Getting the "Whole" story

I find it interesting how a night at the Utah Symphony often teaches me something about the work I do in mediation. It happened again. On Saturday night I attended the much lauded final performance of Keith Lockhart as the Music Director for the Symphony. I bought the tickets at the first of the season with my regular season tickets and had not thought much about it since then. I have had a hectic month or so and so my connection to the newspaper, news, the world in general has been limited (this I like!) so I missed all of the stories about the performance scheduled for that night.

The perfomance was "Leonard Bernstein's Mass" and this meant nothing to me as we drove to the Symphony that night. When we arrived I took care of the personal essentials - a cookie and the restroom - and got to my seat about 10 minutes before the perfomance began. I looked at the program notes, but did not have my glasses and the print was too small, so I didn't read anything. As the program was beginning I leaned over to my partner, who had read some of the program notes, and asked what was this about. She responded "you should have read the program notes, I cannot explain it to you now."

I sat there for the next two hours, there was no intermission, totally bewildered by what I was seeing, hearing and feeling. You see, I love the Symphony and this night I did not. I won't bore with you all the details, I'll just say that at the end I could not understand why the Musical Director had picked this performance as his last and I was disappointed.

The next morning I was headed out on my daily walk with my dog and I was listening to podcasts. I came across one from the week before which was an interview with Keith Lockhart and others on the upcoming final performance. My first instinct was to hit delete... but I didn't and I am glad I didn't. Over the next 40 minutes I listened to an amazing explaination of what I had seen and experienced the night before. As I walked and listened I found a new appreciation for what I had witnessed and been a part of the evening before. All of a sudden something that was confusing and unpleasant became something moving and interesting.

So, how does this relate to mediation and conflict resolution? Many times when I am working with parties who are unable or unwilling to talk with one another, I find it frustrating that they each have compelling stories about their side of the issue, yet they are unwilling to sit in the same room and share them. I fear that as a mediator, when I carry those stories back and forth between the parties, that something important is lost. I am not able to carry the "Wholeness" of what the parties need to hear and experience with one another. They may leave my office feeling like I did when I walked out of Symphony Hall that night, confused and disappointed. I think one of the challenges for us as mediators is to find ways for the parties to have these experiences and see the other person in context, in their "whole" story and expereince.

There is one more part to this story. One other element the guests on the podcast talked about was the difference between listening to a performance on a recorded device versus being there in person. I also relate to this. I LOVE the Symphony, but I do not enjoy listening to classical music as a recording. There are some things that you have to experience, be in the middle of, to appreciate fully and for me classical music is like that. I love it when I am sitting in Symphony Hall and the music washes over and through me. I don't have that same reaction when it is on my home stereo or ipod.

There are things that people have to experience in context and in person for them to fully understand them. Often, conflict falls into this category. For conflict resolution to happen the parties have to understand the back story of the other and to listen to the experience of the other in person. They need to allow the story and experience of the other to "wash" over and through them. It is my experience that when this can happen in a mediation, transformation begins.

Breaking the Sound Barrier

Chuck Yeager was the first person to break the sound barrier. When he landed from the flight the media ran to him and asked what he had to say. His first comment was “just before you break through the sound barrier, the cockpit shakes the most.”

When I heard this story about Chuck Yeager I couldn’t help but think about working with people in conflict. Because the “cockpit” usually has to shake before the parties are able to break through the conflict.

What would have happened if Chuck would have backed off when the cockpit was shaking? If he had backed off, he would not have broken the sound barrier and nothing would have changed. Because he pushed through the shaking and the fear of the unknown, he became a legend.

When serving as a mediator, are we doing our job if we back off when the going gets tough? Or is it our job to support the parties through the shaking and help them come out on the other side? If we don’t help them go somewhere new then what good are we?

I believe it is our job to support the parties through the shaking and help them come out on the other side, helping them to break their own sound barrier. We can only do this if we are able to tolerate the shaking ourselves…. If we stop the process because of the shaking, we are getting in the way of the parties moving forward.

How do you get through the shaking? Share with others by leaving a comment on this blog…

Be Different

There are many professions in the justice system that tell people what to do with their lives.... Judges, attorneys, court commissioners, arbitrators and early neutral evaluators to name a few. The legal system also tends to tell people what they can and can't do and how they can and can't do it.... There are certain forms, timelines, formats and protocols they must follow to appropriately file something with the court.

As mediators, we have the opportunity to be different. We have the opportunity to be client-centered and support their self-determination. My experience in serving as a mediator is that parties often don't know what to do when you won't tell them what they should do, give your opinion about their situation or tell them what you would do in their situation..... Yes, they will ask.... but does this mean we should answer? I say "NO." We should reframe the moment when they ask as a moment to push them... to challenge them... to help them to think about their situation differently... OR we can be like the rest of the system and we can tell them what to do or what we think about their situation. In sharing our thoughts and opinions about their case, we take the control away from the parties once again and become like all the others in the legal system where the focus too often is about resolving the case, not allowing the parties to resolve the issues.

I hope we, as mediators, can continue to offer a different process to parties who come to us for mediation. I hope we can sharpen our skills as mediators so that when parties are at an impasse and they look to us for help... our help comes in a form that builds the parties ability to consider ways to resolve their own dispute and we don't give into temptation and take the easy way out..... telling them what to do.

Quantum Questions

In a podcast in which Kathlyn Hendricks, Ph.D. & Gay Hendricks, Ph.D. are interviewed about relationships they share Five Quantum Questions. I think these questions can be useful in a mediation session so I wanted to share them.... They are:

1. Am I willing to resolve this?

2. How is this conflict/feeling familiar?

3. What can I say about this situation that is unarguable right now?

4. What do I really want? Specifically....

5. What is the simplest step you can take to move toward what you want?

I think these questions can be used by us when we are acting as mediators as well as we can ask the questions of ourselves when we are struggling with an issue....

For more information on the Hendricks and their work visit their website: http://www.hendricks.com/

Manipulation? Mediation?

Do Mediators Use Manipulation?

In the mediation community there has been a long standing debate regarding the manipulative nature of mediation. In the past week while conducting a Basic Mediation Training I found myself thinking a few times…. “Wow, am I telling these people to be manipulative?”

How does the possibility of manipulation enter into the mediation process? I believe there is a possibility of it in many areas……
Questions that are asked or not asked. As a mediator we make decisions throughout the mediation process regarding the questions we may ask, how we ask them, who we ask them too and something I think we don’t think of often enough…. The questions we decide not to ask.

The Tone we use in the mediation session. So much of communication is non-verbal and some of that is the tone of voice we use while interacting with the parties. Our tone of voice can set the “tone” of the mediation session. Different tones will set a different environment and we as the mediator are in control of that.

The use of Silence. Like the questions we ask or do not ask, the way we use silence, when we use silence and with whom we use silence can have an effect on the mediation session. The choice of the mediator to not use silence at a certain point in the mediation can also have an effect.

The use of Touch. This is a “touchy” subject. At times when I mediate I may reach across and touch a participant on the arm. This can be a gesture of support, a way to intervene and stop negative behavior, or can be used in a humorous moment.

Don’t get me wrong…. I don’t think that it is a bad thing if at times we employ the use of strategies that could be seen by others as manipulation. As with everything in mediation and in life, I think the key to this issue is being aware of what you are doing and why you are doing it. There are some ways in which the techniques listed above can support and enhance the mediation process and the outcome for the parties.

For example, at times the use of questions can be used to Challenge the Thinking of the participants and/or encourage them to Think in a New Way. This is the goal of mediation in my mind. If we are not assisting the parties to explore new ideas or solutions or if we are not challenging their thinking on an issue or conflict, what are we doing? We have to have a strategy in order to help the parties move down the road to possible resolution.

In reality we do control some of the outcome in certain mediation sessions. We do it differently than other professions…... It is different because we do not overtly give advice or an opinion. Does this difference ensure self determination? If we are asking or not asking leading questions, how does this impact the outcome of a given session? How do mediators reconcile this as being better than active advice?

I think we reconcile it by remembering:
Open ended questions can give parties more latitude than direct advice.
Suggestive questions are less pressure than direct advice.
“What if” questions help parties to explore the possibilities.
And finally, no one ever has to agree to any terms of settlement…….

Leading the Blind

I had a dream about my dog Maddie last night. Maddie died in March of 2006 and she taught me many things about mediation and working with people. Maddie was a mini-schnauzer and was raised with her litter mate sister Molly until Molly died on 9/11/2001.

Shortly after losing her sister, Maddie became ill and early in 2002 was diagnosed with insulin dependent diabetes. She then developed cataracts and went blind (see that sweet blind stare in her eyes). In the end her going blind was harder on me than it was on her... she did not miss a beat. So what does this have to do with mediation....?

As Maddie was going blind I found a book about Living with a Blind Dog to help "me" cope. When you have a blind animal you often have the urge to help them..... and as in mediation, sometimes helping them is actually hindering them.


One of the best things I learned from the book was that you should NEVER pick up a blind dog and transport it to a new place and put it down.... you may see this as helping, like carrying your dog from the front yard into the house.... or from one room to another in the house. In reality it confuses the dog. Blind dogs have the ability to cognitively map their surroundings, so Maddie always knew where she was and what obstacles were ahead of her. By picking her up and moving her somewhere new and just putting her down.... it would confuse her. She would not know where she was or how she got there..... it would take her a minute to adjust and figure out what just happened. Instead of picking her up, it was best for her if I would stoop down and lead her to where we were headed, that way she learned for herself how to move through the world and when she ended up somewhere, she knew how she got there.


This is the same in mediation and one of the reasons I do not believe in giving suggestions or my opinion to the parties. The parties in a mediation need to know how they reach the resolution, if they come to one... and they need to know the obstacles if they are unable to reach resolution. As mediators we may feel the urge to be helpful and pick the parties up and drop them off at a resolution that we think makes sense. The problem.... when the resolution starts falling apart the parties are not sure how or why they came to it, so they are unable to problem solve keeping it together and they don't "own" it. So, next time you are tempted to pick up the parties and take them to the resolution room, remember my baby "Maddie".... and stoop down and encourage them to the path of resolution and let them find the way themselves.

The Language of Energy

The Language of ENERGY

The white pooch is my boy "Frito"

Excerpts from Cesar’s Way by Cesar Millan

Thoughts for Mediators:

As a mediator, we have to take into account the language of Energy, our own energy and that of the participants in the mediation. There is no denying that in every mediation session, there is energy coming from every party. How you contain and move that energy as a mediator will have a great effect of the mediation session.
Things you should know about the "Language of Energy"
*There is a language that all animals speak, without even knowing it, including the human animal.
* All animals are born knowing this language instinctually. Even human beings are born fluent in this universal tongue, but we tend to forget it because we are trained from childhood to believe that words are the only way to communicate.
* The irony is, even though we don’t think we know the language anymore, we are actually speaking it all the time. Unknowingly, we are broadcasting in this tongue 24-7.
* Others can still understand us (humans and animals), they read us loud and clear, even when we’re unaware that we’re communicating.

When things become emotional in a mediation session, the energy is flowing. No one can hide the energy they are experienceing when they become emotional. As a mediator, you have to be aware of this energy, even when the parties are trying to hide it..... it is still in the room.
Energy and Emotion:
* Energy is a language of emotion.
* All the animals around you, including other humans, are reading your energy every moment of the day.
* You can say anything that pops into your mind, but your energy cannot and does not lie.

The goal as a mediator is to master the skill of having "Calm-Assertive Energy." This energy will give the participants the sense of security they need to speak freely and know thay you are going to keep the space safe. It is also an energy that is not overwhelming and will not shut participants down.
The Calm-Assertive Personality:

*This is the Energy a medaitor wants to portray.
*A calm-assertive leader is relaxed but always confident that he or she is in control.
*A calm-assertive personality is relaxed, even-tempered, but undeniably powerful, and always in charge.

Cesar shares some observations he has made over the years in regard to who animals will follow as a leader and who humans will follow.... My conclusion... our pets should be allowed to vote :~)
Power of the Pack:
* Animals won’t follow soft or weak energy.
* Animals won’t follow compassionate energy or a lovable leader.
* Animals will not follow overly excited energy.
* Animals will not follow an unstable leader, humans will.
* Animals will follow only a stable leader.

To learn more about Energy and Calm-Assertive Energy check out Cesars books.

http://astore.amazon.com/rcblog-20

Spotting a Lack of Safety

How does a mediator create safety? The advice given to those in a "Cruical Conversation" by the authors of the book "Crucial Conversations" (check out the book at http://astore.amazon.com/rcblog-20?node=2&page=2) is to step out of the content of the conversation and take care of the conditions of the conversation, then move back to the content. Don’t stay stuck in what’s being said when things are not going well, step out of the conversation, fix what is wrong with the conditions of the conversation and then step back in. The belief is that conversations go downhill when one or both parties in the conversation are not feeling safe.


So how does a mediator create safety in a mediation session? First, you have to know how people may act when they are not feeling safe in a mediation session. That is one of the problems... People who are not feeling safe act out in negative ways like yelling, finger pointing, arguing, becoming defensive, or totally shutting down and going silent.


Sometimes a mediator may take these kinds of behaviors to mean that the party is not cooperative or not trying to resolve the issues in the mediation. But, before you make these assumptions, think to yourself.... is this about safety? Should the mediator intervene and enforce ground rules, challenge the behavior of the party? Or should the mediator think about ways to create safety, make sure the party is feeling heard, take the fear out of the room?


Next time you are in a situation when a party in the mediation appears to be uncooperative... step out of the content and before you intervene ask yourself... Is this about safety? or something else.....????

Utah Supreme Court Opinion on Mediation

February 1, 2008
An interesting case out of the Utah Supreme Court today....

The case was a civil case which involved a man being injured and he filed suit against the company for negligence. The case went to mediation and in the mediation a settlement was discussed, the mediator prepared a Memo of Understanding (MOU).. but the man who was injured would not sign it because there was a term in the MOU he did not agree with. The opposing side did not believe an agreement had been reached and the injured man took them to court to try to enforce the oral agreement. The trail court judge ordered the parties in the mediation to disclose what had happened in the mediation and if an agreement had been made. The attorney who was representing the company refused to disclose this information. The trail court found that she had to disclose the information and she appealed this decision to the Supreme Court to decide if she had to disclose the content of the mediation.

The Utah Supreme Court: First, upheld the confidential nature of mediation and ruled that the attorney did not have to and could not be compelled to disclose information from the mediation session... which is great news for the mediation world.
They second ruled that an agreement made in mediation is not enforceable unless and until it is put in writing and all involve parties sign it. We have been struggling with this issue in Utah for years.... the binding nature of a mediated agreement and if it matters if the parties sign it or not... This opinion has now answered that question.

It was a good day for the mediation community in Utah in that the Supreme Court supported the confidential nature of the process and outlined when an agreement reached in mediation is binding.

In short they found "we expressly recognize the importance of maintaining confidentiality in the mediation process and hold that Utah law requires agreements reached in mediation to be reduced to a writing and signed by all the parties to the agreement in order for the agreement to be enforceable by a court."
The decision was written by the Chief Justice Christine Durham.

To read the complete opinion go to
http://www.utcourts.gov/opinions/supopin/Reese2020108.pdf

Building Confidence as a Mediator

One of the things I have noticed as I have become more comfortable mediating is when and how comfortable I am in pushing the parties and not giving up to soon. When I first started mediating I was a little bit apprehensive to push or ask certain questions when the parties were convinced that this was not going to work and they were not going to come to a settlement. As I have become more comfortable as a mediator, I have also become more comfortable in pushing the parties a little bit more and asking questions I would not have asked when I first began as a mediator. What I am finding is these questions are what will move people to settle. They push the parties to think of different ideas.



I remember a mediation I conducted that has been in civil litigation for over 4 years. The parties had made offers back and forth and back and forth. In the mediation session I encouraged them to think outside the box. I encouraged them to think of a settlement possibility that they could not get in the court that would be useful for them. In the end a settlement was reached and the parties agreed that one party would a give credit of services and product that his company made to the other party in lieu of a cash settlement. The other party had two years to use this credit. Both of the parties jumped right on the idea, it was a perfect settlement and something they could of never come to in a court hearing. The court could only look at cash damages. It was one of those win/win situations.



As you grow as a mediator you have to be a little bit assertive and be willing to ask the questions that may seem like you are keeping things going to long. There is the balance of course, that you cannot keep parties hostage until they settle and you have to know the difference. But quitting too soon is something that new mediators really need to pay attention to and make sure you work just a little bit to move the parties to settlement.

Control

Control of the Process
In basic mediation training we are all taught that we are in “control” of the process of the mediation… not the outcome. So, what does being in control of the process mean? Does it mean that you exert yourself at all costs? Do you set ground rules? Do you ever give over the “control” to maintain control?

I remember a case I mediated in which I had a very energetic party. It was a young Guardian ad Litem (GAL) in the case and he was fairly new in this role. The case was complex and the level of conflict was high so this GAL has a lot of energy wrapped up in the case.
The case involved a young child who had been abused physically and the parties were trying to determine the custody and visitation arrangements between the mother and the father. The abuse had been perpetrated by mother’s ex-boyfriend who was now being charged with criminal child abuse. So, neither of the parents directly caused the abuse, but the state child protection workers wanted both of the parents to take some responsibility in the form of failure to care charges.

The GAL was very animated and involved in the discussions regarding the care of the child. In order for me to suppress his energy and involvement in the mediation would have taken a lot of interventions and in doing so, I would have had to shut down many things that were happening in the mediation. It also happens that when he came into the room, I asked him to sit at the end of the table; instead, he pulled in right in-between the parents and their attorneys. This put him in direct line with those having the conversations.

So, he was put in the middle due to the seating arrangement as well as in regard to his role as the GAL. So, what did I do? I went with the flow. The GAL had lots of energy around the issue, he was working and engaging appropriately with both parents, so, for a portion of the mediation I basically stayed out of his way and he worked out the issues of custody and visitation.

He worked it out between the parents like a mediator would. The GAL was doing a fine job of negotiating custody and visitation, moving back and forth between the parents. The mother and her attorney were in the mediation room and the father and his attorney were in a caucus room. The GAL was the one moving back and forth negotiating the plans, instead of the mediator. I would not always do this, in fact, I would rarely do it. The reason I allowed it in this case is that I believe that we as mediators need to be aware of what is working and not working in the room. And in this case, it was working.

As mediators, we have to be flexible, we have to work with what is going on in the room and not force people into the format or the structure that we believe is best for them. Instead, we need to work with them and help them to find the format/structure that will work best for them in addressing the issues they have come to work on in mediation.

The other issue in this case was that of seating arrangements. When ever you have someone in- between the parties in conflict, they are going to end up being very involved in that conversation. My preference would have been for the GAL to be opposite me at the other end of the table and the parents to be side by side with their attorneys and the State Child Protection workers and their attorney across the table. Then, I, as the mediator, am in the middle of the conversations and in this case the parents could have had conversations without someone in the middle. Seating is very important and you have to think about it. In this case I could have been more assertive when the GAL first sat down and asked him to move, but I did not. Once I made that decision I had to work with it and not disrupt the flow of what was happening in the process.

So, as with all other things in mediation…. Control is a relative and flexible concept. I guess that is why we all love the work so much.

The Balancing Act of Time

Time .....
How much Time is really needed for a productive mediation session?

In today's world, time is in such short supply for all of us. When I present to groups or individuals and talk about mediation, one of the most common questions asked is "how much time will it take?" When I tell them it could take hours, they cringe at the thought.

I recently had a meeting with some school officials talking about truancy mediation. What we ask of the school officials is to block two hours out of their very busy day to engage in the mediation process. There is some resistance to the time and most want to know what we can do to make the process faster.

I explained to the school officicals that truancy mediation is about building relationships and building relationships takes time. Often when the student and parents come into truancy mediation they are feeling one down, they are in a powerless position. In order for them to become comfortable and to speak their truth, the first goal is to get them to feel comfortable. That takes time, time and consistency and you cannot do this in 5 minutes. You have to do this over a period of time and everyone is different, so there is no standard time.

There is also a balance to this..... in that you cannot take forever to complete a mediation. If things are not moving along, the mediator cannot continue to try everything possible hoping that parties will move in a direction that seems meaningful. Sometimes you have to be willing to let it go, end the session. In the truancy mediation program we train mediators to be aware and if the mediation is taking over two hours they should have a really good reason why it went that long. The mediator should be able to explain why the process is taking so long.

If you medaition sessions are lasting an extremly long time be willing to examine the reason your mediation sessions are taking so long....... if there is an understandable reason, OK. If you cannot identify the reason the mediation took so long, then you have some searching to do.... What is going on?

I believe that Time cannot be pushed, you cannot force through a mediation any quicker than the slowest party is grasping and moving along in the process. In addition to the parties understanding you must also take into consdieration the time that is needed to create positive relationships.

On the other side... are you losing parties by allowing the mediation session to go on for too long?
That ever present balance of TIME..........

Watch the latest videos on YouTube.com

Emotional Intelligence & Social Intelligence

Emotional Intelligence is the ability to bring intelligence to emotion. To view the human experience without bringing in emotion is short-sighted... Emotions are part of the human experience as much as thought. In his book Emotional Intelligence Daniel Goleman outlines Emotional Intelligence as:

• Knowing Ones Emotions;
• Managing Ones Emotions Appropriately;
• Motivating Ones Self;
• Recognizing and Understanding Other Peoples Emotions;
• Managing Relationships -- Managing the Emotions of Others.

Mediators who work with high conflict parties need to examine their own level of Emotional Intelligence. To appropriately intervene with parties in high emotion, I believe we must first be able to accept our own emotions and manage them, not deny or suppress them. The role of a mediator is to hold the space for parties so they can work on and address difficult issues. If the mediator is unable to accept and manage their own emotions...how can they create a space for others to accept and manage strong emotions?

I encourage all mediators to take an emotional intelligence test available on-line. There are many out there if you google for them.... One quick and easy test can be found at

http://psychologytoday.psychtests.com/cgi-bin/tests/transfer.cgi?partner=pt&part=1&teaser=0&ref=free&ad=0&test=eiq_abridged&AMT=0.00&item=Emotional%20IQ%20Test%20-%20Abridged

The next frontier appears to be Social Intelligence.... Here is an article about Daniel Goleman's latest book.....

Daniel Goleman, the author of the best-selling book "Emotional Intelligence," is back with a new book on social intelligence -- the ability to read other people's cues and then act on them.
In "Social Intelligence: The New Science of Human Relationships," Goleman says that our brain is designed to make connections with other humans, and that our relationships have a real biological impact -- whether it's flirting with the opposite sex or succeeding at work.
Social intelligence means being smart in relationships by being empathetic, or being able to sense what others are feeling and their intentions.
Secondly, it means having the social skills to act on that information.
The people with the most social intelligence are those who are good listeners, Goleman says.
You can become a better listener by being motivated and mindful in social situations.
Instead of just saying what you think, stop and listen to the other person, and fine-tune your response to them.
Once you make the effort, and practice the skill, it comes naturally.
For full article see this link
http://abcnews.go.com/GMA/Books/story?id=2496899&page=1

Check out Daniel Goleman's books:
http://astore.amazon.com/rcblog-20