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!

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.

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.

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.

Rehearsing Your Lines for a critical Scene

Actors rarely ad lib, though they present their character with the utmost of conviction.  Trial lawyers carefully rehearse their opening arguments and sometimes their key examinations.  So why do we presume to relax the rules at a mediation simply because it's an informal process?  From my perspective, when you ask your mediator to deliver some message that she thinks may come across as outrageous, it's worth a brief rehearsal.  Likewise, when you are asking your mediator to bluff in the negotiation stance, or to hold on to confidential information which the other side may find critical to a better evaluation, it pays to rehears the scene before deputizing your messenger.  The third reason I like to rehearse my lines is because occasionally, when you play back a ridiculous message, the sender will push "delete" instead of "send".  We can all take care not to haphazardly deliver critical lines in the course of a mediation by a simple rehearsal.  That way, if the message comes across as arrogant, deceptive or mean, you can work on ways to soften it before it is delivered, or come up with new lines altogether. 

Another advantage to rehearsals in mediation is that your mediator may be able to reframe the message to take the sting out.  So, for example, if you are about to offer "nuisance value" and it happens that the dollar amount equates to one month of lost salary, or one month of rent or one semester of tuition at a local community college, she can communicate the offer in a more positive light, thus creating a more receptive adversary--one who is not insulted or offended, but encouraged and respected.

Check the Mediator's Personal Biases at the Door

One of the tools that is most difficult to employ as a mediator is to check your own biases at the door.  This week, for example, I had two mediations which challenged me to do just that.  The first was a retaliation in employment case brought by a young man who was the same age as my son-in-law.  I tried to imagine how my son-in-law would react to the issues brought in.  In that case, the young man had learned that his manager was engaged in some criminal misconduct and reported him to the police.  Thereafter, he was removed from this man's supervision and later experienced other employment consequences leading to making a claim against his employer for retaliation for being a whistleblower.  No matter which way I struggled, I couldn't imagine any of my son's finding themselves in that predicament.   It was only after the case was settled that I realized that I was bringing myself and my own pre-conceived notions of justice and integrity into the hearing.  Big mistake. 

The second case was a landlord/tenant case against a lawyer and his wife who had rented a beautiful home on the beach in Southern California and then discovered a number of problems with the property, ultimately withholding several months of rent.  I assumed that one would be easy for me.  I knew that a lawyer has a certain earning potential and that likely this would simply be a discussion of an offset for the defects in the property.  Not so.  I had no concept of how a lawyer and real estate broker could actually fall so far into debt far that they could not afford to pay their own rent.  That one left in an impasse over less than $10,000.

This is merely a cautionary tale about bringing personal biases into the mediation conference room.  If you sense that your mediator is not sufficiently detached from the litigants or their story to do this, try taking him aside and expressing that concern.  It may be enough to re-focus the mediator and get the job done.

TIMING AND ASKING HARD QUESTIONS

At this time of year, we are acutely aware of timing.  This can affect your mediation in ways of which you should be conscious.  This week, consider the following Mediation Tools:
3) Timing:  In an employment case, does your client want the damages to be taken in this calendar year when earnings are less than last year? Does your client want to settle the lawsuit so that he can return to work without compromising his claim to future lost wages? Can your client afford to suffer further lost earnings for the sake of building damages in the lawsuit?  Does the Defendant have an idea of the value of the claims so that they are fully prepare to negotiate a final resolution? Have critical depositions been completed? Do the parties need to approach that "fiscal cliff" by getting very near to trial in order to be ready to fully settle the dispute?  Does one or the other party need to experience the "brinksmanship" that the U.S. Senate did before they can arrive at a compromise?  These are issues worth addressing in every mediation.
4) Ask the Hard Questions:  Mediators can be most effective if they ask the hard questions of the lawyers or their clients at the outset or even before commencing the hearing.  So often, the events that occurred at the time the dispute arose caused one party to make a decision to pursue a lawsuit and the other party to resist settling the claim.  Take, for example, the dog bite case where, instead of apologizing and offering to pay for medical attention, the owner screams at the victim about scaring the animal.  Upon inquiry, say that dog owner refers the victim to her lawyer or insurance carrier, instead of offering to take care of the bills directly upon presentation.  Where does the victim go next?  Often to a lawyer!  At that point, the communication between the two disputants has completely broken down and settling the lawsuit without formal intervention through a neutral becomes nearly hopeless.  Once you have made clear to the mediator the basis for the dispute and the particular dynamics between the parties, it may be much smoother to resolve the dispute than it was "on the street" without your assistance and the intervention of a neutral third party.