Mardi July 14th, 2014

I’m a shameless idealist.  And I put it into practice, yielding some pretty satisfying results.  Thus, I remain shamelessly idealistic.  I am also greedy, taking from the many styles and tool kits that accomplished mediators and other professionals have discovered, uncovered and invented… as long as they work and are respectful.  If it serves the client, I will remain shamelessly greedy.

I venture to say that in a world where it may be difficult to get “good, fast and cheap”, it is in my experience completely possible – and preferable for short and long-term success –  to achieve transformation, efficiency AND settlement for mediation clients… whether in family, workplace, condo or civil disputes.  A client shouldn’t have to ‘settle’ for either a tidy settlement or expressing emotions or improving a relationship, or think that a transformational approach means a prolonged or expensive prospect.

First, I believe that empowerment & transformation are often natural products of a thoughtfully executed Interest-based mediation, the classic model of our profession. It shines at wisely and efficiently getting to settlement by getting behind the positions that people take in litigation, or in life, and discovering the true interests of parties in dispute… the very human needs, wants, fears and concerns, and, I add, aspirations that drive us as humans, but that we rarely give voice to, for many reasons.

In infusing a transformational approach, I make the distinction here between adopting a model outright, and adopting the philosophy and tools of that model.  I use the tools that work for the job at hand, within the classic Interest-based Mediation model.  A comfort with transformational tools mean dealing with emotions and relationship issues as they come up, realizing that, as stated up front in the seminal negotiation reader “Getting to Yes” (Fisher,Ury,Patton p29-31), unless and until you explicitly work through any emotional barriers, settlement may just not be possible.

Emotional impasse can be the most fatal to a negotiation, and therein lies the skill of the transformative-leaning mediator.  Emotions and chronic relationship issues are not a problem to be avoided or suppressed in a negotiation, but often the very key to understanding, empathy, more meaningful conversation, and eventual settlement. For instance, anger is a position … behind which are unfulfilled needs and fears to be explored. If we ignore such emotion, we run the risk of dealing with incomplete information and insight. So rather than wait until impasse to pull out transformational tools, I explore emotions and relationship issues up front. This is not pie-in-the-sky idealism. It is pragmatism… my third sin.  I am extremely pragmatic.  Transformational work for me, is not only preferable, it’s often pivotal to engaging in a successful mediation.

But now … efficient?

In my experience, using transformative techniques off the top cuts more directly to the level of interests and can quickly and respectfully break through barriers.  The results may surprise even the Mediator, and, it actually saves time.

Here is an example in a Court-based family mediation which the referring Judge deemed as “unsettleable”…   We were there to establish a parenting plan where there had been none for over a year. During the father’s private intake, he called the mother a bad parent, and went on to sit in  mediation with his side to her and his back to the mediators. Seeing his unwillingness to engage, I could have deemed him as ‘a problem’, and/or turned the mediation into a shuttle.  Instead, I said to both parents off the top: “We’ve come here to talk about what’s best for your children, and I would love to know who they are so I can help you do this, so please paint me a picture of them … their passions and aspirations, characteristics and challenges, and what YOU each love to do with them…”  And I didn’t ask either of them to go first. I posed the question, smiled and then purposely looked down and organized my paper, so they couldn’t get affixed on me.

A moment of awkwardness. Navigating this flow of information was their first ‘negotiation’. They hesitated, they spoke, sometimes they interrupted, they listened and they deferred … and then … magic happened. They started recognizing things the other said as true … they started being surprised at what the other knew or did with the children that they did or didn’t share … they nodded and smiled, affirmed each other and learned from each other, and they got nicely confused, suddenly unsure of what they thought they knew about the other.  Throughout the exercise I nodded and raised my head and smiled, but mostly I left it to their higher, parenting selves, united around what we all know are the most important in their lives…their children. By the time the picture was painted, the father’s chair was facing the table and the mother.  Their purpose was now clear. They went on to negotiate with each other, and not me… what we all hope for as mediators. And we went on to craft the first stage of a parenting plan that reflected the best parts of all four people involved, in under 2 hours. Settlement achieved – efficiently – and with significant transformation in the parties’ perceptions and ability to work together.

A transformational outlook – including client empowerment and recognition of each other – can indeed be highly efficient and economical. By instantly building new skill and creating more effective parties, by increasing empathy and understanding and closing the gap between disputing parties, we are investing up front for a quick return.  More skilled clients + reduced distance between them = a more efficient process AND increased likelihood of settlement.

Transformation-Efficiency-Settlement.  “Yes, yes and yes… you can get all three”, I say, selfishly, greedily and very, very pragmatically.

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Please add your perspectives below to this and future conversations on the nature of communication and relationship, mediation and problem-solving, values, perspectives and issues of concern to families, family businesses, communities, businesses, profit and non, and the workplace.

Next Blog Post:  Best Practices…not Groundrules

Tags: anger is a position, family mediation, getting behind positions, Getting to Yes, interest-based mediation, mediation, transformative mediation

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