“What did you mean by that?”

There’s a very simple question that can be used to avoid a good deal of conflict.  “What did you mean by that?”

We take our time to stew in our own heads, and we don’t communicate with people in a manner that’s beneficial or positive, because real life is hard, and people would rather text than talk.  For crying out loud, we’re now in a spot where people are using emoji to communicate with others!

The digital age has slowly reduced us from functioning human beings to cavemen and women drawing paintings on a wall.

That means when we see something posted on Facebook or Twitter, or we hear a statement from another person in public, we don’t even begin to question that person’s perspective and why they said what they said.  We just stew, make assumptions, and then create a knot in our guts that says “This person is a bad person.”

What if I told you there was an easy way to get a clear cut conflict resolution with one question?  This isn’t some Morpheus level crap, I’m telling you right now you can fix your problem with one question.

“What did you mean by that?”

Ask the person that sincerely and honestly.  Let them know you’re not picking a fight (unless that’s your place of response), but you really want to know what they meant.

When you do so, you’ll be surprised at the results.

I had a comedian at one point tell me that it was OK to commit suicide on the radio once.  He was the “heel” on a comedy show, and I was the “straight man” or “face.” I stewed on the subject for a bit, and then later that night I asked him “What did you mean by that?”

Boom.  Problem cleared up.  Issue solved.

Most people won’t take this step.  Most won’t even begin the conversation with that phrase.  They’ll just stew, because they’re afraid of conflict and doing something that will make their lives better.

Then the relationship is poisoned, the communication is over, and you don’t get the healing that is necessary.

So take that time today, tomorrow, or whenever you need to do it.  Just ask that simple question to kick-start your conversation.

“What did you mean by that?”

Why is Mediation Dead?

I recently wrote an essay claiming “Mediation isn’t only dead, it’s fucked.”

Why did I say that?  I’m a conflict resolution profesisonal, right?  Isn’t the Alternative Dispute Resolution Process that to which I should commit my life?

I do, and I have continued to live my life by that professional idea: “Choose peace.”

Only recently have I learned that conflict is unavoidable, and that mediation as a whole is not the tool that remains the be all, end all to conflict.  Sometimes, you have to fight for that which you believe in.

We killed mediation when we started with unrealistic expectations.  The beginning of the indoctrination into the world of “Alternative Dispute Resolution” means that you understand one basic fact: judges don’t want to try cases.  The judiciary wants to make sure they get home in time for dinner, and that lunch is a thing that will happen around noon any given time.

That’s why mediation looks so viable as a business model to so many.  You get the con from a well meaning person who tells you that there’s a better way to handle disputes than litigation.  You get to know that you’re not a “warrior,” that you’re a “peace provoker.”  You’re told that if you follow this method, that if you do things in this fashion, then you will be a healer, a person who mends fences, and makes the world full of shiny happy unicorns and rainbows.

We’re even told that there’s a thing called the “vanishing trial,” and that people who normally litigate are railing against the “vanishing trial” because it banishes the old trial hounds to obscurity.

None of this is true, at least under the current model of mediation.  It’s not even true under future models of mediation.  The future of “alternative dispute resolution” is the same as it always has been.  It’s one full of snake oil salespeople and those who will continue to market their personal brand of “training” as one that will lead to thousands of dollars in the pockets of those who “train” and no business for the people who actually take the training.

Mediation is so appealing to so many people because those from all walks of life have the ability to take a mediation course and become a mediator.  In my home state, if you have “job experience” and the ability to shell out a few thousand dollars a year (in both certification fees and mediation CMEs) then you’re allowed to hold yourself out as a “Listed Rule 31 Mediator.”

What does that mean?  You’re allowed to conduct “court-ordered” mediations.  You don’t get a guarantee on business. You don’t get a guarantee on that which is “court-ordered.”  You just get the ability to do business if a judge realizes you’re on his or her “list” and decides to appoint you.  This is why people are able to charge thousands more for “family” listings in Tennessee than the “Civil” listings.  It means that when you have a divorce with kids, the Volunteer state will require you to go to mediation and work through a parenting plan, spousal support, child support, and any other avenue in a power session where you may not feel comfortable with the agreement but will take it anyway because you want the entire session to be over after the fourth hour.

I suspect this series of essays will piss many people off, from judges to attorneys to those who consider themselves “peace provokers.”  That’s fine by me.  It’s long time the public and the professional sphere learned the world that is “alternative dispute resolution” is one that was poisoned and killed by their actions long before they brought mediation to the forefront of peoples’ lives.

Some times, you have to break a few eggs to make an omelette.  When you’re making multiple omelettes, you have to break a lot of eggs.  With “Mediation Is Dead,” I plan to break every single egg in the grocery store in a three step method.

The first step is to show you how mediation became a hot button topic in the legal world.  I will discuss how mediation became a viable business model for some and not for others, how “training” in this method gave some fat bank accounts and others empty promises, and how the business of mediation continues to evolve in various forms, whether through strong-arm tactics and shuttle diplomacy or through “tech” companies that want to leverage their “disruption” into a pyramid scheme to give you false expectations in the hopes you’ll make more money through nebulous terms.

The second is to bring the reality to the table.  I will show you concepts like “expectation management,” talk about conditions concerning the human condition, and discuss raw emotions that are present when a mediation takes place.  I will also discuss the presence of attorneys and “support persons” in a mediation, how novice “peace provokers” can allow these toxic influences in their respective lives, and how these influences plus “power sessions” can destroy an agreement in the long run and achieve “buyer’s remorse” in an argument.

The final step is the one I hope the most people take advantage of.  If you will listen, and read, I’m going to teach you specific communication skills that will help you avoid the mediation table.  I will teach you body language, microexpressions, learning about “emotional autism,” and how you can get out of a digital world, stop neglecting those whom you love, and face a new life.

Follow those steps and we can make sure the nails lie in the coffin of the phantasm that is “mediation,” “arbitration,” or “alternative dispute resolution.”

Two Deceptions. Two Truths.

Within the world of the law, there are two fundamental deceptions perpetuated by those who are in the system and show the world that there is “justice” for those who seek it, and “relief” for those who possess a grievance.  The deceptions are that this is a “justice” system and that “mediation” works.

The first is that it’s a “justice” system.  It’s one where people achieve “just” results.  This is a deception perpetuated by those who choose to not give their clients expectation management.  This is a deception borne out of wanting to believe the law degree they got gave them an ability to change a system that is flawed, that gives the black kid four days in jail for possessing weed, and the white college frat boy who had the same dime bag drug treatment and a diversion.

The second, more insidious one, is that an ADR (“Alternative Dispute Resolution”) process will heal families, allow for great sustainable agreements, and make sure kids are happy.  This is why people are able to charge insane sums of money for “mediation training,” and why there arethose who believe in “interest based mediation” versus “positional based negotiation.”

Here are two uncomfortable truths.

First, there is no justice system.  “Just” as a general rule implies that we achieve fairness in the way criminal cases are handled.  “Just” means that victims are served and those who truly committed a crime are punished.  If you continue to believe it must be called anything other than a “legal” system, I invite you to talk with an attorney who’s in the trenches of criminal defense and ask them how many times they’re pressured into making their client take a plea.

There is no “justice system.”  As the “ripcore” band the Kottonmouth Kings once said, “it’s just us in the system.”

Second, mediation is dead.  We killed it the moment we started from training “students” that “interest based mediation” was a thing and that people could follow it.  We killed it the moment we told people they would be able to bring “peace and healing” into family cases where attorneys “knew” in their heart of hearts that “this agreement will never work, because Judge (x)” doesn’t want it that way and it’ll never fly in his court.  We killed it when we stopped teaching people that attorneys would be in mediations, and we killed it through years of splitting parties into other rooms and tossing offers back and forth.

That’s not mediation.  That’s shuttle diplomacy, and those who tell you otherwise are lying to you.  These people who are involved in charging thousands to make sure you perpetuate a system where “it’s always been done this way” are deliberately deceiving you, and yet you will continue to use the “trusted” mediators because their methods of strong arm tactics, “shuttle diplomacy,” and pandering to the attorney as opposed to the client with the grievance means you will see no sustainable agreements.  Eventually, parties locked in long mediation sessions will come to a point where they “just want to get it done.”

Once the “agreement” is reached, and the “case settled,” the parties will eventually hit “buyer’s remorse.”  They will get to a point where they do not “agree,” they will reach inevitable conflict, and they will end up in front of a judge once more in an attempt to settle their conflict.

If the conflict resolution structure is the same as in the Volunteer State, the mediator who got the business will more than likely get return business at this point, since “disputes regarding the parenting plan” or another agreement will usually have “mediation” checked off by default during the mediation session.  That means a return to a process where in training sessions, and in CLEs, attorneys are given helpful instructions on client management for mediation like “have your client bring lunch” and “make sure they bring a computer or a book because you need to let them know they’ll be there the entire day.”

Mediation isn’t just dead.  It’s fucked.