This message, which appeared in my Facebook feed a few weeks ago, captures my sentiments well:
Happy Holidays!
Now that December is here, I find myself musing about what the holidays mean to different people. This season is one that is supposed to be filled with goodwill, community, and joy - and it most often is. But I was looking for holiday cards the other day, and realized that it is also a season that seems to have become fraught with concern about political correctness. This message, which appeared in my Facebook feed a few weeks ago, captures my sentiments well: We live in an interconnected world, in which we are exposed to different cultures and communities on an almost daily basis. Rather than taking offense where none is intended, I encourage everyone to take the opportunity this holiday season to seek out, learn from, and perhaps even arrive at a new level of appreciation and understanding of a perspective different than your own. Happy Holidays! Episode #424 of the radio program "Snap Judgment" features Daryl Davis, a Black man who joins a country band, finds himself playing the piano in an all-white bar, and befriends members of the Ku Klux Klan. (You can listen to the story, "The Silver Dollar Lounge", here.) So he and I would sit down and listen to one another. Over a period of time, that cement that he talked about that held his ideas together began to get cracks in it and then it began to crumble and then it fell apart. And then a few years ago Roger Kelly quit the Ku Klux Klan. [...] While this is an extraordinarily courageous example of creating dialogue and mutual understanding - and one that involved a high risk of physical harm - there are small things we can do every day towards the same end. A couple of years ago, two women and a young boy knocked on my door. I don't normally open the door to proselytizers, but on this occasion I did. Not surprisingly, one of the women promptly asked me whether she could read me a passage from the Bible. Instead of making the usual awkward excuses in order to be able to close the door, I told her that I am an Atheist, but that she was welcome to read me a Bible passage if in exchange she would allow me to offer her an excerpt from Richard Dawkins' "The God Delusion", which I was reading at the time. To put this in context, I had had a somewhat heated discussion with my spouse about our different perspectives on religion a few days prior to this interaction. We all nurture closely held beliefs on a variety of issues, regardless of their origins. But however irrational we believe someone else's beliefs to be, the only way to actively co-exist is to engage in respectful dialogue. Sometimes, we may convince the other person, as Daryl Davis did; on other occasions, we may have to agree to disagree. Either way, we create the opportunity to arrive at a deeper understanding of who the other person is and how they approach the issue. In the end, neither the young woman at my door nor I ended up reading to each other. We did, however, spend a few minutes talking about our beliefs and why we held them - and parted with genuine pleasure at having engaged in the conversation. If you have an adversary, an opponent with an opposing point of view, give that person a platform, regardless of how extreme it may be. And believe me I've heard some things so extreme at these rallies it'll cut you to the bone. If you agree with them, great - no problem. If you don't agree with them, that's fine, too. You challenge them, but you don't challenge them rudely or violently. You do it politely and intelligently, and when you do things that way, chances are they will reciprocate and give you a platform. This video clip, while not new, still caught my attention when I saw it again recently. In negotiations - and especially where parties are already in conflict - how we say something can be even more important than what we say. Mediation has a high success rate in part because a neutral and objective third party who has no stake in the outcome of a dispute has the ability to reframe the message, defusing language that may otherwise be perceived as inconsequential or antagonistic and presenting it in such a way that the other side is willing and able to hear it. Instead of just another blog post, today I wanted to share a short video clip. This an animated excerpt from Brené Brown's excellent and humorous TED Talk on "The Power of Vulnerability". This video makes a great point about the difference between sympathy and empathy, the courage it can take to demonstrate empathy, and the impact that empathy can have. How is this relevant to dispute resolution and conflict management? Treating vulnerability as a strength instead of a weakness, and showing empathy towards the person with whom we are in conflict can not only lead to solutions, but can also strengthen the underlying relationship. Last Friday, the Washington Mediation Association (WMA) hosted its first annual Fall “Unconference”. "What is an unconference?" you may ask. That was my question as well, and I – like several other attendees to whom I spoke – was not quite sure whether this would be a productive use of my time. Instead of following a pre-determined agenda, the idea is that attendees propose sessions at the beginning of the day that they are willing to lead and/or facilitate. Several sessions are scheduled simultaneously, and everyone attends those sessions that interest him or her. The mood in the room quickly shifted from apprehension to anticipation as sessions were proposed and 30+ relative strangers collaborated on creating the day’s agenda. One of the sessions I chose to attend was led by Carly Thornburg of the Thurston County Dispute Resolution Center, and focused on collaborative games. Traditionally, the vast majority of negotiations are competitive; more often than not, we think of conflict as a zero-sum game, where any incremental “win” on one side is matched by a “loss” on the other, and concessions may be perceived as weakness. But in some circumstances, it may be possible to reframe this interaction. A simple but powerful example: arm wrestling. Participants pair up, place their arms in a standard arm wrestling position, and are instructed that each player’s goal is to maximize his or her points. A point is scored whenever the back of the other person’s hand touches the table. If the game is played competitively, neither player will do very well. However, if the two players collaborate and help each other, they can each score many more points by moving their arms without resistance. Of course, it is not always this easy to collaborate in real-life situations. Collaboration requires being able to see your negotiating partner’s point of view, building mutual understanding, offering concessions, and trusting that your negotiating partner will reciprocate, rather than taking advantage of your concession. Collaboration does not happen quickly or automatically; it requires work and a genuine willingness to find common ground. When it does happen, however, it can be game-changer. We all make assumptions about the world we live in. Without assumptions, we would be unable to function effectively; we would spend far too much time making even the smallest decisions. But sometimes, our assumptions can lead us astray – or lead us into conflict. You may have heard of the “Ladder of Inference”, a concept first proposed by organizational psychologist Chris Argyris and used by Peter Senge in The Fifth Discipline: The Art and Practice of the Learning Organization. Here is how it works:
This can result in a destructive loop. Our beliefs and prior experiences greatly influence what facts we select, and often lead us to ignore other facts and data entirely. We then “jump to conclusions”, by missing important facts and substituting belief-driven conclusions for reasoning. For example, if I am having dinner with a friend and she pulls out her phone, I may 1. focus on that action, 2. believe that she is bored with our conversation, and 3. assume that she is checking her facebook updates. As a result, I may 4. conclude that she does not value our friendship, 5. believe that I am wasting my time with her, and 6. change my own demeanor for the worse. In reality, my friend may have been thoroughly enjoying our conversation, and may have been letting her partner know that she will be home later than expected because she does not want to cut the evening short… So step off that ladder and take a moment to examine the underlying facts more fully. You may discover very different meanings – and a much broader set of options – than those you saw once you started climbing. Over the last few decades the field of alternative dispute resolution has grown tremendously. The recognition that not all cases are well suited for the adversarial process and that there are multiple paths to justice is increasingly shared by attorneys, judges, and the public. In 2011, the ABA declared the third week of October, “ABA Mediation Week,” in part building on the efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR) which have traditionally celebrated conflict resolution during the month of October. The ABA Mediation Week initiative is a celebration of the strides we have made in institutionalizing mediation as one of several appropriate dispute resolution processes. ABA Mediation Week will be held during the week of October 12-18, 2014 this year. The theme for this year’s ABA Mediation Week is “Stories Mediators Tell--From Rookie to Veteran, Exploring the Spectrum of Mediation.” As lawyers and mediators, we understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better, and by finding ways to get their important interests met while staying true to their values and belief systems. (The above is an excerpt from the ABA website. Find the full entry, including events, press releases, and resources here.) Yesterday's topic at the King County Bar Association's ADR Section meeting was "How Do Experienced Mediators Stay Engaged and Improve Their Skills?" - a panel presentation (including yours truly) and roundtable discussion. We created a survey prior to the meeting to solicit input, and are excited at the number and variety of responses to date. If you are interested, please participate in the survey at https://www.surveymonkey.com/s/R6NB7ZJ. Results will be posted soon, and we hope to find ways to continue what we thought was a very productive conversation. Philip Mediation now offers "pay as you go" mediations to parties not represented by attorneys. This is a great option for those who may not be familiar with mediation as a dispute resolution tool, and want to learn more about it before committing to a full mediation session. Parties attend a free 30-minute joint consultation, during which the mediation process is explained and parties are given an opportunity to ask questions. In the event that the parties choose to proceed with mediation to attempt to resolve their dispute, the mediation session occurs immediately following the consultation, and parties are charged only for time actually used. "Most people do not listen with the intent to understand; they listen with the intent to reply." (Stephen R. Covey, The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change.) The concept underlying this quote has been known to mediators for a long time. One of my primary goals as a dispute resolution professional is always to listen with the intent to understand. This does not mean that I necessarily agree with everything I hear; understanding and agreement, after all, are often two very different things. But only by understanding what someone is saying - and why they are saying it - can I assist them in moving towards a resolution that meets their interests, satisfies their needs, and is ultimately acceptable to everyone involved. Several years ago, I handled the defense of an employment discrimination case for a large corporate client. The client had been happy with my work on previous cases, and transferred the case to me just a couple of months before trial, with a large amount of work still remaining to be done. The attorney who had handled the case before me was glad to get it off his desk, and I soon found out why. The plaintiffs' demands were outrageous (tens of millions of dollars), and the case was postponed several times as they hired one lawyer after another to represent them. Despite multiple attempts to resolve the case in mediation, the plaintiffs seemed wholly unwilling to consider an out-of-court settlement. I successfully petitioned the court to dismiss the majority of the plaintiffs' claims, and the remainder of the case finally went to trial almost two years later, after almost weekly air travel to attend hearings, depositions, meetings, and mediation sessions. After a two-week trial, once all the evidence was in and the plaintiffs had compared my client, my co-counsel and me to dictators and terrorists from the witness stand, the jury returned a defense verdict. The plaintiffs subsequently appealed the verdict, and the Court of Appeals affirmed the decision in my client's favor. As a trial lawyer, the outcome was a resounding success. As a mediator, I look back at it and wonder whether there was a way in which the case could have been resolved before trial, thereby saving both my client and the plaintiffs significant amounts of time, money, and emotional energy. I firmly believe that all cases can benefit from mediation, moving the parties closer together by providing each party some perspective regarding their own needs, the needs of the other party, and the potential realities of continued litigation. Sometimes, however, a party is so emotionally invested in a case - or so indignant at the opposing party's demands or offers - that they are unable or unwilling to see any validity in the other side’s arguments, and cannot negotiate in good faith. This was one such case. The plaintiffs’ needs boiled down to “vindication”, which they were convinced they could achieve only through their day in court. They got their day in court, but it was quite the opposite of the vindication that they had hoped for. This particular case may indeed not have been amendable to a mediated resolution. However, it will always serve to remind me that emotional and other non-monetary needs can be as important to the parties as financial ones, and can provide very real barriers to a mediated settlement. Where such needs exist, it is critical for the attorneys and the mediator to work together to uncover and address them if a mediation is to have any chance of succeeding. I wrote a blog entry for the Washington State Bar Association's ADR section, which was posted earlier today: In the Fall 2013 issue of Conflict Resolution Quarterly, authors Susan S. Raines, Sunil Kumar Pokhrel and Jean Poitras examine challenges faced by professional mediators. (See “Mediation as a Profession: Challenges That Professional Mediators Face”.) Not unexpectedly, the researchers found that the primary challenges include getting and keeping clients, educating the parties and the public about mediation, and finding professional development opportunities. Drawing on their research, the authors relate strategies used by mediators to overcome those challenges. [...] As many of you know, I am on the Board of Directors of Cares of Washington, a local non-profit organization whose mission it is to provide tailored opportunities for people with disabilities and low incomes to become economically self-sufficient. Thank you to the Cares staff for the mention in our recent newsletter (http://conta.cc/1oshkw3) of my recently completed two-year term as Board President: Cares of Washington would like to thank Sasha Philip for her term as Board Chair from 2012 through 2014. What's in a name? Well, possibly quite a lot, especially when dealing with conflict and its inherent risk of miscommunication. One of my recent mediations boiled down to several issues, one of which was a warranty. One party (D) had requested a warranty, and was not provided with one. As a result, (D) felt that they had been disrespected and ignored. The other party (P) believed that they had done everything necessary and more, especially as the requested warranty was easily available on their website. As it turns out, the parties were using the same name for two very different things. (P) understood the word "warranty" to be a guarantee that their product was free from major defects and could be returned if defective. The "warranty" (D) was requesting was an assurance that customer support would continue regardless of which representative they contacted for that support. When involved in conflict, it is important to remember that we may not be using the same dictionary as the person on the other side of the table. While the meaning of a word or phrase may be obvious to one, it may not be to the other. This is especially true with "terms of art", words and phrases that have specific meanings in a trade or profession, but are used differently in everyday language. So take a step back and make sure that you are working with the same vocabulary. Simplify that vocabulary if meanings are unclear, and do not hesitate to ask for clarification. This is not a sign of weakness; it is a sign that you are attempting to resolve the conflict in good faith. And sometimes clearer communication is all it takes to pave the way to resolution. I recently conducted a mediation whose success I credit in large part to the attorneys and parties involved. The case, like many others, began with a motor vehicle accident, in which the defendant had conceded liability, but disputed the nature of the injuries and the extent of necessary and related medical treatment. Although there had been no substantive pre-mediation settlement negotiations, the attorneys involved exhibited a cooperative attitude towards resolving the case. Somewhat unusually, they had agreed to attempt early mediation, without the benefit of the parties' depositions, medical experts, or much other discovery, in order to save their clients the time and cost of litigation. I spoke to each attorney in preparation for the mediation, and each agreed to share their mediation brief with the other side. Indeed, the attorneys had a lengthy telephone conversation with each other prior to mediation, presumably in order to determine common ground as well as points on which their assessments differed. Both attorneys came to the mediation knowing that they would have to proceed with discovery in the event that mediation did not resolve the case. Both appeared to believe that there was a slim chance of settlement, especially given an offer prior to mediation that was substantially lower than the plaintiff's alleged medical specials. But both attorneys were clearly prepared, and had prepared their clients as well. Both were willing to work hard, take the other side's arguments into account in their negotiations, and spend a little additional time when they believed that it would result in a mediated agreement. Neither tried to hide facts or arguments, or to use mediation as a discovery tool. Neither was afraid to let their client or client's representative speak to me, and neither was opposed to meeting the other side in a brief joint session if I suggested that this could potentially move negotiations forward. (We did not conduct a joint session, but the two sides did meet each other of their own accord after the final paperwork had been signed.) This was not a case involving the "Settlement Drift" mentioned in my prior blog post, but rather the opposite. Attorneys are not always prepared, cooperative, or willing to seriously consider the opposing party's point of view. When they are, however, even difficult cases can result in mediated settlement agreements, and clients win by being able to put the lawsuit behind them. Thanks to fellow mediator Adrienne Keith, who sent me a congratulatory e-mail a few days ago, I discovered that the 2014 issue of Washington's Super Lawyers Magazine has named me as the sole "Rising Star" in the practice area of Alternative Dispute Resolution. I am honored and flattered, and grateful to whoever nominated me, both for 2014 and for the previous years (2006, 2008, 2012 and 2013) in which I made it onto the list. A recent article on the Kluwer Mediation Blog caught my eye. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was seen as the final play in the drama. The moment the curtain would close and the audience would applaud. The mediation session represented the end of the show and a chance to step back and look away from the play. All of the preparation that went into the production was effectively utilized to present the play, and the actors were on their best behavior. If the case had a chance to settle, it would. There were no excuses for parties not being prepared, authority levels not available, or decision makers hiding behind layers of bureaucracy. Cases resolved because the process was designed for closure. California mediator Jeffrey Krivis argues that, too often, mediation has become a box to be checked in the litigation process, rather than an opportunity for attorneys to discuss the substantive merits of the case. Mediators are reduced to conducting shuttle diplomacy between hostile adversaries, while attorneys avoid direct dialogue and sometimes even use mediation as a discovery tool, with the expectation that the case can still be settled anytime before trial. Read the full article "The Settlement Drift" on the Kluwer Mediation Blog website. In following up on my post of March 21, 2014, I have now created a Google Group entitled "Mediation Peer Consult Group", and would like to invite fellow mediators and ADR professionals to join what I hope will become both an online community and the formation of additional small local groups. If you are interested in joining this group, please add a comment below or send an e-mail to me at Sasha@PhilipMediation.com with the subject line "Mediation Peer Consult Group". The welcome message you will see upon joining will be the following: Welcome to the Mediation Peer Consult Group! “Peer consultation” is a term used to refer to a process of peers consulting with peers in a non-hierarchical fashion. Although this does not preclude the possibility of varying levels of experience and expertise, the process relies on the acceptance that this is a collaborative group conferring with each other. This involves the practice of fully qualified and often highly experienced practitioners working collaboratively with peers to access and share information, discuss opinions, receive support, monitor best practice and obtain rigorous evaluation of their own professional activities within a professional context. (The Australian Psychological Society Ltd., APS Peer Consultation Network Guidelines.) With this in mind, please feel free to reach out to members to share experiences, request input or feedback, and have general conversations about the practice of ADR. Please also feel free to invite other qualified mediators and other ADR professionals to join this group and contribute to its conversations. I come from a civil defense litigation background, in which mediations almost always consist of caucus-only "shuttle diplomacy". I completed my practicum with a Dispute Resolution Center that uses the 8-step facilitative model, in which joint sessions are the default and caucuses occur only when the mediator believes that they are necessary. During the recent Annual Northwest Dispute Resolution Conference, I started talking to colleagues about what appears to be a dichotomy in our field: To a litigator, a joint-session approach is anathema, while to a community mediator, shuttle diplomacy is virtually unthinkable. But all trained mediators use much the same toolbox to allow them to facilitate a conversation between the parties. Why, then, is there not more of a continuum between the two approaches? Why can we not combine them to craft a mediation session that is tailored to the needs of the parties? Today, I attended the Seattle Federal Executive Board's 13th Annual Training Day, during which Ann McBroom, Director of the King County Inter-Local Conflict Resolution Group (ILCRG) addressed this very issue from a slightly different perspective. The ICLRG has begun to identify cases that may benefit from "pre-mediation caucus", i.e., separate in-person meetings with each party. In those meetings, the mediator allows each party to express their narrative, then works with that narrative to name the issues, focus the party's goals for mediation, and provide coaching on how to articulate questions and statements to the other party that will allow them to achieve those goals. Based on the pre-mediation caucus, the mediator makes a decision as to whether to bring the parties together in a joint session or conduct a shuttle mediation. This approach requires what may appear at first glance to be a greater investment of time by the mediator. However, anecdotal evidence to date indicates that it may actually cut down on the time the parties require to resolve their conflict once the pre-mediation caucus has been completed. While it may not be useful in all types of cases, I believe that this approach has enormous potential to bridge the gap and/or eliminate the dichotomy I mentioned above. More importantly, it creates a framework within which to structure a mediation so that it gives clients the best possible opportunity to resolve their disputes. I have been "networking" quite a bit lately - going to conferences and events, and meeting or reconnecting with other ADR professionals. A topic that has come up repeatedly is that of community, and more specifically, peer support. Many of us have an established community or network of peers in our professions of origin, whether that be law, social work, education, counseling, or any of a myriad of other fields. But as mediators in private practice, we often find ourselves isolated. The Dispute Resolution Centers with whom many of us volunteer offer debriefing and support for the mediations we conduct with them. But what about the mediations that we conduct on our own? When we want to celebrate a successful mediation, or when we need to talk about that nagging concern that we could have done something differently, tried a different strategy, or a used a different tool, whom do we turn to? If we have friends who also happen to be mediators, or if there happens to be an ADR networking event coming up, the answer is relatively easy. But there is no structured forum in which to debrief, talk about what worked and what did not, be creative, or brainstorm ideas. Enter the "peer consultation group". This is not an established group, but rather the germ of an idea that has formed in conversations with a number of fellow mediators over the last year or so. As one of them pointed out, therapists have peer consult groups - why shouldn't mediators create something similar? Imagine my surprise when I brought up the idea at a recent networking event and received an immediate and enthusiastic response, both at the event itself and afterwards. I have to admit that I cannot claim this idea solely as my own. However, I have reached out to organize a small group that is going to give this a try, and will have its first meeting soon. If it works, and if we are able to generate ideas that may be scalable to a larger group or an online forum, I hope that this is something that can be of benefit to many more mediators in the near future. In the meantime, please feel free to contact me if you have any questions or ideas, or - if you are an ADR professional in the greater Seattle area - this is something that may be of interest to you. I am a mediator, arbitrator and attorney, and have been practicing civil litigation since 2001. My undergraduate degrees are in psychology (because I was interested in the subject) and political science (because I thought it would be useful for law school). As it turns out, psychology is far more relevant to the practice of law than political science... Although I am no longer a full-time lawyer, I remain fascinated by human psychology, which fundamentally impacts how we perceive information and make decisions based on those perceptions. As a mediator, it is crucial to attempt to understand the perceptions and experiences that form the basis of any conflict, because they influence what the parties may need and want in order to resolve their dispute, as well as how positions and interests are communicated to others. As such, I anticipate that this blog will incorporate snippets from conferences and events I attend, interesting tidbits from articles and books about psychology and neuroscience, and anything else that I think may pique my readers' interest as being relevant to my ADR practice. I invite comments, questions, and constructive criticism, as well as suggestions for future blog posts. Thank you for being one of my first readers! |
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