Saturday, February 23, 2013

Effective Interviewing Techniques

My kids tease me because I ask so many questions of strangers.  It's a technique I learned only once I became a mediator.  (When I was a lawyer, they would accuse me of "taking their deposition" at the dinner table instead).  Yes, I am "that lady" who makes great friends during plane rides and while waiting in line or at the Beauty Salon.  I am "that person" who meets a stanger at a party and learns about his long-estrangement with his daughter, her challenges with her elderly mother-in-law, his illness or her weird new hobbies.

In mediation, effective interviewing is designed not only to create rapport, but to gain and convey genuine understanding of each disputant's unique perspective.  Often, it will reveal hidden drivers that underlie the conflict and ultimately hold the keys to resolving the dispute.  For example, an individual may want to leave his job and start a new company, she may want to return to school or leave her husband.  Any of these life changes will help to focus the discussion towards a settlement that will meet their needs and interests.

In order to do that, Mediator's ask a lot of open-ended questions:  "Tell me more about that." "How did you feel when that happened?" "And what else?" After practicing awhile, you become naturally curious, weaving together each unique story to help achieve some positive outcome for both sides of the dispute.  These techniques will serve the additional benefit in networking and building a practice.  Asking a lot of questions of people you meet will be more effective in endearing than telling them a lot about you.   They say that is why we have two ears and only one mouth.  Listen.  It becomes fun after awhile--and helps pass the time in those long flights!

Friday, February 15, 2013

Show Respect and Empathy, Never Judgment

One of the Mediator's Tools outlined in my upcoming book, "View from the Middle of the Road:  A Mediator's Perspective" is to summon humanity with a goal of helping people who are suffering reach an end to their conflict in a way that brings them peace and closure.  This week in California we had a dramatic and tragic event when a young Police Officer, Christopher Dorner, snapped after years of conflict with his own employment situation, killing 4 innocent people.  While I certainly can't condone his violent conduct, I can see this:  Dorner had a POBRA hearing (an administrative hearing under the Police Officers Bill of Rights Act) to challenge his termination, which was based upon his allegations that a fellow officer engaged in the use of excessive force against a citizen.  The Hearing Officer found against Dorner and upheld the termination.  Dorner appealed that finding, claiming that he had been wrongfully discharged.  He lost on his Appeal.  Dorner was clearly a very talented, bright, well-trained Police Officer.  He never got over the termination from the Police force, especially since it was based upon his own reporting of another policeperson's misconduct!  He took to the Streets in rage.  As the flames were smoldering that little cabin in Big Bear, I couldn't help but wonder whether Dorner ever had a single empathetic ear during his legal struggles against the LAPD.  Though Police Officers have rights that go beyond ordinary employees, they do not usually have a mandatory mediation process where the Supervisors or Heads of Human Resources might have explained the reasons why Dorner was terminated in a way he could have understood:  or the converse, where Dorner might have expressed why this particular termination was so devastating and perhaps been transferred to a different department or given some additional training on acceptable v. unacceptable uses of force.  Whatever the outcome, this Mediator thinks that some showing of respect for a Police officer's reporting on another officer, even if it's erroneous, may have gone a long distance towards helping this troubled individual get beyond his termination and maybe save 4 or 5 lives!  It's a dramatic example, but I believe it's true:  it's so rare to have a non-judgmental, empathetic, neutral listen to both sides and offer each other's perspective.  Mediation can be an invaluable tool--even outside the litigated case.

Saturday, February 9, 2013

Always Clarify the History of Negotiations

It happened again last week.  Plaintiff's brief indicated he had made a Statutory offer to compromise at $100,000 in November.  The mediator takes him at his word, though I check to make sure that he is willing to begin the negotiations at that number, and not, as sometimes happens, at a number higher than that since the offer to compromise has already lapsed and expired.  Then at the mediation, it comes out that the previous offer was never served on the other side.  Those high stakes that are presented when a party makes a written demand, which may serve to either open the insurance policy if there is a verdict beyond it's limits or give the offeror the right to collect fees and costs if the verdict comes in above that amount are all off.  This error in both communication to the mediator and to the Defense counsel cost the Plaintiff plenty.  After two and a half hours, the parties' stalemated because Plaintiff's counsel wasn't prepared to negotiate in a range that could have settled the case based upon his mistaken belief that he had already communicated the $100,000 demand.  The liens on the case were simply too high, and for the defendants, the stakes too low to worry about a real risk.  Even where there are assertions made that one offered something and one demanded something else, it's critical that these communications are clarified in advance of the mediation whereever possible. 
     In another example, which I discuss in the Chapter I call:  "Who Are you Calling Old?" in my upcoming book, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction", the Plaintiff's attorney told the Defense Counsel he thought his case was worth "mid-six figures".  Believing he meant $150,000., Defense Counsel invited Plaintiff to participate in a mediation.  When the first demand was made at $1 million, Defense Counsel was incensed.  But did Plaintiff's counsel mean mid-six figures was $500,000.?  Both cases eventually settled at what was probably a fair value, but clarifying these pre-mediation settlement discussions at the outset or before the hearing begins can save hours of anguish for parties and counsel.

Sunday, February 3, 2013

Resist the Temptation to Negotiate too Soon

Participants in mediation usually know how it ends:  there is a negotiation and one party agrees to pay money to the other.  So why not get right to it?

I am struck by a lot of dialogue that has gone on in the mediator's blogosphere since the fatal shooting of a party to a mediation and his lawyer by an aggrieved party during a mediation in Phoenix.  The most telling comment I saw was offering some humility to mediators.  Though the disputants may know one another well, we have usually less than a full day to get to know two parties, their attorneys, the facts and legal claims.  In truth, we have no real idea of who these disputants are, have been or may become. 

What we do know is that even the most mundane of commercial disputes are rarely solely about the money involved.  There is pride, there is ego, there is a lack of respect or communication or both.  There is deep hurt, shame and sometimes status at stake.  Taking time to listen, attempt to comprehend and then communicate in ways that have not been understood or respected prior to that day takes time.  If you skip a step and rush to numbers, you will undoubtedly sacrifice some of the true benefit offered by this alternative dispute resolution process.  A jury or judge can decide who is right and who is wrong and what the value of the case should be.  A mediator offers a chance to do more than that--if you listen for the cues.