Category Archives: Mediation

Coping with Implicit Bias in Mediation


workplace-1245776_640A few weeks ago I attended a training program for mediators on implicit bias. As the presenter said, we all see every situation we encounter through the lens of our own experience. That’s what gives rise to implicit bias.

One definition I’ve seen of “implicit bias” is “a term of art referring to relatively unconscious and relatively automatic features of prejudiced judgment and social behavior.” This sounds bad, but the presenter at the training program made it clear that he did not think implicit bias is bad or wrong or morally repugnant. In his opinion, implicit bias isn’t the same as prejudice. It is simply the lens through which we see the world. We can’t escape it, but we should be aware of it.

Whether it has a moral dimension or not, implicit bias does impact every step of dispute resolution. To begin with, our view of the world colors how we interpret the events that happen to us. Moreover, the lens through which we see events stirs up different feelings and reactions about what happened in each person involved—each one of us sees the world differently.

So what should mediators do about implicit bias?

Recognize and Manage Your Own Implicit Bias.

The first step in dealing with implicit bias is to be aware of it. As mediators, we should reflect in advance what aspects of the case might trigger our own emotions, as well as those of the parties. We need to be mindful of our own hot spots.

We can prepare ourselves before a mediation by setting aside our own problems and concerns, so that we can address the parties’ needs. Some mediators engage in other physical activity before mediating. Others practice meditation or other mindfulness exercises. The point is to open our minds to being empathetic to people who come from different perspectives than we do. We need to be ready to engage the parties where they are, and not where you are.

Mediators are supposed to be neutral and impartial. Managing our own implicit bias is critical to our value to the dispute resolution process.

Recognize and Manage the Implicit Bias of the Parties.

The next step is to understand others’ perspectives. As mediators, we need to manage the process and not let the parties act vindictively. But it is important to let their emotions into the process. Let the parties tell their stories.

Asking questions in a calm and respectful manner is a good way to determine what biases each party (and each attorney) brings to the dispute. Sometimes, the parties are less of the problem than their lawyers, so it might be necessary to explore the attorney’s perspective as well as his or her client’s .

As mediators, we have to assess whether it is more productive to have these probing conversations in a joint session or in a caucus. If the parties are working well together, it can be more effective to let each person tell his or her story, then ask the other “Does that ring true for you? If not, why not?” But if they are not behaving respectfully, or if emotions rise out of control, then separation is probably best. Then, however, the mediator must act as the interpreter of the story to the other side . . . which risks bringing our own biases into the discussion.

The key to dealing with implicit biases is to treat them as an unavoidable part of the equation. They aren’t good or bad, they are just another set of variables that will impact the process and the result. Remember that mediation is designed to let the parties resolve their own conflict—biases and all.

When has your implicit bias impacted a dispute you were trying to resolve?

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Should a Mediator Let the Parties Vent?


conflictI attended a mediation training program several months ago in which the question was asked: As a mediator, should I let the parties vent or should I control what they say to each other?

First of all, let’s recognize the absurdity of thinking that a mediator can control what the parties say. A mediator can help the parties shape how they communicate, but the mediator cannot control anything.

But it is a good question to ask whether and how the parties should vent their emotions during a mediation.

I always believed–both as an attorney with clients and witnesses who were sometimes distraught and as a mediator trying to resolve sensitive disputes–that emotions were part of the case and needed to be recognized. Still, how those emotions are dealt with can affect whether the parties will reach agreement. I often found myself in the position of absorbing my client’s venting, or, in a mediation, one of the parties’ venting. I listened to them, and sometimes just having someone listen to them diffused the emotional tension in their conversation and they could move on to settle the case.

Early on, the mediator needs to assess how the parties are communicating. Can they express themselves well? Can they describe their feelings in addition to the facts? Do they listen to each other? How do they react to each other’s statements about their feelings? If the parties are already in a situation that requires mediation, it is quite likely that one or both of them cannot deal with their emotions and/or those of the other party. If they both could address the facts rationally, they would settle the matter themselves. But if they can’t deal with their emotions effectively, the mediator will most likely need to intervene.

How can the mediator intervene?

One way is to hold separate caucuses with the parties. In a caucus, the mediator can listen to the emotional content and help filter it. Then the mediator can coach the party on expressing his or her emotions in a less confrontational or blaming way. Alternatively, the mediator can convey the party’s position through shuttle diplomacy and decide what to share with the other side. Both of these methods can defuse tension. Which to use depends on how capably and quickly the party can learn to express his or her feelings constructively.

Another method to use, particularly when caucusing is impractical, is for the mediator to rephrase the emotional statements in a way that recognizes their validity but doesn’t blame the other party.

So, for example, the mediator might rephrase Employee A’s statement “Employee B is always bad-mouthing me to everyone else in the department” into “When Employee B says something about how you handled a task, you feel he is telling other people you aren’t doing a good job.” When Employee A agrees with this statement (he will likely agree or expand on the statement), then the mediator can turn to Employee B to ask, “Do you mean to imply that Employee A isn’t doing a good job?” Often this will lead to a fruitful discussion about what was really meant.

Emotions have to be considered in any mediation. How they are dealt with will depend on the parties’ communications skills and past relationship. The mediator needs to address the emotions, but must also understand that control is impossible.

When have you had to diffuse emotions during a negotiation?

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Breaking Impasse: In Congress, in Mediation, and in Life


handshake-1830764_1280A few days ago I met with a small group of professional women I know. All of us had had successful corporate careers, though our lives are taking different turns at the moment. As in many group meetings these days, at some point the conversation turned to a discussion of politics. I am probably the most conservative member of this group. Others are moderate, and a couple are quite liberal, though we all are within what I would call the “mainstream,” or center, of our political spectrum today.

We started discussing when our political system got off track—when the Republican and Democrat parties quit compromising to get things done. Some blamed Republicans for their “never say yes” attitude during the Obama Administration. These women argued, “Well, of course, the Democrats have to behave the same way now.”

Others blamed past Democratic actions, going all the way back to Senator Ted Kennedy’s scorched-earth approach to stop the Robert Bork nomination to the Supreme Court—a legal scholar who was clearly as qualified as any candidate since for the Supreme Court. “Well, of course, the Republicans have to retaliate.”

And there are many other events we could point to that might have started—or escalated—the current impasse in our political system.

Impasse, I thought to myself. We are at impasse. What has my mediation training taught me about breaking impasse?

I’ve mentioned before a mediation training presentation I attended with Ken Cloke, of the Center for Dispute Resolution. One point Mr. Cloke made during the program was that when we are in conflict with others, we have choices to make. Some of the choices we must make are

  • Whether to engage in the conflict and behave badly, or calm down and try to discuss it.
  • Whether to acknowledge the other person’s truth or deny it, remain rooted in one’s own story, and slip into biased or delusional thinking.
  • Whether to experience intense negative emotions and feelings, or to repress and sublimate them.
  • Whether to experience one’s opponent as an equal human being entitled to respect, or to demonize him or her and victimize oneself.
  • Whether to aggressively assert and hold tight to one’s position, or to search for solutions that satisfy both sets of interests.
  • Whether to forgive, reconcile and re-integrate with one’s opponent, or remain isolated and wounded deep inside.

Now, I can hear most of us saying, “Yeah, but . . . “

Yeah, but she started it.

Yeah, but he is engaging in alternative facts; there is no truth on his side.

Yeah, but I cannot repress how I feel on this issue.

Yeah, but there is no way to reconcile our two positions.

Yeah, but . . . .

Yeah, but . . . What if you did?

What if you did calm down? What if you did at least ask why the other side feels the way they do? What if you did search for solutions with an open mind? What if you did try to reconcile or compromise?

What’s the worst that could happen if you did seek compromise? It’s unlikely to be worse than the status quo.

While I started this post describing the political differences we face in our nation today, I hope readers see that the questions I’ve asked apply to most situations where we need to negotiate with others. In the corporate world. In consumer and family situations. Wherever we are obliged to work with others, we should ask

What if we tried to understand the other party’s position?

What if we tried to compromise?

Would we be any worse off than if we did nothing?

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Filed under Human Resources, Leadership, Mediation, Politics, Workplace

The Magic of Mediation


cloke-coverI recently attended a presentation by Kenneth Cloke, author of The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution (and other books). Mr. Cloke is also the Director of the Center for Dispute Resolution. His presentation was for mediators, and he asked the audience of practicing mediators and students of mediation whether any of us had experienced the magic of mediation. Many hands went up, including mine. There are times during a mediation when a corner is turned, the impasse is broken, and the parties shift from argument toward resolution.

Then Mr. Cloke asked if we knew how to create the magic—to make it happen every time. And, of course, none of us did. Not really. We just knew that sometimes it happens, sometimes it seems that we did something that helped, and sometimes the parties get there with little or no assistance from the mediator.

In fact, Mr. Cloke said he didn’t know how to create the magic either. Not reliably. But, he said, there are things that mediators can do to increase the likelihood of the magic happening.

The first time I experienced the magic of mediation was not as a mediator, but as an attorney. The mediator in that case moved the plaintiff employee in a discrimination lawsuit from wanting to be promoted to agreeing to resign, in exchange for a reasonable severance payment and a few other terms. Although most of the work was done in caucus with the plaintiff, the mediator convinced this employee it was in his best interest to leave our company and start working in another field where he could pursue his passion. Hard work for the plaintiff and for the mediator, but I’m sure the man benefited from the change—we are all better off when we work in a job we love with people who think we are doing a good job.

That case was what convinced me of the value of trying mediation in almost any dispute. If a mediator could help an individual move so far in a single day (albeit a long day), then it is worth trying to resolve any lawsuit through mediation.

  • During my years as a mediator, when I have seen the magic happen, it has usually been when the parties stop talking to me and start talking to each other.
    In one case, two branches of a family realized their family relationships were more important than the money one owed the other. They focused on preserving their relationship, and the plaintiff gave up her monetary claim, leading the defendant to make non-monetary concessions the plaintiff needed.
  • In another case, two long-term friends realized that litigation over a transaction between the two of them had gone bad was not the answer. They acknowledged that their friendship was probably over, but they decided it would be better if they just walked away from the dispute. I had proposed that as the only answer I saw—they were beyond being able to agree to the facts—but I was surprised to hear first one and then the other of them agree to this solution.
  • And in a third case, parties to a business dispute, who had not previously discussed settlement, were both able to discuss the matter rationally as soon as they got together. My presence was superfluous, other than to require them to be in the same room for the mediation. I wondered why a lawsuit had been filed in the first place.

Sometimes, a mediator can contribute to the magic, but usually all the mediator does is to help the parties look inside themselves and think about what is most important to them. When people realize that their dispute has taken over their lives, when they would rather be focused on other things, then the case can settle.

A mediator mostly helps by listening. A few guiding questions can get the parties talking and thinking. Questions such as:

1. Why is that important to you?
2. What did you expect to happen that would have avoided this conflict?
3. What would you like to have happen now?
4. Why do you care about this problem at this time?
5. Will you ever convince the other side you are right? If not, when will you stop trying?
6. What will happen if you don’t resolve your dispute?
7. What will change if you do resolve your dispute?
8. What are you not talking about that you still need to discuss?

The types of questions that can promote dialogue between the parties are endless. The point is to probe beneath the accusations and judgments that are where the parties begin. Often, these patterns in communication have gone on for years, so it might take time to get beyond them. Still, I wait in every case for the moment when the parties turn to each other. Then, maybe the magic can happen.

Mediators, when have you felt the magic of mediation?

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Will Mediators Reveal What the Other Side Says in Caucus?


mediation2During most business mediations, the mediator will at some point break the parties into separate rooms and hold private caucuses with each side. Parties often wonder what the mediator tells each side about what the other says in these private caucuses.

Mediations are confidential proceedings. Except in rare circumstances (such as a party disclosing that he or she intends to commit a crime), the mediator cannot be compelled to disclose what happens during the mediation. So the mediator will not tell anyone outside the mediation about what either party says.

But what about what one party says privately to the mediator? Will that be disclosed to the other side in the dispute?

The answer to this question depends on the ground rules that the parties and the mediator set.

The first place to look is in the mediation agreement that the mediator and the parties typically sign either in advance of the mediation or when the mediation begins. Most mediators will also raise the issue in the opening session, before they start any private caucuses.

But keep in mind that mediators often find that selective disclosure of information from one party to the other will increase the likelihood of settlement. Most mediators have a bias toward wanting to be free to communicate what they think will help resolve the dispute.

There are two general practices:

1. First Approach: The mediator can disclose anything said by one party during a caucus to the other party, unless the disclosing party tells the mediator not to reveal it.

Most mediators tell the parties up front that they will feel free to tell the other side anything that is said in caucus, UNLESS the party tells them not to. If instructed to keep the information confidential, they will do so, until the revealing party says it is all right to reveal the information. That is the easiest practice for the mediator, because they can communicate more freely during private caucuses.

This is the practice that I use, because I believe that full disclosure during a mediation is typically better.

However, it is important to respect the instructions from the revealing party. I mediated one employment case in which the employer had evidence that the employee had breached a company policy (though that wasn’t the reason the employee was fired), but the employer representative wouldn’t let me tell the employee and his attorney about that evidence. I thought this was wrong, because revealing the employer’s knowledge of the employee’s wrongdoing could well have motivated the employee to settle for less. But I followed the employer’s instruction and did not reveal what the employer told me.

I did push back in later caucuses with the employer, but the employer stood firm, so the information was not revealed to the employee during the mediation (which was successful anyway).

2. Second Approach: The mediator will not reveal anything said in caucus to the opposing party unless expressly authorized by the disclosing party to reveal it.

Sometimes mediators tell the parties they will not reveal anything said in caucus without having the express permission of the party revealing the information to disclose it. Some mediators adopt this practice because it is hard to remember what they’ve been instructed not to reveal, so they decide not to reveal anything unless disclosure has been expressly authorized.

Even if the mediator’s practice is not to reveal what the other party said, the mediator remains free to give his or her own interpretation of how the opposing caucus went. So, for example, if the mediator has not been authorized to tell the plaintif that the defendant said this was a final offer, the mediator might still say to the plaintiff that the mediator doesn’t think the defendant has much room to maneuver in reaching a settlement.

Parties should be prepared to explain to the mediator why they don’t want the information revealed. There doesn’t have to be a reason, but a good rationale (e.g., the information is a trade secret, harm to the company if it is revealed would be irreparable, and the opposing party has blabbed inappropriately in the past) might keep the mediator from pushing back in later caucuses with the revealing party, as I did in the employment case described above.

3. The practical result of these two approaches is not that different.

Whichever practice the mediator adopts, the practical result is often the same. Because one issue during the caucus is often deciding how the mediator should approach the next session with the other side—not only the amount of the next settlement proposal, but also the issues that the mediator should stress in making the case to support that offer. This requires a discussion about what should be revealed to the other side. Some mediators will role play how the information might be disclosed to the other side, and the disclosing party agrees with the mediator’s approach.

4. Attorneys and parties should be clear with the mediator about what they do not want communicated.

mediation_7Parties and attorneys who participate in mediations should always feel free to ask the mediator how he or she approaches disclosure of information to the other side.

When they reveal information to the mediator in caucus, if there is any question in a party’s or their attorney’s mind, these participants should raise the issue with the mediator. Ask the mediator what he or she intends to share with the other party. If the party/attorney doesn’t like the mediator’s approach, discuss it. Regardless what the mediator has said up front, the mediator and the disclosing party can and should agree on what will be revealed before each caucus ends.

Mediators are neutrals, which means at the least respecting each party’s desire for circumspection in revealing information to the other side. By discussing the issue openly during a caucus, parties should not later be surprised or upset by what the mediator tells the other side.

What experience do you have with mediators’ use of caucus information in a mediation?

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Reflecting Again on the Thomas Kilmann Model of Conflict Resolution


How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in Mediation

Thomas-Kilmann Model of Conflict Resolution http://www.edbatista.com/2007/01/conflict_modes_.html

Sometimes we have to relearn a lesson we thought we knew. I attended a mediation training program last week, and one of the presenters used a model similar to the Thomas-Kilmann Model of Conflict Resolution, which I wrote about on September 24, 2012, in one of the more popular posts on this blog.

The labels on the model last week were a little different. The Thomas-Kilmann model labels the five styles of conflict resolution as avoiding, accommodating, compromising, competing, and collaborating. The model last week labeled them (in the same locations on the grid) as avoidance, accommodation, negotiated compromise, competition, and interest-based bargaining. Clearly the same ideas.

I made the point in my earlier post that we each have conflict resolution styles that we prefer. Some people want to avoid conflict, others seek out competition, others are natural collaborators.

What I had to relearn was that each style of conflict resolution has its place.

The presenter last week advocated interest-based bargaining (which the Thomas-Kilmann model calls collaboration) as the highest and best method of conflict resolution. I don’t necessarily agree.

Interest-based bargaining (collaboration) may be best if the parties are interdependent and want to build an ongoing relationship. In cases like these where a conflict develops between two or more parties, searching for their mutual interests and creating a solution that fosters their future relationship is likely to be the longest lasting and most successful resolution of the conflict.

But in many cases that mediators handle (including most situations already in litigation), the parties only want to resolve the dispute in front of them. In these cases, negotiated compromise will probably work just fine. The parties may decide to move toward collaboration, if they can find mutual interests that offer more opportunities for settlement. But most of the time, it’s a matter of reaching agreement on how much one party will pay the other, and spending the time and energy to look for mutual interests is probably a waste. (Clearly, I lean toward the evaluative form of mediation, not the transformational.)

Some situations are set up to be competitions. When several businesses are bidding for a job, only one can win. The businesses are in conflict, and they are not expected to collaborate (in fact, such collusion might be illegal).

In other cases, avoidance or accommodation might be the best option. I got my car washed last weekend, and they did a lousy job, which I didn’t discover until I was back home. I weighed the merits of returning to argue that they should wash my car again for free against the time, aggravation, and $7.00 cost of getting another car wash in a couple of weeks. I avoided that conflict. I feel a bit like a schmo, but I think I did the right thing.

When have you used each style of conflict resolution? Why did you approach the situation the way you did?

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When Is Mediation NOT a Good Idea?


handshakeI was recently scheduled to mediate a case, but the day before the mediation was to take place, the plaintiff’s attorney called to tell me the case had settled. What? I thought. Without me?

But from the parties’ perspective, this was the best result possible—the case was resolved and they didn’t have to travel to the mediation or pay me. In fact, I suspect that the scheduling of the mediation is what prompted the parties to get serious about settlement. So I believe I had an impact in the case as a mediator, even though I didn’t get paid a dime.

In what situations do parties to a dispute not need a mediator?

As a starting point, let’s look at what mediation is. Mediation is a process in which a neutral person (the mediator) assists the parties to a dispute in reaching their own mutually agreed upon resolution of their differences. The parties—not the mediator, nor the judge or jury in a lawsuit—decide the outcome of the problem.

Given this description of the process, mediation is not necessary when

  • The parties have already agreed on how to settle their dispute

At that point, there is no need for a mediator, although the parties might need an attorney to help them put their agreement into writing. Or if a lawsuit has been filed, they probably need attorneys to get the case dismissed. But a mediator is only of assistance when there is a pending dispute.

  • Both sides are able to discuss the matter rationally and emotion is not an issue

Of course, no one is ever completely rational and unemotional when a significant dispute is pending. But in many business disputes, the two parties (and/or their lawyers) can resolve the matter without the need for third-party intervention (such as a mediator).

This is what happened in the situation I described at the start of this post. The parties were perfectly able to negotiate without me, and they did.

  • The matter at stake is not subject to compromise or negotiation (although most disputes do involve issues that can be negotiated)

Sometimes, there is a matter of principle on which one party wants a court to rule, such as the constitutionality of a statute. While mediation might narrow the issues in such a case, it is unlikely to resolve the whole dispute. The parties, even with the aid of a mediator cannot resolve these matters of principle, where the result desired is bigger than the dispute between the specific parties to the case.

Apart from these situations in which mediation is not needed, mediation is also not appropriate when:

  • The parties don’t know enough about the facts yet

Sometimes mediation is attempted too early in a dispute. If both parties don’t know their own facts and evidence, then it is difficult for them to negotiate and reach agreement. But it is a good idea to attempt mediation prior to investing a lot of time and money into discovery of the other side’s position. Good mediators can draw out enough facts from the parties to define the contested issues and enable a reasonable settlement.

I would not rule out early mediation in a case, but I would advise parties to know as much as possible about their own position in the dispute. And I would encourage candor during the mediation itself. Hiding facts and evidence is not likely to improve the chances of a good settlement.

  • The dispute deals with the rights of someone who is not competent to enter into a legal agreement or physically or mentally unable to participate in the process

If one party is a minor or mentally disabled, then that person is not able to participate in negotiations without a legal representative.

Also, mediation can be a long, tedious, and frustrating process. If one party does not have the physical or mental stamina to participate, then either the mediator should make allowances in the timing of mediation sessions or mediation should not occur. It’s important to be upfront with the mediator about the parties’ capacity to participate in the process.

  • There is an overwhelming imbalance between the two sides

If one party holds all the cards in the lawsuit, it might be difficult to reach a fair settlement. A good mediator is skilled at dealing with imbalances of power, but it is possible that one side might feel pressured into accepting a poor settlement.

I am inclined not to forgo mediation when I sense an imbalance of power, but I might well stop the mediation if I sense the process is unfair. I would suggest that the parties get attorneys or family members to assist them, or I would recommend they let the case proceed to litigation. Thankfully, these situations are rare.

When has mediation helped you? When has it not?

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