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://www.restorativeconnections.com/amazon.html

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

Helping Someone Gain Insight

I listen to many Pod Casts. I recently listened to one in which David Rock, the author of a new book called “Quiet Leadership” is interviewed. In the book he talks about how leaders should be taught how to help their staff think, instead of just tell them what to do. He talks about ways in which we can “help people think better, not tell them what to do”. This style of leadership is connected to mediation in that as mediators our job is to help people improve their thinking, not do the thinking for them.

David Rock outlines six steps to help some one improve their thinking….. Here is a short note on each…

1. The goal should be to help the other person “think about thinking.” To step back from
the details and drama of a situation and help the person think better.

2. Listen for Potential. When you are working with someone who is struggling….. help them
to focus on what they are doing well, the positive.

3. Speak with Intent…Simplify. Help the person to feel safe and comfortable. Think about
what you are saying and how you are saying it. Keep it short and simple, do or say in 15
minutes what it could take 60 minutes to do or say. Focus on what is Useful versus what is
Interesting.

4. Dance toward Insight. Do not tell the other person what to do and then try to convince
them it is the right thing…. guide them on a process to find their own answer.

5. Create New Thinking. This is a great step which is hard to outline. You begin with the
persons current reality and explore different ways in which the conversation could proceed.
The trick is to watch for the topic which sparks the persons energy to rise… that is your sign
to move in that direction.

6. Follow-up. This is another great piece in the interview. To make a change you have to
focus your attention on that thought and/or intention everyday. When you focus the brain,
you build new neural connections….

This is a great book not only for leaders but for mediators. David Rock is a Life Coach and believes that people want to make decisions and they want to have new insights to their concerns and problems. Most leaders, and I would say most of us as humans, are trained or learn to tell people what to do, we are not good at helping them have insights.

If you want to listen to the full interview, it is only about 30 minutes long, here is a link
http://results.podbean.com/2007/02/18/landed-fm-radio-interview-with-david-rock-ceo/

Let me know what you think…….

If you are interested in the book check it out at my Amazon store, the link is
http://astore.amazon.com/rcblog-20

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……….

Emotional Intelligence and 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:
www.restorativeconnections.com/amazon.html

Why Do Americans Love to Litigate?

Published: Thursday, June 12, 2008

Before litigation, give mediation a chance

Why do Americans love to litigate?

This is a tough question. I mean, most people aren’t crazy about lawyers. Nobody likes paying legal fees. Many people criticize the glacial pace of the judicial process. Everybody loves to rail on about crazy jury verdicts. And yet, we continue to file lawsuits, outsourcing our conflicts to lawyers and judges for resolution. Why is that?

I think there are a few reasons. The first one is because of who we are. Americans believe in justice, and we rely on juries, judges and courts to provide it. In our culture, conflict is resolved in courtrooms, in adversary proceedings, with unbiased judges in black robes and juries of our peers. We want robes, rules and gavels. In America, the resolution of conflict involves justice and ritual. This is not necessarily the case in other cultures.

Americans also seem to have a problem with negotiation. Because we have been raised believing that justice is rendered in open court, we are hesitant to talk directly and privately with our adversary. Sometimes we even view negotiation as sinister. It involves deal-making, compromise and, heaven forbid, it often goes on behind closed doors.

Please don’t misunderstand me. We have the greatest system of justice in the world. There are many, many cases that belong in a courtroom, and the rules and formalities associated with the adversary process work remarkably well. But there are also all sorts of other cases filed that could have been more efficiently resolved by the parties themselves.

There are some other interesting forces at work here, too. It’s no secret that I view mediation as a powerful and under-utilized tool for resolving business conflict. I’m always pitching business people to consider alternatives to litigation. For years, part of my pitch went like this: “In mediation, you make the rules. You control how your dispute gets resolved. You make the decisions. You’re in control over your destiny! Isn’t that terrific?” Eventually I noticed that it was at that moment of my pitch that people stopped listening to me and started dialing up their lawyer to have them file suit.

So what am I to conclude from this response? My pitch isn’t that good, for one thing. But I can’t help but wonder if maybe we aren’t really that interested in handling our own conflicts. Could it be that in reality we love having our lawyers handle it for us?

• “Don’t talk to me, call my lawyer. She’s handling it.” How often do we hear that refrain? It works great. We avoid taking responsibility for resolving the dispute. As an added bonus, we acquire a convenient crew of scapegoats if we don’t get the result we want. We can blame the lawyers, the judges and even the system itself. What a country.

But is this healthy? It certainly isn’t good for business, which spends billions each year on litigation. What toll is this taking on American business when we compete in a global economy with nations that don’t share our penchant for litigation?

Our fondness for filing suit is also damaging one of the cornerstones of our judicial system: the relationship between lawyer and client. For the system to work properly, that relationship must be based on mutual trust and respect. More and more it seems like it is turning into one of unhealthy codependence. The clients outsource their conflict to their lawyer and avoid the responsibility of negotiating and decision-making. The lawyer believes she is doing what the client wants, and litigation pays a lot of bills. In the end, when the result isn’t a good one, the lawyer and the system bear the blame, and everyone is miserable. But the beat goes on.

Ironically, part of the solution to this problem may involve rebuilding that very lawyer/client relationship. As lawyers, we might be able to improve it by making sure our clients understand that while the law is almost always relevant in dealing with a dispute, it is not necessarily determinative. There may be other alternatives available to the client that could do a better job of meeting the client’s most important interest than filing a lawsuit. As lawyers we must use the law to understand the relative strengths and weaknesses of the client’s position. But every bit as important is the role we play in helping the client decide whether asserting those legal rights in court is the best option.

As lawyers, we are ostensibly experienced negotiators. Perhaps we could add value to our services by sharing this expertise with our clients. We could choose to help them understand that they can help themselves by becoming better negotiators. Good negotiators, after all, are made, not born. Most of them can do it. This might help return the lawyer/client relationship to one based on healthy and mutual trust and respect, rather than codependence.

I can hear my brethren breathing heavily already, thinking that I’m going to put us all out of business with this nonsense. But this need not be the financial death knell for lawyers. There will always be plenty of trial work for talented litigators. Clients will still seek plenty of advice from their lawyers. But re-establishing the attorney-client relationship on principles that are built to last would be good for lawyers, clients and the justice system.

Scott Flegal is a business lawyer and mediator. Visit him online at www.flegal.com or www.negotiationworks.org