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 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.