically going to more effectively assess just how much “water,” or, conflict, you have so far been unable to intake through the present management systems ... Which leads me to the second “C” in effective conflict management, “conduits.” 2. Conduits Should Enable Metrics
Once you have begun taking steps to assess your corporate conflict reporting culture, then it is time to begin establishing appropriate conduits for conflict reporting, all while being cognizant of how those conduits may effect employees’ desire to honestly assess their experiences. Implemented thoughtfully, there are many ways by which organizations can create effective ways for employees to not only
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report and resolve conflicts, but also to give candid feedback essential to improving the conflict management systems in place. While I will not attempt to survey the myriad different conduits that organizations of all sizes and shapes may consider, I do want to point out a few basic principles that most organizations have found effective: Self-Help and Manager Training
Bar none, the most effective (and cheapest!) means of dispute resolution is when employees can resolve conflicts themselves without the interventions of HR, ombuds, or other mediators. Yes, it’s important to have entities and trained employees ready to help address conflicts if they cannot be resolved independently, but if parties can be helped to learn communication and negotiation techniques and to apply those techniques on their own, everyone wins. As a second step on the “self-help” ladder, if employees’ managers can be trained in encouraging employees to bring their conflicts to light (perhaps as an informal facilitator of team conflict resolution sessions) it may take no more than a meeting or two to resolve disputes that could have escalated into full mediations or even more advanced conflict resolution processes. Best of all, it’s relatively easy to motivate managers and team members to report on their experience during these conflict resolution processes, since by definition they initiated the processes themselves. External Chain-of-Command Authorities
This one is fairly straightforward, and speaks directly to my first few points on the “conflict reporting culture” of an organization: If an employee needs outside assistance to resolve a conflict, it’s always better if there are individuals available who are completely removed from both (1) their everyday team structures and (2) the chain of command of supervisors currently or potentially, in the future, above them in the organizational hierarchy. In some organizations, HR serves this role - but I’ve found that having HR take on front line conflict management intervention tasks can be tricky, because often HR has other functions that can incentivize employees to not bring their grievances forward (including employee evaluations, hiring, and firing). In other organizations, there are ombudsmen who serve as independent conflict resolution specialists. Regardless of what the entity is called, and even if your organization is small, it is almost always well worth the investment to hire specialized conflict resolution employees who report directly through to the CEO in their own, independent chain of command. Moreover, this setup allows employees to feel more comfortable reporting on their experiences
ofconflict management systems in place, since it minimizes their natural fear to “shut down” when reputation other ramifications may be on the line. “Circlebacks” on Conduits of Escalation
While many companies I’ve worked with often have robust (and detailed) “road maps” of how conflict progresses through their management systems, one critical element I have often found lacking is what I like to call a “circleback,” or feedback loop. Circlebacks are opportunities for participants in a conflict to circle back to less formal or otherwise previously used methods of conflict resolution. For example, if a conflict has escalated along an organization’s system to the point where it is one step from heading to an internal arbitral board, or from heading to outside trial, one or both parties should have the opportunity to convince the other party to “circleback” to mediation if they feel it might resolve all or part of the conflict. This opportunity is especially important for the claimant, who oftentimes as they push their case forward to increasingly formal, exhaustive methods of resolution reconsider their path and wish to try relatively informal approaches such as mediation or facilitated dialogue. Whatever the case may be, feedback loops give parties the essential “safety valve” they often need to solve conflicts efficaciously when the opportunity arises to do so. Circlebacks also ensure that once in a conduit of dispute resolution the conflict still has the possibility of being resolved short of continued (and increasingly expensive) escalation. Finally, circlebacks are a means of helping employees feel more comfortable entering into a conflict resolution process (i.e., reporting conflict) in the first place, since they know there are “safety valves” they can hit if they want to do so. The primary takeaways here are these: You’re on the right track to effectively managing the costs of your conflicts if you: (1) actively seek out what conflicts you’re missing; (2) have a culture that encourages open presentation of conflicts as they arise; and, (3) have at least the essential conduit elements of self-help support, independent conflict reporting and management, and “circlebacks.” Of course, this article is far from a catch-all for conflict management essentials, but it is a broad outline for some of the most oft-missed elements of conflict management systems I see in companies today. It’s amazing to me the number of managers whose eyes pop wide open when I give some simple examples of how much time, money, and energy conflict wastes in many and variegated organizations: If you want to do a good job managing your costs of conflict, these tips are a solid starting point. z
Zachary Ulrich is a Contributing Editor at ADR Times and professional neutral and writer on mediation, psychology, and business practices. He is currently working towards his Juris Doctorate, Masters in Dispute Resolution, and Masters in Clinical Psychology from Pepperdine University. Zachary is a graduate of the two-year General Electric Financial Management Program, where he held several financial analysis positions and studied business operations and strategies from executives within the organization. He is a graduate of American University in Washington, D.C., where he obtained his BS in Finance and his BA in both Economics and International Studies. Read more articles by Zachary Ulrich at: www.adrtimes.com/articles/author/zacharyulrich
38 | ADR Times Perspectives
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40 | ADR Times Perspectives
Rising Above the Rest by Mikita Weaver
A sequoia seed is approximately the size of a tiny oat. Within Sequoia National Park stands General Sherman—the biggest tree by volume in the whole world. To put it in perspective, the proportion of a baby sequoia seed to the present size of General Sherman is the same ratio as General Sherman is to the size of the planet Earth. When the sequoia seeds fall to the ground, only one in one billion will survive. If a seed takes root and begins to grow, it will spend the first 200-500 years growing upwards in an effort to avoid competition and to reach the canopy for maximum sunlight. The tree then spends the next thousand or so years growing wider, sturdier, and stronger.
As humans, we don’t have the luxury of spending hundreds of years forming our framework or foundation. In the short life we have to live, we must make our choices with integrity. To rise above the rest, we must be ethical and take the high road. One of my first mediations taught me some insights into the importance of ethical behavior. At the time I was a youthful
idealist with the “Model Rules of Professional Conduct” and “Code of Professional Responsibility” still encoded in my memory. The case was between a client and his former attorney. Upon learning that the dispute was over unpaid attorneys’ fees, I made a concerted effort to ensure neutrality even though my initial bias would have been to sympathize with the attorney—as a young attorney myself. Within a few short minutes any sympathy I may have had for this attorney was thrown out the window. Throughout the private session, the attorney employed endless vulgarities in sharing his view of the situation and his former client. In an effort to share “wisdom” with me “attorney-toattorney,” he provided anecdotes about getting money from a client upfront before “the win” since they are otherwise ungrateful. He even went so far as to personally attack me by diagnosing my handwriting style. At the beginning of the session, this behavior merely threw me off guard. However, I became more upset with the attorney’s arrogance as he began spouting off his credentials which included being an adjunct ethics professor! I simply could not reconcile his behavior as a lawyer and an ethics professor, with
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the high standards of ethics required in both the legal and education profession. Suffice it to say, the case did not settle. Throughout the mediation, I had carefully guarded my disdain for this man’s moral character. But as the mediation ended, I wondered if the parties might have come closer to settlement had I been able to overcome my negative feelings toward this attorney. Next time I’m presented with such a situation, I’ll be sure to keep the following lessons in mind:
Steven G. Mehta is one of California’s premier, awardwinning attorney mediators, specializing in intensely-difficult and emotionally-charged cases.
Draw Boundaries about (Mis)Behavior. It’s important to request compliance with those boundaries as a matter of respect and civility. By establishing boundaries and moving past the vulgar or obscene, the parties can vent in a healthier more proactive manner. This allows the focus of mediation to shift to an exploration of the underlying interests—thereby allowing the plaintiff and defendant to search for a path that leaves each side better off. Mediator Max Factor wisely notes, “Explore this arena, and there is frequently the chance to settle unexpectedly.”
Steve’s book, 112 Ways to Succeed in Any Negotiation or Mediation, will turbo-charge your negotiation skills regardless of your experience.
Help the Parties See the Bigger Picture. The attorney failed to recognize how his actions contributed to the underlying dispute. The attorney spoke only of how clients are ungrateful without realizing that the vast majority of clients pay their fees and express
To schedule your mediation or order a copy of Steve’s new book, call
or check with your local bookseller, preferred online retailer, or online at:
www.112ways.com or www.stevemehta.com Locations in Los Angeles & Valencia Mediations throughout California
their gratitude and appreciation for their lawyers. Generally, clients are frustrated with the litigation process, but when an attorney fails to properly channel this frustration, the client often becomes angry and disappointed with the attorney’s efforts. The mediator should sit down with the individual and restart that individual on a healthier path in life. The mediation process might have been able to help the attorney reflect on his own experience with clients and why it was so different from others in the same profession. Perhaps the attorney might have realized that his own actions were at least a small factor in the client’s ultimate dissatisfaction and failure to pay. Be the Sequoia. As a mediator, our job is not to judge the parties. No matter how morally despicable or vulgar a party may be, like the Sequoia, a mediator’s role is to rise above it all. A mediator must be unwavering and remain neutral despite the parties’ tactics or maneuverings. A mediator must stand tall, serving as a source of strength and leadership. Only by removing her own belief system from the picture will the mediator be able to shape and guide the mediation process to best create fertile grounds for settlement ... and isn’t that the goal of mediation in the first place? Special thanks to Mediator Max Factor for his guidance and reflection.
Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter APLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic. Meet Mikita— www.adrtimes.com/editor-in-chief
42 | ADR Times Perspectives
JEFFREY KRIVIS | MARIAM ZADEH 16501 VENTURA BLVD., ENCINO, CA 91436 • (818) 784-4544
Jeffrey Krivis and Mariam Zadeh have resolved thousands of disputes—including mass tort, employment, business, complex insurance, catastrophic injury, entertainment and class action matters. Jeff began his mediation practice in 1989 and is recognized not only as a pioneer in the field, but also as one of the most respected neutrals in the state. Mariam joined him in 2003 after relocating from New York City as a result of the events of September 11, 2001, and having obtained her L.L.M. in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University. Both Jeff and Mariam teach negotiation and mediation skills to lawyers and judges at the Straus Institute as well as lecture regularly across the country.
Reprinted from the February 2012 issue of Southern California Super Lawyers® magazine. © 2012 Super Lawyers®, a Thomson Reuters business. All rights reserved.
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This issue of ADR TImes 'Perspectives on Dispute Resolution' includes a collection of "war stories" from a variety of ADR practitioners. www...
Published on Oct 9, 2012
This issue of ADR TImes 'Perspectives on Dispute Resolution' includes a collection of "war stories" from a variety of ADR practitioners. www...