The Dilution of Mediation

Mediation is becoming diluted as a form of alternative dispute resolution. Despite being touted as the be-all, end-all of resolving conflicts, an ugly truth has emerged. You don’t need qualifications, training, or expertise to be a “mediator.” You just have to call yourself one.

This would be absurd in any other profession where dispute resolution was key. Yet in mediation, the sole requirement for you to “mediate” a case is to call yourself a mediator and run with it. You need no training in persuasion, balancing power, or helping parties find alternative outcomes. When the bodies that govern the training and expertise of mediators don’t even bother to police themselves, the term means nothing.

Consider the Volunteer State. There is a specific rule that governs the conduct of mediators. It’s Tennessee Supreme Court Rule 31. If you are to become a “Rule 31 listed” mediator you have to pay out thousands of dollars in training fees to get “certified.” Then you submit an application and take continuing mediation education (CME) classes to keep your Rule 31 status.

The dirty secret of a “Rule 31” listing is that it only puts you on a list for judges who need a mediator at a moment’s notice when parties can’t agree on a neutral. It also grants you qualified judicial immunity when performing a Rule 31 mediation. That’s it. You’re arguably better off marketing yourself as a dispute resolution professional than spending time attending the CMEs that tell you to advise litigants to pack a lunch and bring a book because they’ll be in session all day.

This means anyone can hold themselves out as a “mediator.” If you want your local pastor to “mediate” your divorce, they’re more than capable of doing it. Someone without a grasp of the law, persuasion, ability to “expand the pie” beyond nominal dispute resolution boundaries can “mediate” a case. When that person does so, their case is more than likely headed to trial.

In the legal profession, this would be untenable. Lawyers have to get a JD, pass the bar to show they’re minimally competent when practicing the law, and continually update themselves when it comes to their chosen profession. No one in their right mind would go to a criminal defense attorney and ask them to handle a bankruptcy case. The criminal defense attorney would be either desperate for money or foolish if they took said case, and an ethics complaint would most likely be in order if the crim law attorney held himself or herself out as a bankruptcy attorney.

Yet in mediation, anything goes. The party who wants to use Jim Bob from Farmer’s Insurance as the neutral of their choosing gets to do so as long as the other side agrees. Never mind Jim Bob has no training in mediation, doesn’t understand the process, or even has a solid grasp on the law that governs the case in dispute. As long as Jim Bob from Farmer’s calls himself a “mediator” he can mediate the case as he pleases, and to the parties’ detriment.

One way to fix this problem would be for mediation groups like the Alternative Dispute Resolution Commission to self-police, ensuring those who held themselves out as “mediators” actually had the minimal training and competency to fulfill a neutral’s role. This has worked wonders for the practice of Collaborative Law. If you bill yourself as a Collaborative practitioner, someone’s going to eventually ask you where you trained, who trained you, and what practice group you associate with. Insufficient answers will find you pressured to removing the “collaborative” word from your business cards.

If we set standards for training, expertise, and qualifications and enforced them for mediators as stringently as we do for doctors or lawyers then mediation standards would increase. Client satisfaction with the process would go through the roof, because the layperson would have to put in effort to see the process work. Fewer cases would go to trial, because the experienced professionals worthy of the label “mediator” would actually be able to use it.

Unfortunately, because we love to keep the playing field open, and want to see anyone become a “mediator,’ we will dilute the meaning of a very precise term in dispute resolution. And when words have no meaning in an alternative dispute resolution process, as they often do in real life, it’s easy to see why Mediation is Dead.

Saying You’re “Neutral” Doesn’t Make You A Mediator

Neutrality is the cornerstone of mediation. A mediator is to remain “neutral” to all parties during the dispute resolution process. This is to give the illusion that all sides are heard and respected as the parties work to a solution.

Saying you’re neutral and actually being a neutral are two different animals. It’s easy to utter the word as a magic cure all whenever your impartiality is questioned. Actually being neutral requires you to take both parties as equals and listen to them without bias or prejudice.

Consider the following scenario and see if you think the mediator in this scenario is a “neutral.”

An attorney and client are involved in a fee dispute. The mediator, prior to the attorney’s arrival, has a copy of the Rules of Professional Responsibility dealing with fee disputes printed out and placed in front of both parties, with what the mediator deems relevant sections to the dispute highlighted.

During the mediation, the neutral continually utters her neutrality while giving the majority of eye contact to the client, rather than listen to both sides equally. The mediator encourages the attorney to lowball an offer to settle the dispute. When the client disagrees with the amount and actually requests the attorney be paid higher, the mediator says “sometimes attorneys do discounted work for their friends and family.”

On examination of the work performed, the mediator makes comments to the attorney about his lack of knowledge on the relevant areas of the law, going so far as to call him “ignorant.” This mediator tells the attorney his conduct is illegal and unethical if he proceeds in a certain fashion, because that’s “the law.” Moreover, the alleged “neutral” even questions the value the attorney’s services added during certain months!

This isn’t neutrality. It’s the farthest thing from it. It’s not just evaluative case analysis, it’s not even arbitration, it’s outright advocacy for one party masked as a form of mediation. That a party can simply smile and say “Remember, I’m the neutral in all this” is a slap in the face to alternative dispute resolution.

Real neutrality takes hard work. Maintaining a semblance of impartiality is crucial to the process, and yet it takes one mediator like that described above to cost everyone their trust in alternative dispute resolution. If I had been part of such a scenario, I would have exited the bargaining table double quick, asked for a different mediator, or gone to a judge and asked for an Order of Reference if the other party could not agree to a different mediator.

Adding to the problem with the above hypothetical is the “mediator” commenting on the law, and one party’s alleged grasp or lack of expertise in that field. That violates neutrality rules, denigrates the legal profession, and contributes nothing to the public’s trust in the process. Several states, including my own, would call that sanctionable conduct for mediators.

Make sure your mediator is one who works to listen to both sides, even the one you don’t like. Otherwise, you run the risk of finding yourself subject to the bias and prejudices of a mediator who will pressure you in an unfair fashion to settle a case that will lead to buyer’s remorse on signing the deal.

And to my fellow practitioners of Alternative Dispute Resolution: repeating the words “I’m a neutral” or “I’m neutral” are hack, played out, and carry as much meaning these days as “I was in fear for my life” when a cop shoots a person dead in the street. It’s eventually going to a judge, and that judge is going to determine the mantra of “I’m neutral” carries as much weight.

A lack of neutrality, and outright advocacy, is one more reason why Mediation is Dead.

We Sincerely Regret Our Error

Regret. Apologies. Both are a bitch.

Last night PriceWaterhouse Cooper “sincerely regretted” mistakenly handing Warren Beatty the envelope for the Best Picture Oscar. This led to what us pro wrestling fans call a “Dusty Finish”* moment where the cast of “La La Land” stopped their acceptance speech and hand the award to the cast of “Moonlight.”

PriceWaterhouse Cooper is the accounting firm for the Oscars. They tally all the ballots and then issue the envelopes that contain the award winner names. Their official apology is a classic story of how to fuck up an “I’m Sorry” moment.

“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.

“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”

Conflict resolution occasionally requires an apology from a party. There’s three steps to a good apology. Let’s examine each, and the moments where PWC botched them.

1. I’m Sorry

This is the classic start to the apology. You say you’re sorry for what happened. It’s the basic step towards making amends for the issue central to the conflict in question.

PWC doesn’t directly admit guilt or sorrow over the incident that led to the Oscars gaffe. Their sincere regret doesn’t even mention the firm. Deep regret doesn’t cut it when you can’t even be bothered to directly admit you fucked up.

2. It was my fault.

Simply saying “I’m Sorry” in some form doesn’t cut the mustard for someone you wronged. If the situation was one you caused, the best thing to do is admit you fucked up. An admission of fault when making an apology makes you look honest and sincere to the person or parties you wronged. Owning your mistakes is crucial to an effective apology.

Here PWC didn’t even bother to admit fault. They said the presenters were given the wrong envelope, when the mistake was discovered it was immediately corrected, and that an investigation was being launched into how this occurred. Why bother even attempting an apology at this point? PWC’s essentially saying they had nothing to do with the gaffe.

3. What can I do to make this right?

This is the crucial third step to making an apology, and one that must be handled with care. You have to see if the other party is willing to let you fix the situation, and best practices are to ask the other party what steps you can take to remedy the issue.

Asking works best because it gives the other party a chance at directing a proper “fix” to the situation. Sometimes that may not work. Sometimes you may have to take a proactive step and reach out with a potential remedy. In those cases, you deal with the situation as you must and see what happens.

PWC got this issue “sort of” right.  They announced an “investigation” into what caused the gaffe. Whether that investigation will actually occur is anyone’s guess. If you think this might become a scenario where results of that investigation are announced and people actually see a resolution, you’re delusional.

PriceWaterhouse Cooper is an accounting firm that handles Hollywood’s greatest awards. They may have motivations to “sincerely regret” their fuckup instead of owning an apology and doing so properly. I have no doubt after last night PR professionals were busy sweating over every word of the “official statement” so as to not draw any ire from Hollywood’s top stars and executives.

That careful wording doesn’t make the apology any better. It just makes the entire thing as scripted as an episode of Monday Night Raw.  It also makes the entire “statement” sound disingenuous. A more heartfelt expression of regret would have resonated with the public, the Academy, and all those with time invested in the show. Now PWC must deal with the backlash.

Apologies are important when they are merited. I had to apologize for an issue I created recently, and I took the steps outlined here as best I could. It didn’t matter that I wasn’t the party who fucked up, I contributed to the fuckup. That’s a situation meriting an apology, and I did what I had to do to make sure the parties I wronged knew I not only sincerely regretted my contribution to the fuckup, I would take active steps to see the issue made right.

Who in your life that you’ve wronged deserves an apology, and what active steps will you take to make amends today?

*A good definition of the “Dusty Finish” can be found here.

Expectation Management and Mediation

“Expectation Management” is key for any party entering mediation. Lawyers representing litigants in mediation must help their clients with this valuable component, or they lose the client’s trust. Failure to adequately provide clients with realistic expectations of the process is another component of why mediation is dead.

Expectation management is as simple as it sounds. Clients entering mediation must understand the mediator is not going to massage their fragile egos, give them a tummy rub, and hand the case in full to them. As previously discussed, most mediators don’t follow their training and engage in “evaluative case analysis.” Lawyers love this, because they are used to the trenches and what jurists will rule. Mediators take the easy way out and appease the lawyers, because that’s how they get paid.

The client, or party entering mediation, doesn’t have the same view as the mediator or their counsel. Their view is that all will be resolved amicably during the mediation session, that the mediator is interested in hearing what they have to say, and will work to give them everything they want and desire outside of court.

The client’s expected scenario never happens, and they almost always end up dissatisfied with the outcome of mediation. Some lock into a “get it done” mindset, and then end up with “buyer’s remorse” after the reached agreement is a binding court order. Others will simply resent their lawyer for not getting them everything they wanted. Some might even take the unnecessary step of accusing the lawyer of malpractice.

Combat unrealistic expectations. 

If you are the litigant, know when you go to mediation you will not get everything you want. Understand you will be forced into a position where you will be told this is the best possible way to settle your case. Understand you will be under pressure from all sides to “settle” if necessary, including the so-called “mutual cheerleader,” your mediator. If you don’t like the deal, walk. Tell your lawyer you don’t like the deal, and that you want to walk. He or she might try to talk you out of it, but the final, signed mediation agreement is binding on all parties. You are only comfortable with a deal if you find it fair.

If you are a lawyer, prepare your clients for mediation. Let them know the results they want are not what they’re going to get. Start asking them about a Best Alternative To A Negotiated Agreement (BATNA) and its counterpart, the Worst (WATNA). Set a game plan for the mediation. Let the client know they might be there all day, so if there’s child care or other arrangements that must be considered those need to be dealt with before the mediation ever starts.

Unrealistic expectations and failure to manage client expectations lead to impasse. They are both reasons Mediation is Dead.

Mediation Trainers Versus Mediation Reality

Mediation trainers do their students a disservice by separating truth from reality. It’s understandable, because mediation is focused on an idealistic view of conflict resolution. The reality is worth consideration, and failure to teach that reality or understand the mechanisms that cause mediations to fail, are a reason why mediation is dead.

Most schools of mediation teach a style called “interest based mediation.” This line of thinking asks the mediator to push aside a party’s positions (I want x amount of money or extra time with the kids) and focus on interests (why a litigant wants money or extra time). If a mediator can uncover a party’s interests, they can focus on “expanding the pie” and getting both sides to come up with creative strategies that will meet everyone’s needs. This results in a “win-win” scenario for all.

The reality is when sides meet for mediation they won’t be focused on their interests. Usually when parties get together for a mediation they’re so focused on the raw emotion of the case they can’t look past how much they hate the person on the other side of the table. The mediators who don’t use some method of attention distraction (white board, flip chart, large monitor) only add to the problem, since the parties will be focused on how much they hate the other person. When both sides are represented by attorneys, the lawyers will focus on the positions. It’s what we do. There’s no time for tummy rubs when you’re negotiating a parenting plan.

Mediators are taught initially the best practice is to keep both parties at the table and get them to talk through their problems, with the aid of the mediator, and eventually come to a final conclusion. The reality is a stark contrast. Usually the mediator will issue a brief “opening statement” outlining the process, the rules, and his or her role. The parties will then get a chance to make statements regarding what brought them to the table in the first place. These statements will usually be made by counsel, since once the parties reach mediation most simply don’t want to talk to their soon to be ex spouse.* After that, the parties are ushered into separate rooms, and the mediator abandons his** training completely, listening to both sides and then taking offers from room to room.

This tactic, “Shuttle Diplomacy,” leaves a revolting taste in the mouths of those who believe in the ideals of alternative dispute resolution. But mediators require business, and those who are savvy enough to keep a recurring stream of lawyers coming in the door know this style is preferred. It’s not that mediators are keen on abandoning principle for money. It’s that they want business and prefer to keep a steady stream of income. It’s usually not the clients selecting the mediator, after all, so good business sense would involve catering to the lawyers who pay your bill with the client’s money.

Another tactic lawyers love that mediators hate is called “evaluative case analysis.” Alternative dispute resolution models are called “alternative” for a reason. The default “dispute resolution” mechanism is called “litigation.” If a mediator is keen on using interest based mediation, discussions of what might happen in court should be off the table. The focus should be on what the parties’ needs and wants, in that moment, are. Yet far too many mediators find it completely acceptable to walk into a room and tell a client “You’re in this court and Judge (x) will most likely rule this way if you go to trial, so it’s better off if you settle here. It’ll save you time and money, and it’ll make sure you get most control of the settlement you want.”

Evaluative case analysis is not mediation, and the pressure it places on a litigating party is severe. Instead of looking to an alternative route to settlement the mediator tells parties the best time to close the case is right then and now. It implants a fear of losing control in a situation where a litigant probably already feels out of control. And saving time and money are crucial to litigating parties since professional services cost money. This method implants a suggestion in the litigant’s head that only in the present moment can they take control of their lives again and reach an effective outcome. It’s dangerous to the client and unprofessional for the mediator. Yet it works, and attorneys nod, because attorneys are trained to think of how a certain judge would rule in a similar setting.

Another route in which trainers fail their students is in setting hour goals and breaks. My general rule of thumb is after four hours of mediation time I perform a “check in” to see if the parties still want to continue. This is because most people aren’t used to marathon negotiation sessions. Yet we expect them to sit in a room with their lawyer for eight or nine hours until a case is settled. That’s against the grain for the layperson, and it causes a dangerous psychological component to the mediation I call the “get it done” factor.

The “get it done” factor is a moment when a litigating party breaks down in mediation and just starts agreeing to everything. It’s not that they actually agree to what is being said, it’s the litigant’s mind shutting down and simply wanting to sign whatever is necessary to leave. Most mediators see this as a positive sign and encourage the party, cheering them on as they keep making agreements they may later regret. The attorneys are happy to see the case take positive steps forward. What no one observes is the person taking steps they may later regret because they want out of the mediator’s office and to return home.

When that party returns home and reads the signed document that will eventually become a binding court order, there’s a good chance they will experience “buyer’s remorse” very quickly. Since the document they signed is now binding on the other party too, the remorseful litigant will start to find ways their ex violated the document. This causes return business for lawyer and mediator alike, since most mediators insert language into their documents suggesting mediation as the preferred method of handling disputes. The smartest mediators make the client and lawyer sign or initial every page of the agreement, so if a litigant or their attorney take the document before a judge one of the first hurdles to overcome is an explanation of why there’s a dispute over an agreement containing your signature on every page.

Those training mediators would do prospective ADR students a better service by teaching the ideal model and then peppering that model with a good dose of reality. No law student is harmed by learning the case law and receiving a dose of how the studied holding actually plays out in a courtroom. The same standard would best serve mediators and produce a new breed, one that knows how to execute the art form and what will happen when they encounter pushback. Trainers are oblivious to this or don’t care, and the split will continue to give mediation a bad name.

The disconnect between training mediators and practicing mediators is yet another reason Mediation is Dead.

*Mediation is most common in family law cases with children. This is why I used this as an example.
**The “his” is intended only to keep this from getting cluttered with pronoun abuse.

The Mediation Is Dead Mantra

Part of my skill set involves mediation training. I am a mediator and I mediate cases. Usually those cases involve families seeking a divorce. If I work in that area, why would I maintain a website called “Mediation is Dead?” It’s an evolving answer, and an evolving statement, but one worth a discussion, so I’ll begin by saying when I mediate a case I used “Mediation is Dead” as my mantra before walking into a negotiation room.

Thank the man below for this, as well as the subsequent explanation.

Daniel Madison is one of the world’s foremost sleight of hand experts.  He’s used the mantra “Magic is Dead” for a long time. I’m a huge fan of his work, and it’s often scary how his insights into life mirror mine at times. Watch the embedded video above and substitute the word “mediation” for “magic” and Madison explains a principle in the legal world I’ve yet to fully articulate.

To add my flavor to the discussion, the mantra of Mediation is Dead is best explained by adding a phrase to the end of that statement. “Mediation is dead. It is the job of the practitioner to convince the parties and attorneys otherwise.”

When you come from that place as you enter a negotiation or mediation room, if you can truly state that in your heart, then you have the ability to get past all the bullshit attorneys and parties have as expectations for a mediator and really reach some powerful agreements with parties. You reveal their vulnerabilities and get them to show their humanity. When you get past the bright, happy, peaceful moments of your mediation training and pass through your first experiences with attorneys demanding you pander to them, you will finally reach that point where their client can reach peace with someone they never believed they’d agree with again.

Saying the words each time hurts me too. Death is a scary, painful thing. I’ve had my brush with it. I’ve been affected by it. It hurts to make the choice to take the path of peace and then see the art form you love butchered by attorneys who don’t understand what the words “alternative dispute resolution” mean. It pains me to see blown up expectations of clients massaged by counsel who begin with bluster, won’t allow their clients to speak, and begin each mediation with the parties dragged into separate rooms without as much as two minutes of a chance to see how the parties interact. If these attorneys paid attention during their Civil and Family training to get that coveted Rule 31 listing in Tennessee they’d realize it’s the parties decisions that count, and their presence is to ensure everything flies legally. It’s not about what will pass muster in someone’s court.

This is also why I don’t take the time to participate in many mediator groups, watch too much CME classes beyond what’s required of me, or read too many mediator articles.  So much of it has become polluted beyond the essence of the art form that is mediation. Gone are the days of interest-based mediation and getting to the heart of a problem. You’re more likely to get business if you simply pander to positions, study up on what a judge wants, and then play at evaluative case analysis. Every mediator that goes through training and gets a listing knows that’s not mediation. Yet that is what is expected of them.

The parties that go through mediations then take those experiences where they’re told to “bring a book or a computer” and “expect to be there all day” back to their families. After they’ve hit their “just get it done” moment, they eventually express buyer’s remorse and the whole cycle starts again, albeit with more venom this time. If they have a loved one, friend, or family member who goes through mediation, expect that party to tell their friend all about how the mediator and attorneys got to talk, and their voice remained silent.

When I start mediations, I usually do so with a deck of playing cards and a close up pad. I tell the parties in my opening statement they can’t agree on a thing, just as this entire deck is completely different. My job is to help them have an effective conversation, one that gets past the anger, rage, and other emotions they may experience in this moment so they can experience a moment of unity again.  Then I turn the cards over, showing them all identical, and say “Hopefully, by the time we’re finished, you’ll walk out of this mediation just like this deck of playing cards. In agreement and harmony.”

Echoing the words of Mr. Madison above.
I am Chris Seaton.
Mediation is Dead.

Shuttle Diplomacy: Garbage Mediation

Ask someone who’s been through a mediation what the process was like and they’ll probably describe it as follows:

“It was a long day.  We started off in the same room, the mediator said some stuff, our lawyers said some stuff, then we went into separate rooms.  The mediator came in and spoke with me, then said he’d go speak to my husband/wife. Then I waited until the mediator came back in with an offer.  This went on for several hours until we finally got an agreement in writing that I signed.  We left at separate times because we didn’t want to see each other.”

This is called “shuttle diplomacy,” and it is not mediation.  It is the bane of every sane mediator’s existence, and a practice that poisons what is left of mediation as a whole.  It’s lazy, it lacks the art of attention management real mediation requires, and leaves both sides with a bad taste in their mouths with regards to the process as a whole.  Most people who go through mediation training know this, and yet it still continues to exist as a widely practiced form of alternative dispute resolution.  This is the default to which many mediators gravitate because attorneys demand it, and one of the worst mistakes a mediator can make is marketing and tailoring a mediation practice to family law attorneys.

Shuttle diplomacy is lazy because you don’t have to work actively with conflict in one room.  Many mediators justify the practice because the “alternative” in their heads is having both parties continually focused on the anger they feel towards the other side, instead of on the issues requiring resolution.  These mediators more than likely don’t use any sort of attention management device like a whiteboard or flip chart to keep attention drawn to the issues.  It’s also safe to guess they’ve not learned how to control parties in high-conflict situations.  Finally, it’s a safe bet the mediator might be prone to capitulation when it comes to attorney demands.  All of these are problematic when it comes to ensuring a positive resolution of your dispute.

Attention management devices are key because they keep people from thinking ill of the other party and focused on the issues requiring a resolution.  No one likes staring across the table at a person that’s done them harm, physically or emotionally.  The easiest way to fix this is to have parties simply looking at something other than the other aggrieved party who they can’t stand for whatever reason, like a portable white board or flip chart.  Keeping the mediator in a position where both parties have their attention directed on the mediator and concentrated on the issues in play for resolution is a crucial way to command the room and defuse any sort of tension that might be present among the parties.

When you were in school, attention focused on the teacher, did you spend your time thinking about someone who you had issues with, or were you focused on the teacher at the front of the room and the blackboard on which he or she wrote?  If you were interested in learning the material you paid attention to the teacher and not to the guy you wanted to fight after school ended for the day.  The same holds true for mediations.  If you want to resolve your dispute with another person and “get it done,” you’re more likely to focus on the issues at hand requiring a settlement than how much you hate the other person if your attention is directed away from looking at that party.  If the mediation is taking place at the mediator’s office, some of the more high-end mediators will even use large computer monitors and case management software.  The technology adds a certain “wow” factor parties don’t normally expect and defuses tensions even more than just the white board or flip chart.

De-escalation of high conflict scenarios requires a high emotional intelligence level, an ability to read people, learn when tensions are ready to engage the irrational centers of the brain, and how to deflect or defuse those moments.  These are all art forms not readily taught in the short amount of training required to become a mediator in most states.  Becoming an exceptional mediator requires active engagement in these areas and continued commitment to learning more high-functioning levels of your craft.

If you start in “caucus,” or in separate rooms with your counsel, from the beginning then there’s a good chance your mediator is capitulating to attorney demands that parties stay in separate rooms.  If you start in the same room and caucus sessions break out immediately after opening statements, it’s a good sign the lawyers have more control over the mediation session than the mediator, or you.  This is a problem.  Allowing the mediation to break into caucus and remain there gives the lawyers more control of the mediation than you have.  If you’re a party involved in a mediation, that isn’t in your best interest.  The lawyers don’t have an issue with getting more power in the sessions, because it gives them more control and it’s another means of them justifying outlandish demands in the interest of zealous representation.

It’s not about the lawyer, though.  It’s your case and your mediation session.  You as the party can and should be the person in charge, and remain the person with the most at stake.  The best thing is for you to remain at the table with the other party in conflict, work with your mediator and the attorneys in the room, and head towards closure of your dispute.

About a year ago attorneys at a Continuing Legal Education seminar on “next level” mediation techniques admitted keeping both parties at the table was “harder,” but acknowledged the agreements reached tended to maintain a level of stability “shuttle diplomacy” agreements didn’t have.  That’s because mediation, practiced in its purest form, is extremely hard.  It’s not something you can achieve at a high level of competence with just basic training or even cursory experience.  When you do, however, and you remain committed to avoiding the “shuttle diplomacy” approach, you gain lasting results.

Shuttle diplomacy is easy, but practicing it is another reason Mediation is Dead.

Mediation Tip: Leave Your Support At Home

If you are involved in a mediation, you may be tempted to bring someone with you for “emotional support.”  This is most common in family law cases, where feelings are at an all time high and conflict is at a maximum.  When the day and time comes for your mediation, leave that person at home.  The only “support person” you need in the room is your attorney, because your “emotional support” will cost you time and money, and have you leaving with no settlement and a trial date.

“Emotional support” is a good thing when you’re going through a divorce.  You’re in a vulnerable position, and you need a good network of friends and family to make sure you get through one of the most stressful life experiences a person can undergo.  A mediation isn’t time for therapy.  It’s time for resolution of your case and an attempt to reach an agreement between you and the other party.  Bringing an “emotional support” person into the mix will tank the entire session because they’ll never think you’re getting the best deal possible and always push for you to make the other side pay for some egregious sin of the past.  You, in your raw, vulnerable state, will be highly prone to suggestion and feed off the anger your “support” person is expressing.  This will lead to the rejection of an offer, and make everyone’s life more difficult as a whole.

The best support personnel you can have is a good attorney who understands the true nature of the alternative dispute resolution process, prepares you for the mediation by discussing the best and worst alternatives to a negotiated agreement, and guides you through the mediation session with tact and a strategic approach.  By the time you are finished with the session, and an agreement reached, you will be signing an agreement that will become a binding court order.  It’s crucial you have a lawyer actually look it over and advise you if any portion of the document won’t fly before the court.

If you’re a mediator reading this and allow parties to come as “emotional support,” and those people are allowed in your lobby, or worse yet inside the mediation rooms, cease the practice immediately.  An even better practice is to discourage parties seeking your services from bringing anyone other than an attorney in writing.  Place language into your Agreement to Mediate that has the parties expressly agreeing to not bring others into the mediation rooms.  If you’re actually practicing mediation and attempting in good faith to keep both parties at the same table, instead of breaking the parties and their lawyers into caucus for a game of “shuttle diplomacy” then keeping “emotional support” parties away from the mediation is going to stop the session from devolving into a shouting match.  If you can’t be bothered to conduct the session at one table, removing the “support” personnel will still help tremendously because while you’re working with parties in one room the other side won’t have someone continually in their ear rumbling angry thoughts about how “that bitch/bastard has it coming to him/her” and “make them pay.  That’s not good enough.  You deserve better.”

Divorce is a hard process.  It’s one where people experience very real pain and grief, so it’s good they have a network of support on which they can rely in the days, weeks, and months to come following the dissolution of their marriage.  The day(s) on which mediation takes place is not a time to have those parties available to tank the resolution of a dispute.  The availability of “emotional support” persons during the mediation, and mediator permissiveness in allowing these parties in to potentially shift the power dynamics of a mediation, is one more reason why I hang my head at the current state of mediation.

Mediation is Dead.

Ignore, then Scream

You can learn more from kids about human nature than you’ll ever learn from a legal battle or a mediator.  I’m going to show you how that works by discussing a concept called “ignore, then scream.”

My eldest child had an issue when our son came home from the hospital.  The first thing she wanted to do was ignore his presence.  Eventually she had to realize our son was a part of the family, and he wasn’t going to go away anytime soon.  This put a dilemma in her head.  She had to figure out a way to stop his vocalizations when he started talking, so she started screaming whenever our son decided to “find his voice.”

It was very clear what our daughter had in mind, on reflection.  She didn’t have the means to articulate how she felt about our son speaking so she took the tack of screaming to make him be quiet.  Our son decided to use that and start getting louder, ramping up every single time he wanted to antagonize her.  It was a destructive cycle, and we needed to break it.

One attempt was first pointing out the behavior and telling our daughter what she was doing.  “He’s just talking.  You can say “Hi Baby.” That wasn’t exactly effective.  I didn’t really understand why until something from the head Professional Opportunist, James Brown, had taught me during our first conversation.  Our meeting today reinforced this.

First, my daughter was not in a position to really understand why she thought my son “talking” was a bad thing, nor did she have a means of articulating this.  Our kids are growing continually and developing their language centers.  They don’t bust out of the gate speaking English in full.  This means when kids speak, the largest method of their communication comes from the non-verbal world.  Non-verbal communication requires not just a projection of that communication “message.”  You also have to look at how the child reacts, and watch for your response to their actions.

The best example I can give you here is to discuss how you handle the screaming.  Eventually the behavior became less about the screams and more about learning why we reacted in a negative fashion to the screams.  It was an attention seeking behavior, and it had to be treated as such if one would ever see this behavior resolved.  How you resolve that behavior would largely determine how the kids would view interactions from there.

If you treat the behavior as something that’s negative, you run the risk of getting negative attention from the child and watching your child develop a pattern of negative attention seeking behavior.  Simply yelling at the child or giving them a spanking won’t fix it.  The best method we found for dealing with the screaming was to trivialize it.  Make the behavior inconsequential and silly, and then the child will eventually shape that behavior pattern into the better realm of “This is a silly behavior that doesn’t get me what I want.  It’s probably better if I modify this to get the desired result.” Consequentially, you have to take the child and reward the good behaviors with abject praise.  That was how we conquered the “ignore, then scream.”

How does this apply to family law?  Simple.  When divorce litigants get started in the process, they apply the “ignore, then scream” approach to litigation.  They don’t want to think about their respective conflict, or the problems that conflict brings.  They want to make sure they get their voice heard the most.  At the most basic stage, when they have an inkling their voice may be silenced in a conflict, the first response will be a “scream.”  They will respond, and the response will be loud and harsh.  That isn’t going to benefit anyone who doesn’t recognize the response, so here are a few tips for the conflict resolution professional to help them get to a place where they can “squelch the scream.”

Recognize the “ignore, then scream.” 

You’re going to see this as soon as you apply the thought pattern to family law.  When you recognize it the best course of action is to say to yourself “I see this for what it is, I realize it’s an “ignore then scream” and I’m going to make a positive approach to dealing with this because I don’t want bad behavior from one of my clients who is attempting to negatively seek attention from me.” That approach will give you the ability to proceed forward from a place of confidence.

Trivialize the behavior with a certain level of caution. 

You don’t want your clients thinking you believe their approach to be silly, no matter how much you may see it to be that.  However, there’s ways to direct the conversation elsewhere so you can shape the behaviors in a method advantageous to you.  Try Jerry Interventions, or another similar pattern interrupt when you see the negative behaviors occur.  That will allow you to make the behavior seem “silly” without actually telling someone “You shouldn’t do that.  It’s kind of silly.”  Better to keep the business than reject it.

Add in a laugh.  

Spot a point where you can inject a little humor into the communication.  Usually people who are going through divorces or child custody battles are so focused on the “Ignore then scream” approach they can’t take a couple minutes to just focus on something positive.  If you give someone a positive focus to approach the scenario with “relaxed confidence,” you’ve taken hold of the dialogue and you’ve gotten a positive focus for your clients without ever revealing your hand.

There’s three tips to dealing with the “ignore, then scream” approach for your family law client.  All learned from child behavior.

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.”