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Defining and Solving the Dispute Equation

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If the concept of “dispute” could be narrowed down to one equation, it might provide broad insight and simple, useful directions to professionals who deal with disputes.  After years of managing people in conflict with each other and people in conflict with the legal system, I would propose the following simple equation to describe any and every dispute:

If the left side of the minus sign is greater, there is no dispute.  If the right side of the minus sign is greater (creating a negative value), then there is a dispute.  I argue that this basic, all-encompassing formula applies to all disputes and, thereby, points out the centrality of expectations in these situations.  Based on these conclusions, I will then argue that mediators could improve and simplify their interventions by placing expectations at the focus of the mediation process.

Explanation

A dispute is an active clash between two people, whereas “conflict” is a broader concept that includes tensions and disagreements between people who are not necessarily engaging each other directly.  Two people can have clashing interests, but it is only when they expect things of each other that they are in a dispute.  And if Person A expects something from Person B in a situation that Person A is not involved in, then Person A is more of an intervener or third-party, rather than a disputant.  If both people are involved in the situation, each will have expectations for themselves (“I can handle that” or “I shouldn’t be dealing with that”) and expectations for the other (“You shouldn’t have to do that” or “Why haven’t you done this yet?”).

The reason that there is a minus symbol between the left and right side is that if we expect more from ourselves than the other, there is no dispute—we will either do the thing ourselves or not (but also not expect the other to do it either).  Then, when we expect something from someone else that we do not expect from ourselves, the other person will either meet this expectation (heading off the dispute) or will not (because they can’t/don’t expect themselves to have to comply).  As a result, when people expect more from each other than they expect from themselves, they are in a dispute.

The reason that the formula is a comparison of expectations, rather than esteem or some other variable, is that without expectations there is no dispute.  If there is only past action and resulting feelings, then there is no reason to continue interacting and no dispute (consider trying to mediate between two former friends who are each fully comfortable never talking to the other again).  Commonly, however, past transgressions often come with future expectations, such as an apology, reimbursement for losses, or an assurance that similar transgressions will not occur again.  Thus, unfulfilled expectations of each other are the reason that the parties continue to fight with each other despite the unpleasantness of the conflict.

This formula explains why certain people habitually find themselves in disputes–they expect little from themselves and much from others/the world (in the ADR Bible**, entitlement is the most grievous sin).  It also explains why some people have managed to glide through life free from disputes—they expect much from themselves and little from anyone else (in the ADR Bible, selflessness and empathy are the ultimate virtues).

**Note: I’m not referring to an actual book here.  There is no ADR Bible; unless you count the actual Bible.

Application

So, what tips or procedures can be gleaned from this schema?  I suggest that dispute resolution professionals (1) ask the parties early in the process about their expectations of the other side, (2) help them to identify and reflect on the values that underlie those expectations, and then (3) focus on each of their expectations for themselves in the situation.  The details and inner-workings of this approach would play out as follows:

  1. “What are Each of You Expecting from the Other?”

After the disputants have vented their stories, the ADR professional should ask each disputant about his or her expectations of the other.  This action would force them to be concrete in defining the dispute, offering details rather than expressions of general dissatisfaction.  Defining the dispute shifts the parties from complaining about each other to formulating demands that can be compared, considered, and explored for potential overlap.  Disputants seem to find it easier to complain than to ask for something, and shifting from reciprocal complaints to reciprocal demands is a shift from a bickering match to a negotiation.  This change in mindset is discernible and can be jarring—consider how many laundry lists of complaints are cut short with an exasperated, “What do you want from me?” (i.e., “What are you expecting from me?”).  Also, a focus on the expectations of the other side may focus the parties on the future, elevating the discussion from past misdeeds to available solutions.  Finally, focusing on expectations of the other side will bring forward the larger, critical expectations that delineate the dispute (remember, the right side of the equation is larger in the mind of each disputant).

  1. “What is Important to You about Your Expectations from the Other?”

Next, the dispute resolution professional can help the parties analyze the values behind each of their expectations of the other.  While motivations are not always stated upfront, each disputant will have deeper personal values that underlie the expectations they have for the other side.  If their expectations are worth engaging in unhealthy conflict, they will be profoundly important to the disputants.  Describing and deliberating on these values fulfill a number of productive functions in handling the dispute:

First, this conversation allows the parties to express the emotional core of their positions—the values on which they hinge their demands of the other side often have a strong emotional component.  This expression of the emotional core then shifts the emotional component of the discussion to a more rational level.  When the emotional centers of the brain—the fight-or-flight mechanisms of the lower brain structures—are active, they short-circuit the more rational levels, hindering problem-solving and decision-making.  So, negotiating with emotions is akin to offering an amount of money to someone to not be afraid; whereas, speaking to someone about their fears is akin to psychotherapy, allowing them to think through and rationalize the thought processes behind their fears.

Furthermore, when the parties express the emotional core behind their expectations, it brings each party to express the motivations behind their demands.  While unassisted disputants tend to focus on stating complaints and demands instead of explaining them, this conversation reveals their internal thinking.  This may lead to overlaps in values and goals between the parties (e.g., “It appears that both of you believe in the value of a close parent-child relationship”), from which the dispute resolution professional can build a mutual agenda for negotiation.  However, even when they do not overlap, discussing underlying values may better allow the parties to understand each other and discuss their differences.  Because these values are internal to each disputant, they cannot be debated or contradicted—for better or worse, it is what the other side is thinking.  If they argue over their respective interpretations, they will be using their differing perspectives to offer each other new ways of thinking, they will be debating perspectives rather than attacking each other personally, and they should be better able to “agree to disagree” on what they cannot change and negotiate with their differing perspectives in mind.

Finally, stating the values behind their expectations of the other side will establish a high benchmark (the right side of the equation being larger than the left side) from which each disputant’s expectations for themselves can be measured…

  1. “…And What are Your Expectations from Yourself in this Situation?”

Disputants are often only able to discuss their own contributions to a conflict after they have fully expressed their demands (their expectations from the other side) and the emotions and justifications behind these demands (the values underlying these expectations).  So, after a lengthy discussion of expectations and values, shifting the disputants from a focus on the other to a focus on themselves should feel logical and organic.  And, because the parties have expressed high expectations of each other and then argued that these demands are supported by their personal values, they will then be confronted with applying these standards to themselves.  Human beings have a deep psychological tendency toward consistency and should find it mentally grating to demand one standard from the other side and then apply a different standard to themselves.

I would predict that, placed in this situation, most parties will make a reciprocal demand/offer (i.e., “I’d be willing to do action in line with this value system if the other side did as well”).

 

Thus, I would argue that the above formula is a useful schematic for defining disputes and that the proposed three questions will best solve the equation and resolve the dispute.

Wait: The Magic of Mediation

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It’s a common mediation experience.  You are sitting with two disputants, keeping a conversation alive by avoiding inflammatory words and topics, when one or both of the parties come down from their initial positions to reach an agreement.  Though they are common enough, these moments are referred to as “mediation magic.”  The mediator does not know exactly what he or she did, but it worked.

This occurrence may be explained by an article in the Journal of Personality and Social Psychology described here.  Researchers conducted a series of studies on the effects of priming either action or inaction on whether subjects changed their minds on an issue.

The outcome of these studies are that people are more likely to change their minds when primed to inaction (e.g., wait, slow, calm) and more likely to maintain their current opinions when primed to action (e.g., go, energy, motivation).  The researchers surmised that being prepared to act brings existing opinions to the forefront of the mind, while being prepared to wait allows people to better scrutinize their ideas.

This lesson is also reflected in wisdom on creative problem-solving.  This is why the first rule of brainstorming is to suspend judgment (action)–when participants move toward action, they hinder their ability to think in new and different ways.

How can these lessons be used by mediators?  First, they indicate that you should not motivate participants to act.  Asking the parties, “What are the two of you going to do about this?” will draw out their existing positions.  Meanwhile, encouraging the parties to be calm, wait, listen, and take a break if necessary, will give them the breathing room to reconsider their thinking.  Though action is necessary for the mediation to be productive, disputants are often already motivated to not be sitting across the table from an adversary, and resolution is one option for satiating the natural tendency toward conflict-avoidance.

Thus, a winning mediation strategy involves keeping the participants present in the conflict while encouraging them to be patient and wait.

Announcing the Topics of the 2017 OMA Conference

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On May 19, 2017, the Ohio Mediation Association will hold its first multi-session Annual Conference.  Different speakers in the morning and afternoon will allow for multiple perspectives, more information, and a better experience for the audience.  Our morning presenter is Dr. Tanya Menon, a notable researcher on the psychology of negotiation, and our afternoon presenter is Jerry Weiss, a mediator who is an experienced practitioner and lecturer.

Dr. Tanya Menon

Dr. Menon’s presentation is entitled “Using Questions to Encourage Collaboration.”

Because well-crafted questions are a key tool for facilitative mediation, Dr. Menon will provide exercises and analysis on the many uses of questions in negotiations.

First, questions can exert influence without exerting power.  Dr. Menon will begin her presentation with a multimedia illustration on effective questioning that includes best uses of open-ended vs. close-ended questions and how to use questions to empower opponents in positive directions.  She will also discuss psychological principles of persuasion, choice as a double-edged sword, and the power of positive and negative language.

Next, questions can hurt or hinder our ability to bridge perspectives in order to solve problems.  In this segment, participants will engage in an interactive communications exercise that will demonstrate the conversational traps that arise from perspectives that are subtly, yet importantly, different.  This exercise will be a challenge for communications professionals, and it will also remind participants of the struggles that disputants experience at the mediation table.  Dr. Menon will again discuss pertinent theories in the psychology of conflict resolution.

Finally, Dr. Menon will present new ideas on using questions to generate creativity.  Concepts beyond standard brainstorming will be presented and explored.  These exercises will allow disputants to consider their problems in more flexible angles and allow mediators to guide the generation of more options for parties to consider.

Jerome Weiss

Jerry Weiss is a civil mediator who maintains an eye for the emotional component to negotiations and an openness to the transformative potential of mediation.  Though Jerry remains one of the longest full-time mediation practitioners in Ohio, he has remained active as a lecturer, serving as an adjunct law professor and delivering nearly 60 presentations on mediation across the US, Canada, and New Zealand.

Jerry’s presentation is entitled “Heart, Mind, and Soul: Insights from a Career of Reflective Mediation and Tools for Reinvigorating the Practice of Mediation.”

Jerry will be packing a career’s worth of practical insight into a three-hour presentation.  His lectures will involve a mix of practical tools, personal anecdotes, useful research, thoughts on the inner workings of mediation, and a variety of frameworks that Jerry has found to be useful in his career as a mediator.  Jerry sees many mediators taking a rote, overly-methodical approach to disputes.  He will present the reasons and methods for empowering the emotional core of mediation.

Jerry’s presentation will touch on a wide variety of topics, all aiming to improve your mediation practice.  His presentation will end with a lengthy armchair discussion and Q&A.  As a dedicated and reflective practitioner, an experienced teacher, and long-time mediation advocate, we are sure that Jerry will be able to provide participants with much insight.

To register for either or both of these sessions, visit our registration page.  We hope to see you on May 19th!

With a Great Lack of Power Comes Great Responsibility (to Participate in Mediation Skill-Building)

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Mediation continues to struggle as a profession. In fact, many doubt that we are a profession, confident that all of the skills required for mediation are already held by experienced attorneys or could be easily taught in a weekend-long training to volunteers. And, if mediation is already fully developed as a process and profession, then those skeptics are correct. Mediation is underused and most practicing mediators do not have extensive mediation training.

The reason for this is that mediation has been stinted in its development and still has room to grow. When mediation was first introduced in America, it faced fierce opposition as a new and different process. As a result, mediation adopted the ideal of impartiality–using the impartiality of judges as a familiar analog. Impartiality can also leave mediators fearful of using influence in the process.

Mediators can be more than a crossing guard, making sure that disputants do not speak over each other. Mediators can be more than the people who remind parties about the risk and expense of going to court.

This is not to say that we should carry the power of attorneys to predict courtroom outcomes or the power of judges to decide these outcomes. We have no power. But a lack of power allows for freedom.

Unlike judges and attorneys, mediators have the freedom to disagree with disputants. Attorneys must appease their clients, and judges must maintain an air of impartiality prior to making a decision. Mediators, on the other hand, have the freedom to speak discomforting truths. But, because disputants can discontinue mediation the moment they feel offended, we must speak these discomforting truths with supreme levels of skill and persuasion.

This is why we must continue to expand and develop our mediation skills. Though the basics of mediation can be taught to anyone in a relatively short amount of time, it takes a large toolbox and nuanced skill to weld a lack of power in a powerful way. However, in order to develop our skills and tools, we must learn from each other and look to new and different sources of knowledge.

This is why our bi-monthly meetings are shifting to skill-building round-table discussions. We are the professionals who are searching for better ways to mediate. Though the flood of clients did not coalesce when the public learned about and accepted the basic mediation process, we now have the legitimacy to try new and different things. So, our aspiration with these skill-building sessions is that each participant shares his or her favorite mediation tool, and everyone walks away with a full toolbox.

This is also why we looked to present different, practical perspectives at our upcoming Annual Conference. For the first time, we are presenting different speakers in the morning and afternoon and giving you the choice of attending one or both sessions. Our morning speaker is a Harvard and Stanford-educated academic who is highly prolific in the social science research of negotiation behaviors. Her work includes new ideas and frameworks that have the potential to deepen your mediation practice. Our afternoon speaker is an accomplished mediation practitioner who has remained reflective of his practice, delivering 60 conference presentations and teaching mediation as an adjunct law professor. He has build a full career of practical experience at the mediation table and will be sharing his favorite tools with you.

We hope to see you at our next skill-building meeting and at the Annual Conference on May 19th.

February 2017 Membership Meeting

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On February 3rd, 2017, OMA will hold its membership meeting at the Columbus Public Library in downtown Columbus from 12:00 to 1:15.  We will have two topics on the agenda:
1.  Cathy Geyer, Manager of the Ohio Supreme Court’s Dispute Resolution Section will speak on the upcoming efforts of the Court to modify rules for court-connected mediation, provide mediation services to government entities, and promote the practice of mediation in Ohio
2.  We are inviting experienced mediators to share and learn from each other in our first “Tricks of the Trade” roundtable.  Bring one idea and come away with many.  The topic this month will be tools used in caucusing.  For example, what activity do you give one party to do while you are meeting with the other party?
The address is 96 S Grant Ave, Columbus, OH 43215

Nominations Open for Better World Award

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We are now accepting nominations for the 2017 Better World Award.  The Better World Award seeks to recognize contributions to the field of mediation and conflict resolution.

The nomination form can be found here.  Please fill out this form and email it to omapresident@gmail.com or mail it to The Ohio Mediation Association, P.O. Box 473, Columbus, Ohio 43216.

When Business Relations Sour – Is There An Alternative to Litigation?

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“Discourage litigation.  Persuade your neighbors to compromise whenever they can.  Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.”

                                                Abraham Lincoln, July 1, 1850

When the parties are unable to resolve a dispute, their first thought is to litigate, prove that their position is correct and acquire the remedy provided by law.  They are focused on how they have been wronged and not on the pain associated with litigation.  As we know, litigation involves us, as in-house counsel, and our clients waking up many times in the middle of the night contemplating strategy, wondering if your trial attorney has considered this or that, thinking about money being spent to pursue your case, spending days traveling and preparing our clients for depositions, sometimes being ourselves subjected to depositions, and being frustrated about cancelled hearings and long unexpected delays.  You think that the other party must not be getting the message and really doesn’t understand your position.  You may spend a lot of time and money to prepare interrogatories and wait months for a response that is so vague or full of objections to the questions that you posed to make the response worthless.   You get to talk to your client about why they have to produce documents that they don’t want to produce.  Depositions are conducted in which the answers given are not helpful or the parties just answer that they don’t know.  In the end you get a decision that isn’t what you expected and get to explain to your client how that happened.  You just want way out of this mess.

When people think of alternatives to litigation, they generally first think of arbitration.  Rarely, but on occasion, the parties consider mediation.  For whatever reason, mediation is only beginning to be more popular in commercial matters.  This is not to suggest that arbitration and mediation are mutually exclusive.  Parties can agree to mediate a dispute and, if the mediation does not result in a settlement, then the dispute could be resolved through arbitration or litigation. 

Litigation tends to strain relationships.  Tactics taken by one party in litigation can offend the other party and lead to or increase distrust.  While parties can maybe live with that if they had a “one-and-done” contract, it doesn’t help in cementing a long –term relationship that would benefit all parties.   Often parties have ongoing relationships and need to continue those relationships long after the litigation is over.

Mediation can be particularly helpful when relationships need to be preserved.  Mediation is a process by which the parties and their counsel  (assuming that they  elect to have counsel) voluntarily meet with an independent third party (the mediator) who is trained to assist the parties in resolving their disputes.   Unlike litigation or arbitration, mediation does not require presenting testimony or  hiring expert witnesses.  Also unlike litigation or the other forms of alternative dispute resolution, in mediation the neutral party works with the parties to reach a mutually-agreed upon solution.  The mediator does not reach a decision.  The focus of a  mediation is not to decide which party has the best legal position.  It is to work with the parties to reach a mutually agreeable, and hopefully a win-win, resolution

As we know, there are no iron-clad cases.   Do you really want to risk a judge deciding this matter?  More than 90% of the cases eventually settle.  It is generally a question of how much the parties are willing to go through before they settle, not whether they will settle.

In litigation, the judge is restricted in his decision-making.  For example, if a party buys equipment from a second party and is unsatisfied, he may sue the seller.  The judge may or may not decide in the buyer’s favor.  If he does, he can order the seller to pay money to the buyer.  The amount that the judge orders the seller to pay may or may not be satisfactory to the buyer. 

Litigation has other inherent problems.  At times as in-house counsel, I have seen the client believe strongly in their position.  Outside counsel, eager to represent us, agrees.  Then, as discovery continues and the trial date is closer, outside counsel has more doubts.  No one wants to go back to the client and say that the case no longer looks like a sure winner.  Outside counsel may think that doing so jeopardizes their image.  A mediator, as a neutral party, can discuss the strengths and weaknesses of a party’s position without concern about repurcussions.

In litigation, information is filtered through the attorneys.  The client never hears the other party’s position directly from the other side.  In mediation each party, and not just the attorneys, have this opportunity.  The mediation may be the first and only time when the businessmen get to listen to the other party.  I, and most mediators, strongly prefer that at the mediation the client, and not counsel, present the facts related to the case.  Sometimes this gives an “ah ha” moment, where a party finally determines the real reason why there is litigation and then can form a basis for a resolution. 

The client also has the opportunity to vent – although while still being respectful. You will need to prepare your client that the other party may need to vent in order to move on and to deal with that occurring.

There may be a better alternative to anything that the judge could order.  At times an apology is part of the resolution.  Another part of the resolution could be having the seller offering  something that is deemed more valuable to the buyer than it is to the seller.  For example, there could be equipment that is in inventory and the seller no longer wants but that the buyer needs and the buyer would accept in lieu of the seller paying money to the buyer.  Both parties may be happier with this result.  Yet, the judge would not order such a remedy.  In mediation, the parties would explore various settlement options and could develop such a compromise– a “win- win” solution. 

Mediation focuses on what can be done to fulfill the interests of the parties, rather than who is legally correct.  Of course, this requires counsel to develop a different approach.  Just saying “ we think we have a great case”  doesn’t get the case settled.  Each party needs to analyze what is important to the other party and see how it can meet those interests in a manner acceptable to both parties.

Litigation is only one way to settle disputes.   Given the expense, uncertainty, and time involved in litigation, it is time to consider other alternatives.

 

David M. Cohen is a former in-house attorney for American Electric Power, where he is specialized in contract law, business law, mineral law and transportation law.  He is now providing mediation services as  Cohen Dispute Resolution Services, LLC (website www.davidcohenmediation.com).

© 2012 David M. Cohen

Social (Media) Proof: Marketing Mediation in Modern America

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Marketing might not carry the altruistic, save-the-world character of mediation, but marketing may be necessary to save the field of mediation.

Crisis in Conflict Resolution

When mediation was first introduced as an alternative to litigation, its proponents seemed to believe that widespread use of mediation would occur if the public knew about it (one survey in the early 1990s supported this assumption[1]). This view makes sense in light of the flaws of litigation and the ability of mediation to remedy these flaws. Litigation involves risk, expense, and incentives for each side to exaggerate and minimize in a way that hinders the truth-telling potential of courtroom procedure. Because attorneys understand this, they tend to negotiate with opposing counsel and sell settlements to clients who were not directly involved in reaching this resolution. With the psychological benefit of getting to yes shifted to attorneys, it’s no wonder that clients resent lawyers and are often dissatisfied with legal negotiations.[2]

However, despite the rational benefits of mediation and increased public awareness of the process, the demand for mediation has not materialized in the way its early adapters had predicted.[3] There are a number of cultural, psychological, and decision-science elements working against the widespread use of mediation.

First, American culture presents obstacles to mediation. Our collective psyche focuses on individualism over collectivism and the benefits of competition. As a projection of our approach to conflict, our justice system focuses on discerning an objective truth rather than accepting multiple, varied truths in a search for the greater good. And, finally, our culture tends to discredit negotiation, frowning on car salesmen in a way that cultures employing a bartering economy would not.

Next, important psychological elements work against the use of mediation. Though mediation presents a rational choice for disputants, people in crisis are not thinking rationally. Also, people can be conflict-avoidant, preferring outcomes handed down from authorities or accepting their lot through cognitive dissonance. Lastly, people discount ideas coming from adversaries, including offers, counteroffers, and even the suggestion of attending mediation (NOTE: research by Dr. Tanya Menon–one of our speakers for the 2017 OMA Conference–indicates that, while people discount ideas from adversaries, they value ideas from competitors).

Finally, the dynamics of how people with conflicting positions reach decisions also deters the frequent practice of mediation. Often, one disputant is satisfied with the status quo and will not approach the negotiation table voluntarily. Also, openness in a cooperative process exposes the participant to being taken advantage of by competitive adversaries (consider the competition-cooperation dynamics of the Prisoner’s Dilemma). Furthermore, if parties could mutually identify the problem and agree to approach mediation, they likely would be able to communicate effectively enough to negotiate without the assistance of a mediator.

The force of the above obstacles prevents the public from turning to mediation, even when they know that it’s an option. It is not enough to teach the public that mediation exists and offer it alongside litigation. So, how do we overcome these obstacles? I suggest that we look to marketing with effective use of information technology.

Marketing Mediation in Modern America

These days, people get most of their information online. People trust online reviews, satisfy their curiosity through search engines, and believe rumors they read on Facebook. Culture is an integrated pattern of knowledge, beliefs, and customs; and our culture is recorded, modified, and transmitted through the Internet. As a result, behaviors, culture, and decisions are best influenced through online presence. By “online presence” I am referring to your ability to be the subject of online testimonials and be at the top of online searches.

For example, lets say you’re an attorney looking for mediation clients. In addition to the people who are approaching you through personal references and traditional marketing, you want to be seen by potential clients Google-searching “low-cost litigation” or “how to avoid court” along with your practice area and geographical location. If you write an online article about how litigation is cheaper when people avoid court by using mediation and then link that article to your OMA profile or Google business listing, you are more likely to be seen by these potential clients.

While it is not enough that disputants know that mediation is an option, it is possible to use the Internet to convince them through targeting their decision-making process, social proof, and eventually changing our culture. First, though people are generally aware of mediation in a cool-headed state of mind, it is not where their mind goes when they are in crisis. Consider what disputants would Google search when panicking about the subject matter you mediate, then write a blog about that and link your contact information or Google business profile. And even when you have one disputant sold on the idea, you will need to convince the other of your credentials. So, next, use social proof by encouraging satisfied customers to rate and review you online. This means Facebook likes, Google business listing ratings, or reviews on websites that list members of your subject matter profession (e.g., ww.Avvo.com for attorneys). Eventually, people will not only have knowledge of mediation but also experience with it. Innovation research indicates that new ideas “tip” into widespread application when 15% of the population regularly applies them.[4]

The thought leaders who publicized the existence of mediation took the first important step toward a more collaborative society. However, it is now up to the practitioners to reach out to disputants to make mediation a process people turn to when facing crisis.

 

[1] Adr Awareness, 10 Alternatives to High Cost Litig. 148 (1992) (“A recent survey by the National Institute for Dispute Resolution of public attitudes toward ADR reveals that once people understand what dispute resolution processes are, they overwhelmingly choose ADR to settle a dispute, rather than going to trial.”)

[2] Craig A. Mcewen et. al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995) (“In the episodic, lawyer-run negotiation, clients who play a passive and consultative role may believe that their lawyers are doing little and resent the diminished participation in and control over their case. The direct engagement of parties and concentrated attention to negotiation that mediation provides can thus improve lawyer-client relationships as well as efficiency and communication.”)

[3] Robert Benjamin, Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict (1999) (available at http://www.mediate.com/articles/guerilla.cfm#)

[4] Geoffrey A. Moore, Crossing the Chasm (2014)

Zena Zumeta and Power in Mediation

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On November 11th, the Ohio Mediation Association held its first Fall half-day mediation training.  The event was a success, with many OMA members from the Toledo, Cleveland, and Akron areas, along with a few of our comrades from MANO (the Mediation Association of Northeast Ohio) in attendance.  Also present were a handful of diehard mediators from Columbus and Desiree Lyonette, who won the distance award by driving up from Wheeling, West Virginia.

Our speaker at this event was the nationally-renowned Zena Zumeta.  Zena delivered this training as an interactive skill-building session.  Participants described tough mediations and then acted them out, with Zena and other participants taking turns acting as the mediator.  This format allowed Zena to step back and describe the various approaches and mediation strategies.

My favorite tool that Zena described involved analyzing the source of each disputant’s power and then addressing them in a way that would generate movement.  This idea got me thinking.  An effective mediator is able to bring disputants to move from their initial positions.  When the dispute is not resolved by better informing the disputants of each other’s perspectives, getting people to change their mind involves an exercise of power.  Every dispute is a situation in which each disputant has various powers or potential powers over the other, and at least one party is dissatisfied with the existing power dynamics.  If only one party has all the power, then there is no dispute.  For example, if I’m jealous of my neighbor’s new Lexus, but I can’t afford one myself, then there is no dispute.  But if my neighbor runs over my foot with said Lexus, then my power is the ability to take my neighbor to court while her power is the ability to hire an attorney, pay my resulting medical bills, apologize, or let me drive the Lexus on my next date night.

So, in order to resolve the dispute, the parties mutually agree to relinquish or trade specific powers.  Asking the parties about their feelings about the situation or broad ideas for resolution will not necessarily touch on the power dynamics that are at the heart of the matter.  Mediators must identify the sources of power and get the parties thinking about how they can be leveraged.  I like what Zena did in the role play to make this happen–she got me talking about something of which I had power/control, asked me a “what if” question to explore how I would use this power based on the potential actions of the other side, and then kept asking me for more options of my own potential actions.  Once I had described a variety of ways that I could exercise power over the other disputant, she asked me which one I preferred, which options I could live with as a backup, and then got me thinking about how to offer one option while indicating a willingness to use an option that the other side would prefer less.

While mediators who emphasize the need for impartiality may be uncomfortable with addressing power dynamics between parties, it is my personal opinion that ignoring power dynamics only enables them.  The problems with power imbalance in mediation is that one disputant gets a better deal based on considerations that are not the appropriate basis of a decision between conflicting perspectives (e.g., who can make the other side feel uncomfortable, intimidated, or guilty).  If a mediator ignores these in the interests of impartiality, then the mediator is merely going back and forth, asking the parties to respond to each other, and possibly allowing one party to manipulate the other.  The better approach is to help the parties explore their relative strengths and weaknesses, ask them for a variety of options for leveraging these issues, and then facilitate a negotiation in which both sides feel acknowledged and respected.

Overall, it was a nice training.  The various mediators who were present had an opportunity to apply their preferred approach and compare it to the approaches espoused by other mediators.  It was also good to get OMA out of central Ohio and reach out to our members and other mediators up north.  If anyone is interested in an OMA-sponsored mediation training elsewhere in the state, mention it in the comments under this post or email omapresident@gmail.com.

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Events & Updates

December Meeting: Robintek Discusses Marketing your Mediation Practice

On December 2nd, 2016, we will meet at the MCL Cafeteria in Westerville for a presentation from Robintek, the online marketing team that revamped our website.  Bring your laptop for personal instruction on how to make best use of the new www.mediateohio.org and how to increase your own online presence.