TIPs: Theory, Application, and Practice

Mediation Myths

March 3, 2010

There are myths  that we hear about what  mediation is and what a mediator does.

I propose telling some stories to expose three of those myths about mediation.

  1. Myth one: it’s touchy feely stuff and not real law or problem solving.
  2. Myth two: agreeing to mediate is a sign your case is weak.
  3. Myth three: if you aren’t tough in the mediation, you’ll have to compromise too much.

These are true mediation stories of cases I’ve had, made generic to preserve confidentiality: the substantive areas vary to demonstrate the issues are universal. The stories include one insurance, one estate, and one employment

  1. A nurse in a long term care facility inherited from an elderly man with dementia. The deceased’s niece and nephews contested the will. They accused her of spotting a resident with few visitors and no immediate family and influencing him to sign a will in her favour. At the mediation, her lawyer would not let her answer the question about her relationship with the deceased. He said that was touchy feely stuff and not relevant to the law of wills and estates, which was clearly on her side. In caucus she told me that she had been the deceased’s friend for over 30 years.
    What would you recommend happen next?
    Defendant lawyer admitted he had been defensive and it was a mistake to not let his client tell her story. In the next session he apologized and she told her story in a clear, credible way.– It isn’t weakness to admit a mistake and apologize. Telling your story is not touchy feely stuff. It’s real human dynamics made visible.
  2. Defendant lawyer was well prepared, briefed, and had his client, the insurance adjuster rep, ready to settle. He gave an opening statement that said they were there to resolve the claim.
    Plaintiff lawyer was not ready to settle and did not state a position for his client, the insured. His opening statement was that they were there to listen because he hadn’t expected that the defendant would come with an offer. He said that coming with an offer would suggest he thought his case was not strong enough to take to court.
    What do you think the defendant’s lawyer said / did next?
    He worked with the plaintiff’s lawyer to get him to a place of negotiation. He explained to the insured how the process could go, offered cases in support, kept the conversation pleasant and non accusatory, got to everyone’s interests, and encouraged the plaintiff to consider the offer or make a counter offer through her lawyer. Def lawyer was courteous to plaintiff and lawyer throughout. It settled in a range that satisfied everyone and plaintiff lawyer did not lose face.– Take the opportunity to settle seriously enough to add value to the client’s options. Mediation is not about having a strong or a weak case. If you’re prepared, your case can be stronger than if you are unprepared. It’s in the work you do to get ready that weakness or strength will show at mediation.
  3. The night before a mediation of a lawsuit in its 10th year of life, I got a call from plaintiff lawyer.  He said of the other lawyer: “we loathe each other,  can’t be in the same room together tomorrow with our clients.”

What would you recommend happen next?

We mediated between the lawyers one hour before the clients arrived.  They had been so tough that they lost all respect for each other and the case went on 9.5 years longer than it needed to. There’s a balance between being a pushover and being so tough that no one can negotiate

with you. Find that balance and you won’t have to compromise because you’ll be able to negotiate a win/win.

Getting knowledgeable about how mediation works makes it much easier to achieve your mediation goals. Falling for the myths of mediation makes it much easier to fall into negotiation and mediation traps.

What does it mean to be conflict ‘competent’

February 2, 2010

If the goal is to be competent in conflict situations, i.e. do conflict better, how am I defining ‘competent’ and ‘better’?

Anecdotally, I’d start with it meaning: to have appropriate skills and experience to deal with those stresses and pressures that come with interactions that reduce your sense of wellbeing and health. This assumes, of course, that conflict reduces or affects quality of life. I’m going to assume this is a reasonable assumption for most people, most of the time. While some people might enjoy being in conflict, it isn’t common.

To be more specific, being competent means having strengths and wisdom necessary to engage in effective, productive and generally happy personal interactions with others. Social interactions keep us healthy and reduce stress. Being skilled at doing this is a positive contribution towards quality of life.

Conflict competency is also an attitude. Attitudes include how we chose to perceive our interactions. We can be motivated to be competent or decide not to work on a skill set

This week, I was consulted by a delightful person and her representative. She was about to confront her manager and wanted advice on approaches that might be most likely to result in win/win for everyone. This was already a step towards becoming competent in handling conflict. She was showing the attitude of wanting to engage in an interpersonal interaction that would be effective for everyone involved.

She recounted the statement her manager made that offended her and motivated her to see me. Her representative and I suggested to her that how she took the statement might not have been what the manager intended it to mean. She said she had not thought of that. Her perspective opened to new possibilities and assumptions she was able to make.

It was a pleasure watching her attitude change as she became more conflict competent before us.

Conflict management and the movies

January 1, 2010

Some professional mediators were talking and the question came up about when to “use” conflict management techniques. Those in the conversation wanted to know when it was okay to behave ‘normally’ and when they were to behave with conflict competence. There was a lively discussion about this.

After the various arguments for and against the opinions were aired, we were left with a couple of choices. Either conflict management was a technique that one used strategically, or it was a way of being in the world much as your personality gives you a way of being in the world. Having heard the arguments in support of the positions, what might be left to propose?

A compromise seems somewhat unsatisfactory: e.g. sometimes be conflict competent and sometimes not! There isn’t an obvious reason to willingly be conflict incompetent. Is there an integrative alternative? Perhaps it is cinema that offers an insight. Every good story has a conflict at its core. A movie without a conflict is one where not much happens that an audience wants to watch. The conflict can be subtle internal angst or cars blowing up in a plotless serial display of special effects. Hollywood knows that conflict drives the story, and we are, after all, the sum of our stories. A totally peaceful life is not all that interesting.

Perhaps we can do the drama, and the venting, and exhibit our righteous indignation over the unfairness or injury. Then, we can process the information before taking a moral and ethical high road. In other words, maybe we can be both conflict competent and incompetent. We can have the full range of –˜normal’ human emotions and reactions. Then, before we react the way those human emotions and reactions are driving us to do, our conflict resolution side can slide like a veil back in front of our faces.

Is there another option, or a completely different set of questions that would reveal  "the answer?"

Conflict management lessons can come from anywhere

January 1, 2010

On 10 December, 2009, President Barak Obama accepted the Nobel Peace Prize and gave the Laureate address in Oslo, Norway. I listened with interest for many reasons, one of which was because it was the Peace Prize awarded to the President of a nation at war.–  That’s a bit challenging to get my mind around. Still, without making any judgments about the prize committee’s decision, I’m prepared to take conflict management lessons from all kinds of places. I was curious. That’s the necessary precondition to learning. I was listening. That’s the second precondition. So, what did I learn?

President Obama said it was important to have principles to follow when dealing with rogues. I’ve added how his principles apply to conflict management at work.

I.   Adhering to standards isolates those who don’t meet them and strengthens those who do.

When someone on the team is, in your opinion, slacking or acting disengaged from work, it’s tempting to feel that you are being penalized for showing up on time and doing all your work. After all, that person is getting away with goofing off, so it isn’t much incentive for you to work hard. You might get into a conflict about what you see as the unfair work distribution. President Obama said the other person may have low standards, but he or she is also isolated. Once you lower your standards to his or her level, you are keeping that person company and ending that isolation. Keeping your standards high keeps you strong.

II.   Uphold values when it’s easy and when it’s hard to do.

The values we hold at work come from several sources. First, the organization’s values are stated in the vision, mission and values statements. Also significant are the values of your discipline or your specific work. For example, if you are certified by a professional association, you are bound to follow the values of your profession or trade. If you are located within a distinct community, you may share the values of that community. Finally, and just as important, are your individual values, such as your beliefs and worldview. Sometimes, these values are in conflict with each other. When that happens, you may find you are in conflict with yourself and/or with your team. Then, it is hard to know what values to prioritize. President Obama said that it is in such circumstances that knowing and understanding your values and their place in the hierarchy of values is most important. When there’s conflict is the time to know your values and let them guide you.

III. Build a just and lasting peace.

That sounds good; what does it mean and how would I do it? Perhaps it means peace that isn’t bullt on the oppression of others. It also connotes a peace that is courageous, even where there is fear. It would be nice to have no fear, but that means having nothing to be afraid of. We don’t yet live in that world. Perhaps it will be enough to have courage when afraid. Perhaps that would build a just and lasting peace. How is that to be done? President Obama had some suggestions:

  1. Use alternatives that change behaviour with real enforcement for breaches.
  2. Don’t stand by when there is injustice that can be spoken against.
  3. Stand with allies who also support your values, moral imagination and sense of possibility.
  4. Find hope in situations and pursue that hope or there will be status quo.
  5. Value human dignity.
  6. Know what –˜ought to be’ and seek to enact it.
  7. What actions you do you must accept when others do them.
  8. To achieve resolution requires accepting responsibility and perhaps making sacrifices.
  9. Reject either / or choices and look to creative options for having justice for everyone.

Conclusion

Things happen between people and conflict can result. You are the first in line for those who can problem solve. Do I agree with the Nobel Peace Prize Committee’s choice for 2009? Irrelevant. It’s a done deal. Instead, let’s take the lessons we can get from the recipient. Conflict management lessons can come from anywhere.

Blind Spot analysis

November 11, 2009

A blind spot is anything that, because of your identity and experience and location, you cannot see or understand. This week, I was the after-meeting speaker for an association. The topic was one of my favorites, Developing Conflict Competence.

As usual, it was an interactive session in which the audience members used the information to consider their own situations. One man in the audience was particularly engaged in the discussion. His appearance is important to the story. He was a retired, white man, over six feet tall, fit and imposing. He made the point that a lot of getting along with people was just being friendly and polite. To make the point, he related that he usually greeted everyone, even strangers in cities he visited, and they almost always returned his greeting. This, he declared, proved his point that we can all contribute to better inter-personal relationships. It was a terrific reinforcement of the talk I was giving.

Then, the man decided to test whether I used the same technique to get along with people. He posed this question: when I travel, do I greet people, such as those standing waiting for the elevator with me. I replied that I frequently greet strangers but might not in the scenario he had chosen. He looked dismayed and challenged that I selectively greeted people, suggesting that I was less committed to good interpersonal relationships than he. The rest of the audience looked somewhat confused, although I can’t say for sure what they made of the exchange at that point.

So, I explained my reply. When I travel it is usually during the week when the people I am likely to meet in elevators are also business travelers. Therefore, the person standing at the elevator with me is likely to be a working male; that is, a man between late teens and late sixties. If I were to give him the big smile and hearty greeting that the man in the audience had described as his way of being friendly, the man at the elevator might just as possibly think I was making an advance or trying to hit on him. In other words, in the context, I might edit my usually friendliness to be socially appropriate for my identity, experience and location.

The man in the audience looked stunned. He said: “I’ve never heard of such a thing.” Indeed, he might not have. That does not make it less real for those of us who are women traveling alone. I assured him it was a very real consideration. He varied his surprised response: “I never thought of that.”

That’s his blind spot. He has never had reason to think what it might be like for women considering his identity, experience and location is different. There are so many places in which we have blind spots about many things. Doing a Blind Spot Analysis to determine what you are blind to, can help develop your conflict competence. There are applications of Blind Spot Analysis in any area in which you might have conflicts.

At a recent conference where I was a key note speaker, I overheard a conversation between someone eager to deny global climate change and someone from the far North who is living with the consequences of melting ice and diminishing sea life. The former worked in oil and gas, while the latter was a– government employee north of the 60th parallel. The one’s identity as an –˜Oil Man’ and location in a major city that is hub to the industry, made him blind to the experience that the Northern government employee was trying to explain. The urban dweller had no context for understanding the lived experience of the remote North.

We all have blind spots. There are very serious issues in the 21st century, with lots of potential for conflict embedded in those problems. Blind spots– add denial into the conflict while– reducing the knowledge available for solutions to emerge. If you hear yourself denying or questioning whether someone else’s stated reality and knowledge and experience is right – because it is so different from your own,  then,  perhaps, it’s time to conduct your own Blind Spot Analysis.

Apologies have a role in conflict management

August 8, 2009

Published by Deborah on August 31, 2009 in Developing Conflict Competence. 0 Comments

It happens, as an intervention proceeds, that parties in conflict learn more about the other parties’ perspectives. Often, the result is that someone wants to apologize for behaviour that seemed reasonable at the time. Learning from the discussion in the mediation what the impact of that behaviour was on the other people, can put that behaviour into a whole new light.

This week, one of the parties took me aside and asked a great question: is it seemly for a manager to apologize to someone he supervises? He was concerned about losing face, or diminishing his authority in the employee’s eyes. It’s a legitimate concern and it’s based, in part, on a belief that power comes from being strong and always in the right.

After he and I discussed it, he shared his insight into a different way of managing. He returned to the mediation table and told the employee he was sorry for how he had acted. He said he hoped that they could repair the relationship and continue to work together with more 2-way feedback than they’d had before.

The manager wasn’t giving up any power; his authority remained unchallenged. What he was offering was to learn from the communication they would henceforth have with each other. The employee was happy with the outcome and the manager felt empowered with his new knowledge.