Posts Tagged ‘Mediator’

Your Judgment May be Impairing You

Author: Lee Jay Berman

Judging a Person Does Not Define Who They Are... It Defines Who You Are.Judgment is a tool that actually impairs a mediator. While it’s human nature to judge people as dangerous or not, the notion of good or bad is one that only makes us feel superior in our ability to pass judgment on them. As the quote says, it does nothing for us.

As mediators, listing to people tell their stories, the trained human response is to decide which story we believe, or which seems right, or more credible. The mediator’s job, in contrast to those things is to understand. To understand that the story we’ve just heard is that person’s offering, their truth. And what they need from us is to understand it and to honor it as such. We don’t have to agree with it, or validate it, or ratify it, we simply need to accept it as their truth, and make sure they understand that we have done so.

The challenge to one being a really complete mediator is their ability to hold two separate truths simultaneously. Can you? Can you hear to stories that sound 180 degrees different and hold them both, and still be of value to them in helping them reach an agreement that allows them to put the dispute behind them without scratching the itch of needing to know who is right? Or whose truth is closest to the real truth? If so, then you may be cut out to be a mediator. If not, you may just need more practice at suspending judgment and really, deeply listening to people, while quieting the chatter in your mind that’s busy judging. If you can learn to do that, then you will see the world in a different light. That is the light of the mediator.

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Amam Feisal  Abdul Rauf by Tom A. Peter / The Christian Science Monitor / Getty ImagesRadio talk show host Michael Medved got it right when he urged President Obama to “welcome conversation to replace confrontation” in the debate about plans to build a mosque in lower Manhattan near ground zero (the Park51 project).

“If leaders on all sides managed to address the dispute in a broader perspective, it ought to become obvious that Americans actually agree on both of the key issues in the debate,” Medved wrote in “Time for a Mosque Beer Summit?

Issue one:  Muslims have the right to harassment-free worship.  Issue two:  The proposed location is a lightening rod for America’s concern or fear surround Muslims.  Medved asks, “What prevents the various parties to this battle from cutting through the multiple misrepresentations and misunderstandings to reach a meeting of the minds that would benefit everyone?”

That’s a good question, particularly since government officials including the likes of New York Gov. David Paterson has offered to help find a less controversial location for the mosque.

Sometimes a solution that seems so simple to third parties doesn’t even address the heart of a conflict.  Many Americans are still angry about Sept. 11, 2001.  Muslims don’t feel welcome in much of America, and holding on to one address in New York may be largely symbolic of their greater battle to win acceptance in this country.  If any situation could use a good mediator, this is it.

When two sides become as entrenched as those we see here, they need to talk in a neutral setting with an accomplished mediator who has the capacity to recognize the emotions behind the conflict, to ensure that each party listens to and acknowledges his opponent’s position, then to help them move beyond to a workable solution.  We call this a “win-win,” when both parties end up with what they essentially wanted in the first place.

It’s hard to get there, though, when people keep shouting at one another, clinging to their rights and refusing to come to the table where a meeting of the minds can occur.

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oprah winfrey courtesy afro.comOprah Winfrey last week settled the defamation case brought by Nomnuyo Mzamane, the former headmistress of Winfrey’s girl’s school in South Africa.  “Winfrey made certain remarks following a 2007 sex-abuse scandal at the Oprah Winfrey Leadership Academy for Girls in South Africa.  Mzamane’s lawyers claimed that, because of Winfrey’s visibility and popularity, she could easily sway the public to believe that her statements were fact rather than allegations.” said Afro.com.  However, “Winfrey’s defense for her statements was that she was exercising her right to free speech and she was just voicing her opinion about the incident.”  See “Oprah Winfrey Settles Defamation Lawsuit”.

What’s remarkable about their settlement is that Winfrey and Mzamane met together on the eve of trial without their lawyers to craft what their representatives described as a peaceful resolution to their mutual satisfaction.

Once a lawsuit is filed, litigants don’t usually meet together without their lawyers to try to reach a settlement.  Few lawyers would even advise it, and that’s not because the lawyers are always anxious to display their courtroom skills.  Normally, by the time a dispute makes it to trial, the parties have exhausted their own abilities to settle the controversy.  “According to the suit, there were several comments which drew the ire of Mzamane.” said Afro.com.  What it takes is someone who hears a statement like that and understands that the parties need to come together face to face, and it takes a person such as Oprah Winfrey with above average communication skills to accomplish what few can do on their own.

This is not to say that litigants meeting to talk about their cases isn’t wise.  But after months of litigation, people tend to become even more polarized, which is why having an experienced mediator there to facilitate the communication, keeping them on track as they talk about settlement, is often a good idea.  That’s the main reason mediation exists.  But most people need a skilled communicator who is not emotionally involved to facilitate the kind of peaceful conversation Winfrey and Mzamane had.

Mediation is the process of sitting down with the person or company with whom you have a dispute and talking about possible solutions.  Successful mediation involves brainstorming, negotiating, talking about the problem with the goal of resolving the dispute cooperatively, collaboratively, with the help of a professional, unbiased third party who brings experience and creativity.  And here’s the best part: the litigants retain control of the outcome, instead of turning it over to a judge or jury.  It is the peaceful way to resolve a dispute, the civil way, and I would argue, the new American way.

From all indications, I believe that Oprah would agree with me.

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elderly sisters lottery fight from The Hartford Courant via APTwo Connecticut sisters, 87-year-old Rose Bakaysa and 84-year-old Theresa Sokaitis, are involved in a lawsuit over a $500,000 lottery win.  Theresa filed suit after Rose ignored a written agreement between the two that stated they would split equally all lottery winnings.  After Rose hit the jackpot in 2005, she shared the winnings with her brother instead.  Theresa wants Rose to honor the contract.  See “Elderly Sisters Battle Over $500,000 Jackpot.

Like almost every dispute, the argument between Rose and Theresa has a back story.  After Rose’s 2004 heart surgery, and Theresa nursing Rose during her recovery, the sisters had a tiff over a few hundred dollars.  Theresa told Rose she didn’t want to be partners, and Rose tore up the contact.  Theresa kept her copy.  When Rose and her brother won the lottery the next year, Theresa showed up to collect.  Rose declined.  Theresa sued to enforce the contract and, as a result, the two sisters have not spoken for five years.

I knew I was meant to be a mediator when in my 20’s I instinctively reunited my grandmother and her sister, my great aunt, who hadn’t spoken in over 20 years.  That’s why this lawsuit – which never should have seen the inside of a courtroom – strikes a special note with me.  While it is unfortunate that their contract didn’t have a mediation clause, it is more unfortunate that the Sokaitis family didn’t know what mediation could do for them.

People like this don’t fight over money and contracts.  They fight over a lifetime of poor conflict resolution skills.  It sounds like “Five years ago, you took advantage of me.” and. “Twenty years ago, you told Dad that I said…”

There is almost always more underlying a dispute than appears on the surface.  Good mediators know that pride, acknowledgement of wrongful behavior, admission of guilt and apologies can play an important role in resolving a conflict.  Sometimes it is as simple as clearing up a misunderstanding, after which reaching an agreement is considerably easier.

Courts are not equipped to deal with issues such as these.  In court, attorneys speak in a language unfamiliar to the average person and make procedural motions that at times seem to have little to do with the dispute itself.  Only mediation gives people the chance to actively participate in their dispute resolution process and in creating a solution to their disputes with the assistance of a skilled mediator and the guidance of their legal counsel.

Mediation is the best dispute resolution mechanism for Rose and Theresa.  If their judge doesn’t refer them to mediation, and they don’t find a skilled mediator themselves, their trial will only determine who takes home the winnings, leaving the sisters to live their final days angry at each other and not speaking.  A skillful mediator will not only help Rose and Theresa determine who gets the money, but will also help them see the big picture – namely that their relationship, especially at this age, is more important than a tiff from years gone by or than an amount of money that is more than they could spend in their remaining days.

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Dark Side of the MoonPPink Floyd is suing its former record label EMI over how royalties are calculated on internet sales.  Among other things, the band is contesting whether its 1999 contract allows sales of individual tracks, as EMI contends, or mandates only complete album sales, which is how Pink Floyd interprets the contract.  “When Pink Floyd’s latest contract was crafted in 1999, iTunes didn’t even exist,” EMI attorney Elizabeth Jones sums up the label’s argument.  “Pink Floyd, EMI Brawl Over iTunes Royalties”.

Almost all contracts are ambiguous, and parties whose incentives cause them to interpret contract terms in their own favor will disagree about almost any contract.  Even the greatest transactional attorneys in the world can’t account for every contingency or every evolution of technology, biology or ecology.  This is why courts look at the intent of the contract.

Mediators bring disputing parties back to the contract’s original intent.  Really good mediators can bring parties all the way back to their relationship at the time of the agreement and the reasons behind their decision to do business together.  It’s not unlike reminding a divorcing couple about their courtship and their wedding to allow them to remember they didn’t always feel animosity toward each other.

In 1999, EMI no doubt courted Pink Floyd for its business.  Pink Floyd signed with EMI, even though the band likely had its pick of record label suitors.  Both of them would do well to remember their original motives and intentions that drove their choices.  In that light, they can view the disputed agreement (I find it ironic that people often fight over something called an “agreement”) with a less extreme interpretation, and each other as something less than the devil incarnate.

Ken Cloke wrote in his book Conflict Revolution that most people have to reduce the other to evil to sustain a fight at the high conflict or heavy litigation level.  Revisiting intent surrounding the original agreement can be a step toward humanizing the conflict.Pink Floyd's The Wall

In reality, these two entities (they are both businesses, after all) will necessarily have a long-term relationship for as long as EMI owns the Pink Floyd catalog.  What that means from a negotiation standpoint is that they can remain in a competitive state, they can settle the lawsuit with a compromise where each walks away still angry because they are anchored to their loss, or they can mediate collaboratively to a satisfactory resolution for both parties, thereby preserving their relationship.

Successful mediation in this case will require three elements:

1.)    Good lawyers capable of seeing the lawsuit as more than right or wrong litigation.  With all due respect to strict litigators, a creative deal-making lawyer at the mediation table is often helpful because transactional lawyers typically view negotiation very differently than a straight trial lawyer;

2.)    The right parties in the room.  We mediators are always making noise about why having all decision-makers in the room is important.  To have any kind of creative discussions, it’s required.

3.)    A mediator who can steer the discussion (often repeatedly) from destruction to a constructive business meeting where the parties explore all options.

For example, options in the Pink Floyd/EMI conflict could include exploring Pink Floyd buying back its catalog or allowing single-sales from all albums except the two top sellers, The Dark Side of the Moon and The Wall.  A monetary settlement amount could be funded with something other than cash, such as EMI stock, which would give Pink Floyd a greater stake in the label’s success and direction.  These conversations and other brainstorming around these issues can only take place when the table is set in a way that allows them to flourish.

Most settlement discussions in similar cases start with a sky-high demand and a nuisance-value offer, if any.  Where it goes from there depends on the lawyers and the mediator.  But contract disputes have the potential of becoming much more than just a compromise around the dollars.

Pink Floyd’s lawyer wants a finding determining what the contract says.  If every contract in the industry was written the same and a court ruling would set precedent, perhaps litigation is necessary.  But in the case of this unique contract, I submit that it’s not a verdict that is needed as much as a few creative minds.

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The U.S. House Foreign Affairs Committee passed a resolution on March 5 publicly acknowledging and condemning Turkey’s Ottoman army for their role in the Armenian Genocide almost 100 years ago.  According to New York Times reporters Sebnem Arsu and Brian Knowlton, “Turkey reacted sharply, recalling its ambassador to Washington, Namik Tan, in a display of annoyance.  Turkey is a critical United States ally in NATO, but the question of Armenian genocide taps deep veins of national pride.”  Turkey’s Foreign Minister Ahmet Davutoglu told the reporters, “Each interference by a third party will make this normalization impossible.”  See “Turkey Criticizes Committee Vote on Armenian Killings.

With all due respect to Minister Davutoglu because I know he means well, the U.S. government acknowledging the Armenian Genocide will not harm Turkey-Armenian relations and it should not add strain to Turkey’s relationship with the United States.

Minister Davutoglu doesn’t understand what mediators know to be true:  There are different levels of defining peace.  While many people, Americans mostly, define peace as a state of bliss where everything around us is good and everyone around us gets along, others, notably people in war torn countries, consider peace to be an absence of active war.

Mediators define peace (we call it “success”) differently, too.   One way is compromise that avoids expensive litigation through settlement, but doesn’t necessarily resolve the conflict.  The parties may still walk away believing their opponents are the enemies who intentionally injured them.  If the relationship continues, as it often must, the unaddressed, underlying conflicts resurface and manifest in a new dispute.  Take neighbors, for example, who dispute property lines or encroaching tree limbs.  Once the survey is done and the tree is trimmed, that immediate dispute is settled.  But unless the animosity and bad feelings between them are addressed, and the underlying conflict resolved for good, new disputes will likely erupt in a few months over parked cars, fertilized lawns, noise, lights or any other lever disgruntled neighbors can find to fight about.  That’s how unresolved, underlying conflict continues.

Turkey and Armenia are neighbors who will never have true peace until the travesties of the past are acknowledged, discussed and artfully apologized for.  My “Talk It Over” co-host Louise “Weezy” Palanker puts it this way:  Don’t just say “I’m sorry,” (or worse, “I’m sorry you feel that way”), you have to also say, “can you ever forgive me?” and “what can I do to make it up to you?”  The transgressor who asks these questions is taking responsibility for his or her actions and attempting to make things right.

Minister Davutoglu seems to believe that silence and a lack of unrest indicate that all is well when it fact, Armenians are merely tolerating the current situation while still holding a vey deep grudge, resulting in an unresolved underlying conflict.  Real peace between Turkey and Armenia will be achieved once Minister Davutoglu or another high-ranking Turkish leader delivers a public acknowledgement, complete with a responsible apology, and asks the “what can we do to make things right?” question.  Then, and only then, can discussions about forgiveness and peace begin.  And perhaps then, the world will have one fewer ticking time bomb ready to explode in that part of the world.  Permanently.

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Senator Max Baucus (D) of MontanaAs a mediator, I have a hard time watching how our country is operating right now, both internationally and domestically.  I see this every day in the micro context of my mediation cases and in the macro context of our headlines.  And yet people just keep trying to get ahead by attempting to suppress each other without recognizing that they are actually working against their own best interests.

For example, in “Obama Offers to Use Some G.O.P. Healthcare Proposals,” New York Times reporter David Herszenhorn writes, “Mr. Obama announced his plans to work on the Republican suggestions in a letter to Congressional leaders of both parties.  But his main point was one Republicans did not welcome:  that Democrats would press ahead with comprehensive legislation over the minority party’s objections.”

The reason we have so much litigation in America (especially in California) is that defendants so rarely understand that their actions often guarantee a lawsuit.  When one party suppresses another to the point of pain or powerlessness, the injured party feels he or she has little choice but to retaliate.  Plaintiffs choose litigation because it may be the only legal way to inflict suffering – loss of control, unfavorable publicity, monetary awards, punitive damages, etc. – of the caliber the defendant will understand and respond to.

As a result, defendants are often responsible for creating the emotional monster on the other side of the table. When plaintiffs believe every other door has been slammed in their faces, they become enraged enough to flex their muscles in the only remaining venue where they stand a chance of having a level playing field.  Of course, the same is true in the other direction, with plaintiffs sometimes overreaching, leaving the defense with no choice but to go to trial, and fight back with a vengeance.

What makes mediation work is the introduction of a neutral third party.  Having an unbiased person at the table can bring big picture perspective into the room when all others are mired in the fog of their power games and can’t or won’t see another approach.  Perspective is a mediator’s greatest qualification.

That’s why President Obama can’t be the mediator of all the controversial congressional reforms:  healthcare, job creation and financial system accountability, to name a few.  He has a dog in the fight and he’s one party’s (read: extreme’s) leader.  If he were serious about leading, he’d appoint a neutral person who could bring with them reason and perspective.  A real neutral, who wouldn’t be a politician campaigning for re-election, would turn off the cameras, close the door, and encourage everyone to disclose his or her needs, pressures and underlying interests in the privacy and confidentiality of the mediation process.

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Lee Jay Berman - med-150Hello and Welcome.  Please allow me to introduce to you my new blog:  Eye On Conflict.  I’m not the first mediator to blog, and I won’t be the last.  But like everything a good mediator does, this choice was well thought out and thoroughly researched before I embarked.

Beginning with the environment.  What you are seeing around this environment represents to me a lot about what I do as a commercial mediator.  At the top, the feather represents the light touch a mediator sometimes needs, as mediation is a lot about nuances, subtleties and a delicate touch.  And yet the coins represent the thing people are generally fighting over.  The pen indicates to me the ceremonious signing of the mediated agreement, which represents a person’s consent and their bond to adhere to the commitments made in that agreement.  The stone will always remind me of my dear friend Erica Ariel Fox’s Global Negotiation Insight Institute (GNII), as she uses it in her picture logo, and her teachings stay with me where ever I go, but especially in the mediation room.  The leaves relate to the acorn at the bottom of the page, where every great settlement – simple or complex – grows from the tiny acorn of an idea that often other people said would not work.  Kind of like a non-lawyer being a successful mediator working in the world of litigated cases.  Notice at the top how one is younger and rich in color, and the other is older and looks about to turn.  It is always my goal to mediate with the energy, stamina, wit and being the quick study of a young soul, but with the wisdom of a person seasoned with the years of a life in business, negotiating complex deals way beyond my years.  Given that when I began 15 years ago, I was a young-looking 32 year old, the first part wasn’t ever in doubt.  But I have always lived my live through the eyes of an 80 year old me, rocking on the front porch with a glass of iced tea in hand, looking back with the perspective of how my work this day, and the deal we reach, will be judged by me and others from that retrospect.

The dark wood represents the solid backing I have always had from my family, my friends, and from my loyal clients – often the lawyers who have trusted me with their clients most difficult disputes.  And the coffee stains at the bottom represent to me the many, many hours of hard work that have gone into creating my mediation practice, and that in a single day to any meaningful resolution.

This blog is intended to be a discussion, a dialogue with you, about mediation, conflict resolution, dispute resolution, conflict management and negotiation in settings from neighborhoods to workplaces to litigated cases to current events and global issues.  I welcome and look forward to your input, comments, additions, and disagreements.  Let’s talk!

My two themes, which you will find me repeating often throughout this site are:  There is no substitute for experience. And:  Tough issues call for masterful solutions.  I urge you not to underestimate either one.  And I hope, through the words that will follow in the days, months and years ahead, to provide both.

I will, from time to time, mention the training institute I founded in 2008, the American Institute of Mediation (the AIM Institute), and my radio talk show called Talk It Over.  I will do my best to avoid shameless plugs and only refer to them when there is a learning point or a resource that can be derived from them.  But I do hope you’ll check them both out.

One last thing, while I think my writing is conversational and easy to read, and grammar is generally OK, I’ll confess right now that just like when I drive my car, there are some rules I choose to follow and others I choose not to.  Case in point:  in writing, I choose to end sentences with prepositions, when it feels right to me.  There, I’ve said it.

I’m glad we could get a little better acquainted.  I hope you’ll stop by and visit again some time soon.

Until then,

Lee Jay

Lee Jay Berman
The Mediation Offices of Lee Jay Berman
Founder & President, American Institute of Mediation
Co-Host “Talk It Over” radio show
Complete C.V. and info at www.LeeJayBerman.com
More in mediation at www.MediationTools.com

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