Kwame Christian, Esq. of the American Negotiation Institute is a thought leader in the field of negotiation and recently invited me to be a guest on his podcast Negotiate Anything. It was tremendous fun, and I really enjoyed our discussion. Take a listen if you are interested in the power of silence, body language, and segmentation!
I recently had the opportunity to speak with Thomas Kilgallen and the dynamite team of professionals he has put together as part of My Business Exit Team, mybusinessexitteam.com. If you are wondering about how you might use mediation in the context of a business divorce, here's a link to the presentation:www.youtube.com/watch?v=Ad19V7wM4SI
Courts and offices may be closed, but parties continue to have disputes. While many mediators may not be able to resolve those disputes in person, most of us have pivoted to offering to mediate online. Many practitioners have questions about how one can mediate online, and whether it is as effective as in person mediation. Here are a few issues for you to consider when deciding if you want to mediate online or whether you want to wait until you are able to mediate in person.
What are the options for remote or online mediation?
Remote or online mediation can be text based (using traditional email or text messages or utilizing a more sophisticated dispute resolution platform like Crek or Modria), voice based (telephone or voice over internet), or video based (Zoom is most mediators’ platform of choice because it is encrypted, but even FaceTime can work). Mediations can take place in single sessions or over a period of days or even weeks and can utilize more than one of the above forms of communication.
How do I choose the best form of online mediation for my needs?
The first step is to assess your or your client’s access to and comfort level with technology. If you or your client doesn’t have access to a good WiFi connection in a PRIVATE setting (a room in a home or office where you or your client can be by yourself), then Zoom or other video mediation probably isn’t a good choice. Some people are really comfortable utilizing all modalities of technology, while technology causes a great deal of anxiety for others. If technology truly makes you or your client uncomfortable, text-based mediation through email or text message or voice- based mediation via conference call may be best for your needs. If you or your client have never heard of Zoom but are willing to give it a try, do a test run or two to ensure that you or your client understand how Zoom works and would be comfortable using it as a mediation tool. Mariani Mediation Services LLC does trial Zoom sessions as part of all video-based mediations.
The second step is to think about how you or your client best make decisions. Do you or your client process information quickly and make choices rapidly? If so, video or phone communications likely will work best. A single session mediation might also work well. However, if you or your client likes to take time in making decisions and in fact exhibits decision paralysis when pressed to make quick choices, a text-based mediation or one occurring over several days or even weeks may work better. Use your mediator as a resource to help determine what mediation format would work best in your particular circumstances.
How does a video (Zoom) mediation work?
It’s pretty simple. Your mediator will send you a link to join a Zoom meeting. If you are on a laptop or a desktop, you simply need to click on that link, select “Join by computer”, and you are in! Downloading the desktop Zoom app on from www.zoom.us does make the user experience a little better, but it is not necessary if you do not want to go through the hassle of creating an account. If you plan to attend via smartphone or tablet, however, you will need to download the app. Zoom has terrific tutorials on it support page (https://support.zoom.us/hc/en.us). We recommend using a laptop or desktop whenever possible because you have easier access to more features and a larger video screen, which is helpful if your mediation is going to last for more than an hour or so, reserving your phone or tablet as a backup plan.
Once you click the link, you will be placed into a waiting room. Your mediator will admit everyone to the meeting when all necessary participants have joined the waiting room. The mediator can then conduct joint sessions in the main room and can use breakout rooms for caucuses. Zoom allows the mediator to share screens and even has a whiteboard feature should the parties wish to use those functions. Basically, you can do just about everything you could do in a conference room on a Zoom call.
The mediator will also ask participants to provide a cell phone number so that the mediator can text them privately if needed; the mediator likewise will provide the participant with their number for texting. One such example is when wishes to rejoin a breakout room but doesn’t want to interrupt private discussions. Texts also are useful if one or more of the parties loses connection to the Zoom meeting or for troubleshooting Zoom settings.
What are your top five tips to make Zoom mediations better?
First, understand where the audio and video controls are located. On a desktop, they are located in the bottom left corner of your Zoom screen. Click on the carrots to show the available options. You may need to try several of the audio and video options to see which are the correct settings for your computer.
Second, face the light rather than have any lighting behind you. If you have lighting behind you, the other participants may not be able to see you well.
Third, keep it quiet! Make sure you are in a quiet, private location with ringers and other alerts turned off. We recommend using the buzzer settings instead so that you can receive alerts without distracting noises. Also, please make sure you do not speak over or at the same time as others on the Zoom – it’s really difficult to hear when multiple people speak on Zoom. Please also tell others in your home or work space not to disturb you.
Fourth, if you plan to share your screen at any time, please close all applications or screens on your computer apart from the ones that you want to share to minimize the chance that you will show other participants information that you do not wish them to see.
Finally, have a backup plan in case there are technological glitches. This may be rejoining the meeting on your smartphone instead of on a laptop, participating by phone rather than using video, or agreeing to adjourn to a different time.
When I was a young associate at a law firm, one of my mentors encouraged me to start looking for opportunities to teach at continuing legal education seminars. When I asked him whether he thought I had the requisite expertise to instruct others on the law, he wisely told me that one of the best ways to become truly expert in something is to prepare to teach it to others.
As I began to prepare the syllabus for a course on mediation that I am teaching in the spring at a local law school, I remembered my colleague’s advice and realized again how accurate it is as I looked at the list of materials I want to reread or examine before I enter the classroom in January. The resources available today are staggering. My latest Amazon search for “mediation” yielded over 17,000 results, though Amazon also has a problem separating mediation from meditation. (For more on that, see my July 2016 blog post, Mediation? Do You Mean Meditation?).
After sifting through the list of materials to which I want to expose my students, I realized that perhaps I needed to get away from theory and head back into the realm of the practical. After all, what do second and third year law students need to learn about mediation, and how can they learn it most effectively? How will they be using mediation in their practices? How can I help them transfer knowledge from the classroom to the conference room? How can I assist them in seeing the benefits that dispute resolution techniques can bring to any situation, whether emergent or full-blown?
I have settled on three primary questions I would like my students to be able to answer at the end of the semester. First, what does mediation look like? Second, how do I prepare for mediation? Finally, how do I help the parties in dispute get the most of the mediation experience. If you have participated in more than one mediation, you know that the answers to these questions vary from situation to situation, but that common themes and techniques help to answer each of these questions in almost every situation.
If you had to answer each of those questions, what would you say? If you were asked what themes and techniques have been common to your mediations, what would be your response? I’d love to hear from you as I continue to prepare for the coming semester.
A few weeks ago, I attended MCLE’s 8th Annual ADR and the Law Conference. Daniel Shapiro of Harvard’s Program on Negotiation delivered the keynote address, and shared with us some of the research and concepts underlying his new book, Negotiating the Nonnegotiable. After walking us through several theories of dispute resolution, he moved on to describe his latest theory regarding what prohibits people from reaching agreement.
In sum, and with apologies to Dr. Shapiro for oversimplifying his work, he theorizes that any time a dispute threatens one’s identity, the situation becomes highly charged and almost impossible to resolve without taking several steps back to unpack the emotions and identity issues surrounding the dispute. While I have yet to finish his book, the concepts he discussed with us made a great deal of sense and reflect my own experiences in negotiations both as an attorney and as a neutral.
One of the very first cases I handled as an attorney involved an employee who had been asked to leave a job because the employer thought s/he was no longer capable of performing its essential functions. This employee had a serious, chronically debilitating medical condition and the employer had provided many accommodations to over the duration of the employee’s illness. Ultimately, the employer determined that it would be unsafe for the employee and for others to allow the employee to continue to work. S/he disagreed, and litigation ensued.
What became clear very quickly is that the employee’s identity and self-worth depended upon the ability to remain in the workforce. Moreover, the stress of the litigation impacted both the employee and the employee’s former co-workers, with whom s/he had been quite close. Both sides preferred a creative solution over protracted litigation. With the help of an extremely skilled mediator, the parties reached an agreement sensitive to the identity needs of the employee that also address the employer’s legitimate safety concerns. Negotiating the actual deal took only a few hours; addressing the employee’s perception that s/he would no longer be of value to society if s/he could no longer work took far more time. Once the employee let go of this perception, in part aided by some very creative future employment suggestions from the employer, the employee and employer reached terms quickly.
The moral of the story? Whenever possible, take the time to find out who really is on each side of the table. That knowledge may be far more important than the amount of money available to settle the matter.
Last month, this blog examined how often mediation is misunderstood by the public. This month, I’d like to take a brief look at how we can help the public understand what mediation is and how it can be of benefit to them. As you may know, the first cases I mediated were as a volunteer in small claims court. Many of the participants in those mediations wondered why they hadn’t been offered the option of mediation before filing their lawsuits and scheduling a hearing date.
Unfortunately, at least here in Massachusetts, budget cuts to the state court system have reduced the opportunities available to the public through ADR. Even in the federal court, mediations now are conducted almost exclusively by senior status judges or magistrate judges, whereas ten years ago, there was a robust panel of mediators available to litigants. Reduced budgets mean fewer opportunities to do more than keep the wheels of justice turning, however slowly. Exploring new alternatives to the traditional way of doing things takes time and resources, neither of which are available to court administrators.
So if earlier and more frequent opportunities for alternative dispute resolution are going to be difficult to come by through the court system, where can inroads be made to divert disputes that are prime candidates for mediation from the court system to qualified mediators? Two ideas spring to mind.
First, there are very few businesses that never encounter disputes that end up in litigation. Angry customers, shoddy suppliers, and disgruntled employees are just a few of the headaches faced by small businesses on a routine basis. Why not look to educate those businesses directly about what mediation is, how it is available to them, and how it can benefit their bottom lines? A two hour mediation with a customer who disputes a bill and has failed to pay for services rendered because they think the bill is excessive could save both parties time and money. Similarly, a mediation with a supplier whose services a business wishes to terminate could result in a far more amicable, and less costly, exit. Finally, a facilitation or mediation with an employee could resurrect a working relationship and could forestall costly litigation (multiple damages and attorney fees are commonly available in discrimination and wage and hour cases).
Second, most attorneys do not think of using mediation until after a lawsuit has been filed and pending for some time. One thing that I always tell my lawyer colleagues is not to wait to call me until after the lawsuit has been pending for months or even years. In many cases, if they are not able to resolve a matter prior to suit through direct negotiations, calling me early can save their clients time and money, and happy clients are recurrent clients who pass along the name of their favorite attorney to all who ask.
Do you have any other ideas as to how to bring mediation to the forefront of people’s minds when conflict arises? If so, please comment below. I’d love to hear from you.
When I began letting people know that I was opening up my own alternative dispute resolution practice, I had several people ask me when and how I made the decision to go into meditation. I quickly explained that I was planning to lead mediations, not meditations (at least not in public)! Nonetheless, those questions got me thinking. How many members of the general public really understand what mediation is and how it can help people resolve conflict without resort to the courts?
My first experience with mediation was as a young associate practicing law for a well-established, somewhat conservative medium sized firm. Few lawyers within the firm had any significance experience with or real understanding of mediation (one partner with whom I had a mediation early on in my career couldn’t decide how much of the case file we should bring!), but the partner with whom I was working on an employment matter thought it would be useful in our case because both sides of the matter had significant legal and factual strengths and weaknesses. Private negotiations were going nowhere because there were multiple defendants who could agree on very little, and we needed something to break the impasse if we were going to obtain a reasonable, and secure, resolution to the matter for a client who had a lot to lose if a court ruled against us.
Luckily, the mediator the parties agreed to use was none other than David Hoffman, who literally has written the book in Massachusetts on mediation. David mediated the matter over the course of a day, helping the parties to reach a resolution that addressed the needs and concerns of all parties. From that day forward, I was hooked on the concept of mediation as means to resolve clients’ disputes.
Twenty plus years, after having participated as an advocate or neutral in hundreds more mediations, I am convinced that few people outside of the legal profession understand what mediation is or what it can do to help resolve disputes in day to day life. As part of my mediation training, I did a practicum with the Community Dispute Settlement Center co-mediating cases in small claims courts. The only participants to the mediations I conducted during that practicum and in my subsequent work as a volunteer mediator with CDSC who have ever heard of mediation are the few attorneys appearing in that court, or the “frequent fliers” who appear there regularly to advocate for themselves or their businesses.
Part of my mediation process involves an explanation of what mediation is at the inception of the session. At the end of the session, regardless of whether the matter has been resolved or not, I like to ask the participants about their impressions of the process. Many with whom I have spoken have indicated that they wished mediation had been made available to them before litigation had commenced. The question becomes, how do we as neutrals educate the public about options to traditional litigation? More on that in future posts.