Tag Archives: conflict

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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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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Managing Yourself as a Mediator


MP900387517I wrote several weeks ago about communicating with high-conflict people. In the seminar I attended, Bill Eddy of the High Conflict Institute also made the point that mediators and counselors working with high-conflict personalities need to manage their own responses during problem-solving sessions. It is a sure bet that you will face resistance from the high-conflict person, so you need to control yourself.

Although the focus of Mr. Eddy’s program was on high-conflict personalities, anyone can become high-conflict when we deal with emotional circumstances, which many disputes are. Thus, most of what he said has applicability in almost all mediations.

Here were some of his tips:

1. High-conflict personalities have a hard time with problem-solving. They need a structure. Your role is to provide that structure, but NOT TO SOLVE THEIR PROBLEM. Repeat again: Your role is NOT to solve their problem—that is THEIR responsibility.

2. Your focus should be on managing your relationship with the parties to the dispute, NOT to manage the outcome. Repeat again: Your role is NOT to manage the outcome—that is THEIR responsibility.

3. The three skills you need to have when mediating high-conflict disputes (or, really, any dispute) are

  • Connecting with empathy, attention, and respect
  • Structuring the dispute resolution process, and
  • Educating the parties about the available choices and the consequences of their choices.

Each of these skills is worthy of a post in its own right. But for me, the most helpful advice was to step back from managing the outcome to structuring and managing the process.

I know as a mediator I sometimes am too directive and occasionally too passive. It is too easy for me to jump to what I think the outcome should be, and then pushing toward that outcome or giving up when it seems the parties will never get there.

What I took away from Mr. Eddy’s program was a reminder to keep myself from owning the outcome. I need to remember that reaching a resolution is the parties’ decision, not mine. I learned that in my mediator training, but it is easy to forget. We all want to take control when we think we know best.

When have you taken responsibility for a problem that wasn’t yours to resolve?

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April is Workplace Violence Awareness Month—How To Address Potential Violence in Your Workplace


Image from the National Safety Council

Image from the National Safety Council

According to the Alliance Against Workplace Violence, April 2015 is the third year for a national observance of Workplace Violence Awareness Month. And April 28 is Workers Memorial Day, in remembrance of workers who have died at work.

I’ve addressed workplace violence before on this blog (for example, here and here), but the return of Workplace Violence Awareness Month is a good occasion to mention it again.

Workplace violence can result from actions of strangers, customers, employees, and relatives of employees. The best defense against workplace violence is awareness of the possible sources of conflict. Any strong workplace violence avoidance program should consider all these sources of violence.

 

1.  Recognizing Employees Who Might Become Violent

Obviously, businesses have the most familiarity with their employees. According to Exigo Business Solutions, here are seven behaviors to watch for in employees that can be potential warning signs of workplace violence.

  • A history of violence
  • Negative reactions to poor performance reviews
  • Drug or alcohol dependencies, which can lead to paranoia or aggressive behavior
  • Romantic obsessions which may lead to inappropriate behavior such as harassment or stalking
  • Requiring repeated instruction, repetition of errors and other concentration problems, which can indicate a troubled employee
  • Depression, which may lead to emotional or aggressive outbursts. Signs of depression can include a slowed work pace, blank facial expressions, inappropriate guilt/shame, etc.
  • Any verbal threats or other activity that is seen as ‘out of character’ for a co-worker

Note that some of these indicators are vague or difficult to determine. The best managers are familiar with their employees and notice when an employee’s behavior changes. They have a good relationship with their staffs, and employees in their organizations seek them out when there are conflicts or problems in the workplace.

 

2.  Developing an Effective Workplace Violence Prevention Program

An effective workplace violence prevention program should include

  • An assessment of the specific risks of violence at your particular workplace and an evaluation of the controls and policies already in place
  • Measures to ensure the physical security of offices and facilities, such as installing alarm systems, protective barriers, and routes for escape if danger occurs
  • Personal protective equipment, if needed, including personal-alarm systems and mechanisms for contacting security or law enforcement
  • A plan of action for responding to acts of workplace violence
  • Services to treat traumatized employees involved in an incident of workplace violence
  • Workplace-violence awareness training for employees.

See 6 Tips for Creating an Effective Workplace-Violence Prevention Program, by Tiffany Robertson, September 3, 2014, on WeComply.com (a Thomson Reuters compliance blog).

Training should cover the warning signs of a potential violent act, how to report any concerns and what to do if violence does occur. Training should cover employee’s responsibility not only for their own safety, but also for that of their coworkers, customers, and any members of the public who enter the workplace.

Workplace violence prevention is a crucial part of any crisis management program. Involve your HR and your risk management personnel in advance.

Don’t wait for the crisis to occur.

For more information on avoiding workplace violence, see:

OSHA website page on Workplace Violence

What Are You Doing for Workplace Violence Awareness Month?, by Erin Harris, April 23, 2014, Crisis Prevention Institute

Behavior Management Strategies, Crisis Prevention Institute

Spotlight on Workplace Violence Prevention and Awareness in April, WeComply.com (a Thomson Reuters compliance blog)

 

If you have experienced a threat of workplace violence, what was the most important lesson you learned?

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Resolving Conflict in the Workplace: The Earlier, the Better


Image from Forbes

Image from Forbes

As a litigator and as a mediator, I have frequently seen workplace conflicts that have escalated beyond repair. Once a manager is convinced that an employee cannot perform, it is hard to change that manager’s mind. Once an employee believes that a manager or co-worker has engaged in harassment or discrimination, there is little likelihood of salvaging the relationship. An amicable parting of the ways is usually the most that a mediator can hope for.

This was one reason I moved from practicing law into Human Resources—I wanted to move further up the process of managing workplace problems, with the hope of fixing more of them. To some extent, I was successful. But unfortunately, I found that Human Resources comes with its own baggage. Too often HR is seen by employees as in management’s pocket and by management as ineffectual or not focused on the bottom line.

Nevertheless, I came to believe that the best chance of solving workplace problems is with direct communication between managers and employees, with HR serving primarily as a coach for both parties and a referee when emotions run too high or one party or the other steps out of bounds.

But both managers and employees often do not have the communications skills needed to resolve their conflicts. A recent article on Mediate.com, Integrating Conflict Management and Workplace Mediation Practices: A Blueprint for Future Practice, by Daniel Dana, Craig Runde (February 2015), makes this point.

Messrs. Dana and Runde suggest that mediators learn to coach their clients in how to manage their differences. The skills needed, they say, include expanded self-awareness, enhanced emotional intelligence, and improved conflict communications capabilities. Here are their suggestions:

Expanding self-awareness is typically approached by coaching, interviewing, or using assessment instruments such as the Conflict Dynamics Profile or the Thomas-Killman Conflict Mode Instrument.  When people become more aware of how they typically respond to workplace conflict, they are better able to employ constructive approaches and avoid defaulting into destructive or ineffective ones.

The human experience of conflict is replete with complex emotions, and helping clients learn to manage those emotions is of great importance for conflict management practitioners.  This includes improving awareness of what triggers one’s negative emotions in the first place and developing personal practices for managing those emotions and regaining a sense of balance.

Enhancing constructive communications involves learning about one’s behavior patterns and working on lessening the use of habitual destructive behaviors.  Those habits often escalate or prolong conflict.  Improved patterns increase the use of constructive responses, which clarify issues and develop sustainable solutions that benefit both parties.

Yet Dana and Runde recognize that coaching alone will often not be enough to manage workplace conflicts. There is still a role for neutral third parties—either internal or external mediators.

Again, following the principle that resolving a conflict sooner rather than later is the best way to preserve a workplace relationship, then internal company mediators serve an important role. But bringing in an external mediator is more effective than litigating a dispute.

What has your experience been with resolving workplace conflicts? Can people learn to handle most conflicts themselves? When is a third-party essential to resolving the dispute?

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Making the Tough Calls: It’s What Leaders Do


toughdecisionsWe had a big project underway in our Human Resources Department—combining the company’s vacation and sick pay policies into a paid leave bank. The HR group had recommended this change for several years, but it had taken time to get the company’s leadership on board. This time, it looked like it was a go. We would make the change at the beginning of the next calendar year. It was October, and we were ready to communicate to managers, and then to the employee population at large.

We held one last meeting with the IT folks to confirm that our time reporting systems could handle the transition. They’d been confident in prior conversations. But this time—with the HR manager spearheading the project (one of my direct reports), my boss the Vice-President of HR, and me all present—the IT guys said, “It will take us two man-years and $150,000. Can’t be done in less than six months.”

I knew immediately that however much I wanted to support my project manager who had worked hard to bring the paid leave bank to fruition, the project was dead in the water. We couldn’t proceed without the systems in place to track employees’ time. It was a decision I didn’t want to make, but the only reasonable choice for the company at that time.

My boss and I looked at each other. I couldn’t look at the project manager, who was facing a year’s work going down the toilet. “We have to pull the plug,” I said. “We can’t do it this year.”

Whose fault was it? IT’s for not being honest in earlier meetings? My project manager’s for not pushing IT harder? It didn’t matter, the decision was clear. Ranting about who was at fault was not going to help, though the project manager and I had a couple of private conversations later about the problem.

A recent article on Inc.com, How to Control the Damage When Making Unpopular Choices, by Alix Stuart, for the March 2015 issue of Inc. magazine, reminded me of this situation.

Image from Forbes

Image from Forbes

There are times in every leader’s career when he or she must make hard choices. Do you push for what you want, or settle for what you can have? Do you take a risk or play it safe? Do you pursue Product X or Product Y?

Many times the choices are not as clear as the choice I faced over the paid leave bank. The Inc.com article makes good points about trying to communicate well in the time leading up to the decision. But ultimately, leaders have to make the call and deal with the consequences.

Dealing with the consequences requires listening to the people hurt by the decision, mitigating the harm where you can, and standing firm when you believe your decision was right. I spent many hours listening to my project manager after the decision, helping him plan our next foray into paid leave banks (which was successful). But I never thought we had any good alternative to the decision I made.

When have you had to make a tough decision and face the consequences?

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Mediation and Self-Determination


MP900385538The recent article by Robert Bush and Joseph Folger on Mediate.com entitled, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination,”  raises interesting questions about the purpose of mediation and whether mediators are adequately pursuing that purpose or not.

1.  The Purpose of Mediation Is Self-Determination

Messrs. Bush and Folger state that their premise is “that self-determination, or what we call empowerment, is the central and supreme value of mediation. [emphasis in original]” I have always accepted that premise as well—any agreement reached as a result of mediation must be truly voluntary on the part of the parties. But the interpretation I give to party self-determination seems to be more limited than what the authors of this article have in mind.

I’ve spent more than twenty years following mediation from a variety of perspectives—as an attorney, as a party representative, and as a mediator. I agree with the authors that party self-determination is often not at the forefront of mediators’ minds. On the other hand, even mediators who are not focused on self-determination can achieve good results which satisfy the parties’ needs and interests.

The essential criterion of self-determination in my mind is the ability of the parties to walk away. Even in court-ordered mediations, the parties should feel free to abandon the process after a reasonable period of time.

But I do not believe it is wrong for mediators to push the parties toward a resolution. As long as the parties feel they have another alternative to a settlement, they are exercising self-determination to stay in the room and seek agreement.

2.  Has Self-Determination Broken Down?

Messrs. Bush and Folger list many reasons why institutional pressures have led to the premise of party self-determination breaking down in mediation. Some of their reasons are

  • Our problem-solving “culture of expertise” causes mediators to push inappropriately for agreements when the parties are reluctant
  • Mediators are now often legally required to have subject-matter expertise in the fields that they mediate (in particular, perhaps, family law)
  • Regulations give preference to mediators with legal backgrounds over those with other professional expertise, sometimes even permitting lawyers to mediate without any additional training beyond their bar license.

The authors clearly support the transformative view of mediation—which has as a goal that the parties be changed by the process as they resolve their conflict, rather than simply finding a way to reduce or avoid or compensate for the conflict. In the transformative model, resolving or “fixing” the conflict is secondary to transforming and empowering the parties.

I am not a transformative mediator. I feel no need to help the parties change. I accept that my goal is to see if they can reach agreement, and to push them sometimes toward a reasonable resolution of their conflict. But I also keep enough distance from the parties to recognize that it is their conflict, and not mine.

I tell parties that I am not a transformative mediator and that I will probably push them toward settlement. I also tell them that they are free to tell me no and to tell the other party no at any point in the process.

I have mediated disputes where I know a lot about the legal issues involved and disputes where I don’t know much at all. When I don’t know the law, I feel like I am operating in the dark with respect to helping the parties. I can still help them articulate and focus their issues, but I can’t provide any information about what might happen if they don’t settle, nor can I be sure they have addressed all the issues that are a part of their conflict. I may become more transformative as a result of my lack of substantive knowledge, but I don’t know that this is a help to the parties, who are often unrepresented by legal counsel.

However, Messrs. Bush and Folger are correct that a law degree is not a perquisite to being a good mediator. Many of the best mediators I have known have been non-lawyers—social workers and psychologists make excellent mediators because they know how to help people communicate. But the best of these non-lawyers have developed a good understanding of the legal issues in the cases they mediate.

3.  Does Mediation Need To Be “Fixed”?

Among the authors’ recommendations to re-focus the field of mediation on party self-determination are that we

  • End once and for all the fiction that evaluative case settlement is mediation—the traditional “settlement conference” mode that often passes for mediation.
  • Undertake a fundamental redesign of mediator training—rather than focusing on managing the process, mediators should focus on supporting party choice.
  • Publicize how has come to denigrate rather than promote party self-determination, which the authors believe is a prime reason for the underutilization of mediation.
  • Change the requirements on mediator qualifications to eliminate demands for mediator substantive knowledge and expertise.

I think mediation can take many forms, one of which is the traditional “settlement conference” mode. That is not a transformative process, but it is a problem-solving process and has value. Not all problems need to be resolved through transformation, any more than an exchange of money can resolve all problems.

There may be an over-reliance now on training mediators to manage the process, but a failure to manage the process can result in angry exchanges that further break down the parties’ attempts to communicate, even when the intent is to “transform” them. I would not eliminate training on managing the process.

MP900341467I came away from the article by Messrs. Bush and Folger recognizing how weak I am in transformative mediation. I acknowledge that there are disputes I should not mediate because of this weakness. Where parties need to have an ongoing relationship, such as divorced parents of a minor child, they need to come to terms with their past relationship before they can move reach a successful resolution to their conflict.

On the other hand, there are times when the parties’ time, money, and other resources are limited. A mediation designed to prod them toward quick resolution of their conflict may well be in their best interests. The mediator should make it clear throughout that the decision to reach agreement is in their hands, but the mediator may also be doing them a disservice not to push when agreement seems close.

In your opinion, should mediators pay more attention to party self-determination than most mediators do today?

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