Tag Archives: Center for Dispute Resolution

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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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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When Are Apologies Worth the Risk?


MP900387517I recently listened to a webinar sponsored by the American Bar Association section of Dispute Resolution on the power of apologies. The speaker was Ken Cloke of the Center for Dispute Resolution.

I’m familiar with apologies in the context of mediation, but beyond mediation, most of the literature on using apologies to resolve disputes is in the medical and domestic relations fields, not in the context of more general litigation or in resolving non-legal disputes. This webinar gave me the opportunity to reflect on when apologies might be helpful in a variety of disputes.

Mr. Cloke said that to be effective, apologies must

  • Contain an acknowledgment or recognition of the harm that was done,
  • Include a sincere expression of regret, and
  • Not offer any defenses or rationalizations for what was done.

According to Mr. Cloke, the apology must be be authentic and cannot legally hedged or circumspect. If the apology is defensive, it could be worse than no apology at all.

Before I go further, I want to make it clear that most of the thoughts in this post are my own. Please do not attribute anything to Mr. Cloke, and I apologize if I misstate anything he said.

1. What Impact Will It Have on Pending or Potential Litigation

Most lawyers—and I am one—are leery of apologies. Lawyers typically advise their clients not to offer apologies. There are many reasons for this reluctance, the foremost being that if a party to a lawsuit issues an apology that admits any facts or accepts any responsibility for wrongdoing, it can be an admission against interest which is then admissible as evidence in the lawsuit.

But there are exceptions. Most notably, if the apology is offered in the context of settlement discussions or mediation, then it is usually not admissible. Also, many jurisdictions now have statutes that specifically state that statements of sympathy for injury to another person is not admissible as an admission against interest. Some of these statutes are limited to the medical context (i.e., a doctor expressing sympathy that a family relative died), but others are broader.

For example, Missouri now has a statute, Section 538.229, that states:

“The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault.”

This is similar to the law in many U.S. states. By contrast, in Scotland, the law is much broader and states:

“In all civil proceedings, an apology made outside the proceedings in connection with any matter – (a) is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and (b) cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made.”

In Scotland, then, a person who might be sued has far more leeway to apologize than most potential defendants in the U.S.

Before considering an apology, it is critical that you know what the law is in your jurisdiction. Consult an attorney if the matter is already in litigation, or even if you suspect that litigation could arise from the conduct for which you might apologize.

2. How Far Can You Truthfully Go?

It is also important to think about how far you are willing to go in offering an apology. Ken Cloke made it clear that apologies that are not deemed sufficient by the other side can in fact make matters worse. It is critical that the apology be sincere and show your understanding of the impact your actions had on the other party.

But are you willing to apologize unequivocally? Maybe you disagree on the facts with the person requesting an apology. For example, if you are accused of running a red light, but truly believe you had the green light, you can’t very well apologize for running a red light and causing the accident.

By contrast, if you acknowledge you were driving inattentively, and you know your inattentiveness contributed to the accident, perhaps you can apologize for your inattention. But such an apology might not go far enough, if the other person believes himself to be wholly innocent and you believe his inattention contributed to the accident also. As stated above, your apology must not be hedged. Getting defensive during your apology is probably worse than silence. Trying to apportion blame is probably not a good idea, unless you are responding to an apology to you, in which case accepting part of the blame might help resolve the matter.

So before you apologize, think about whether you understand how what you did impacted the other person. Do you regret what you did? Do you only regret how the other person experienced what you did? Your apology must be authentic.

One good question to think about that Mr. Cloke suggests is: “If I had 20/20 hindsight, would I still have done what I did?” If not, maybe you have a basis for apologizing.

But again, work with your lawyer so you know the impact on any legal claims.

3. Is There a Relationship At Stake?

I believe there is a place for apologies in disputes, particularly when there is an ongoing relationship between the parties. That is probably why apologies are often helpful strategies in domestic relations matters, particularly where a divorcing couple will need to continue to parent together for many years.

MP900341467In the business context, relationships might also need to survive the current dispute. Sometimes an apology can help resolve an employment dispute. A senior manager might say, “I am sorry that your supervisor harassed you. That was contrary to our policy, and should not have happened. We are committed to providing you and all employees with a safe place to work, and he is no longer employed.”

Or important supplier or customer relationships might be salvaged with a strong apology. For example: “I am sorry that our supplies were delivered to you late last month. We didn’t live up to our commitment, and we recognize that you in turn missed deadlines with your customers. We have learned from our mistake and are instituting improvements in our order processing.”

So, particularly if you are in a dispute with an ongoing partner, discuss with your colleagues and attorney whether you can show that the relationship is more important to you than saving face or winning a courtroom battle. Take responsibility for your errors.

In summary, consider apologies as one way to resolve disputes, when the dispute is new and perhaps has not yet escalated. But be careful, and talk with your attorney first.

Have you ever found an apology to be helpful in resolving a dispute?

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