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Avoiding Impasse in Mediation

Avoiding Impasse in Mediation

When you’re struggling to make any progress in a mediation is it because the parties have reached an impasse, the inevitable crossroads in any mediation, or is it because you haven’t prepared effectively for the mediation and in some way are unintentionally contributing to this stalemate. For Lee Jay Berman, impasse is a false notion and a convenient construct to mask an inadequacy in our practice. This is a great interview in which Lee Jay describes how as mediators we can be proactive and avoid encountering this phenomenon and also what we can do and say when faced with a party who is struggling to take the next step. This is Part 1 of a 2-part instalment, head over to – ‘A Versatile Mediator Toolset‘ if you enjoyed the first part.

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Full Transcript

Aled: Hello everyone my name is Aled Davies, founder of Mediator, home of the hungry and passionate mediator. And a place where mediators old and new comer listen to experienced mediators tell a story about how they’ve built their mediation practice, or shaped their career, how they’ve handled particular dilemmas and challenges that we all know are out there waiting to jump out at us when we least expect it. And what they’ve done that has helped them become effective and successful mediators.
Now you know you I feel about these interviews I find them inspiring, I find them motivating, they encourage me to try new things either when I’m mediating or I’m talking to new clients about mediation. And I hope you’ll be inspired too so that you can go and take what you’ve learned into the world, and build your own success story. And maybe you’ll come back here and tell your story to my audience.
Okay, so the big questions for today’s interview are what do you do when a party during a mediation start to dig their heels in when you are struggling to make progress? I know it’s frustrating. I know others find it frustrating too, but do you ever look back and wonder what you could have done differently to avoid reaching these sticky moments, or is it just inevitable? Is it something we have to accept we just need to find a way of navigating these intractable moments?
I’ve also got something that I know some will find controversial, but I think it’s important to explore and it’s to do with some might say breaking the rules when it comes to mediation, but I come onto that a little bit later.
Okay, my guest today began as a full-time mediator and trainer over 18 years ago, and has successfully mediated, wait for it, over 1,700 matters. He’s a national panelist with the American Arbitration Association, a distinguished fellow with the International Academy of Mediators, internationally certified by the IMI, and a dispute resolution expert with the United Nations development program. He has received numerous accolades, too many to mention, but I’ll definitely include them in his bio. He’s the Founder of the American Institute of Mediation where he collaborates with legends like Ken Cloke [SP], and Erica Fox [SP]. In addition to his many lecturing commitments he has trained judges, attorneys, and business leaders in Croatia, India, Jordan, Netherlands, and the Unit Arab Emirates.
The guy is always writing, speaking, publishing about mediation. I just wonder when he’s got the chance to sleep, which is why I’m really delighted to welcome onto Mediator Academy from across the pond Lee Jay Berman, welcome.
Lee Jay: Thank you so much, what an introduction. I’m glad to be here.
Aled: Look, Lee Jay, all of my guests are special, but you are my first American guest so you’re extra special.
Lee Jay: Wow.
Aled: I really appreciate your time today. So look I’m going to get straight down to it okay. I talked briefly in my intro about those difficult moments of mediation when the parties reach what we might call and impasse, or resistance to progress. What exactly…
Lee Jay: Well, yeah, I prefer the latter.
Aled: Okay, well, what exactly is that sort of resistance to progress in the context of mediation?
Lee Jay: It is a lot of things I mean if we want to get into their heads it is that they’re reaching a point that is nearing their expectations, and having to cross that point to work. In many cases when we’re dealing with compromise to work beyond their expectations, and perhaps give up more of what they were expecting. And so it is where they hit a pause in a moment I think where they are getting frustrated it’s been a long process, they may not be accustomed to how it works. And they start to dig their heels in because they start to feel I think like just too much is being taken away from them.
And there’s a part of their- Erica Fox would say their warrior kicks in and want to defend them, and wants to say, “That’s enough that’s enough I’m being taken advantage of.” And it is those moments that we mediators who have been doing this for a long time have to see that coming in advance, and head that off. That is kind of how I look at it.
Aled: So it is almost as if they are reaching the edges of their comfort zone. Or they’ve gone past their comfort zone, and they’ve kind of realized that they passed their comfort zone. And they are kind of looking back to say hang on, scrabbling trying to get back into it.
Lee Jay: Yes indeed. And what they’re doing I think in that moment is they are blaming the person in the other room for that discomfort that they are feeling. And taking it out I believe on that person and sometimes on us because they are feeling frustrated and scared, I think.
Aled: Okay, so it sounds like then it is some kind of psychological phenomenon, I guess, that maybe leads them to react, or is there more to it than that?
Lee Jay: If I could back up just a step from what you just said I think of what we do as a compilation, and a blending if you will of everything. My background is civil mediation, and I’m dealing with businesses most of the time, so there is some business knowledge, there is some psychological knowledge, there is negotiation knowledge, and then of course process knowledge which we bring from the mediation process. I think we can look through any of those lenses at that moment, and define it as the focus from what the world would define it.
So I gave you how I look at it first, which is the psychological piece because I tend to look at what motivate people. I’m not a psychologist I’m not a lawyer I’m a mediator. And in looking at it I just chose that lens, but we can very easily look at the negotiation lens and say they are looking at their value they they are trying to claim, and they are frustrated that they are not claiming enough of their value. And they are trying to figure out how to manipulate the negotiation in order to claim more value and feel like they’ve won. Or we can look through a different lens in a different way.
But I think we have to be careful about defining that moment, or anything that we do in that moment through a single perspective.
Aled: So, okay, so it sounds like there are a number of ways of interpreting when we encounter that resistance we can interpret it in a number of different ways. We can interpret it as some kind of psychological barrier that they hit. We could interpret it through the lens of kind of a process, or indeed it could be a deliberate strategy from a negotiation perspective.
Lee Jay: And that is a beautiful catch right there because it could be involuntary on their part, or it could be voluntary, or it could go so far as being contrived. So I think that’s why we mediators have to be careful to assign any kind of attribution or intent to it. Because we have no idea whether we’re being duped, or they are just manipulating the process, or whether this person is about to fall apart psychologically, and melt down or walk out the door.
So I think we’ve got to be careful not to attribute our own value system to it. But rather just take them where they are at, and look at the process, and say what are we going to do next?
Aled: Oh, that’s lovely. I really like that I like the fact that there could be a number of ways of explaining this. It could be intentional, unintentional, or a deliberate strategy. But the moment that we attribute something to their behavior, then we can I guess create some unintended consequences, or reduce our effectiveness as mediators.
Lee Jay: Yes. I think that you’ve touched on this, and I have to salute the way you’re working so hard not to use the word impasse because you know how I feel about that word, and we’ll talk about that in a moment. But yes, I think what we do is we take the full 360 degrees of our skill set, and as soon as we label something, we narrow the breadth of our skill set that we’re going to allow ourselves to use in that moment. If we see it as a psychological problem, or as a manipulation problem, or something like that, we go to that set of our skills and we narrow what we’re going to find ourselves able to call upon when we need it at that moment.
By leaving it open and not putting a label on it, we can grab skills from all different directions. And sometimes that is what works that is what shakes it up, and disrupts it a little bit, so that it gets over that speed bump and can continue down that road. Because it wasn’t as if it hit a cliff that they would fall off of if they went any further. It’s just to hurdle, it’s a speed bump. They need some reassurance they need some progress they need something in that moment to change it up and let them continue.
Aled: You see, I’ve encountered resistance in mediations in my past. And I’ll tell you what there’s a little part of me If I’m honest there’s a part of me that feels disappointed with myself. Sometimes I attribute the resistance to something lacking in me, or my ability, or my skills. And when I’m aware and I notice that it is almost where do I locate the resistance.
And sometimes I locate the problem of the resistance being me and the deficiency of my skills. When in actual fact, what you’re saying is there are a whole host of other reasons why the parties are choosing or not, as the case may be, to find themselves in the situation they are finding themselves in. And as mediators we have to approach that moment in a way that maybe tests some of our assumptions out, or moves them on. I mean I want to get into kind of the specifics of how do we deal with when we encounter those types of resistances?
But I’m also interested in finding out what can we do proactively so that we’re not having to fight fires in mediation for want of a better expression. But we can pave the way to make these conversations more I don’t know productive sometimes.
But you’ve got a reaction to the word impasse, and I notice you coming in in a rash now right?
Lee Jay: TouchÈ.
Aled: What’s the, tell me about that.
Lee Jay: I’ll tell you. My resistance to the word is that I think mediators have made the word impasse a scapegoat for all of the things we could be doing wrong. So let me take a couple of steps back. I think it’s very natural for most mediators to have the reaction you do to hitting that moment, and looking introspectively and saying oh my gosh what have I done wrong [inaudible 00:11:49] in that especially if they could be manipulating us in that moment.
The danger in that is one we’ve allowed them to take the burden the heavy yoke of burden that they have for the dispute they are in for the actions as you said that got them there, and place that on our shoulders. And we’re wearing that heavy burden and saying I have to fix this problem. So they’ve trapped us already into taking responsibility for their issues which takes us completely out of the facilitative mode in that moment. Because now we feel like we have to do something actively to fix it for them. They have triggered our caretaking service providing sense of wanting to do that, so we have to be mindful of that.
Aled: Yeah.
Lee Jay: Two, I think what it does is it makes us self oriented. And if we are focused on us, it could be we’ve stopped reading what is in front of us and them. They are giving us cues all the time about what they want, and what they need to move forward. And if we’re thinking, “Oh my gosh, what have I done wrong? How did I let this happen?” We’ve sort of blacked out the screen before our eyes, and we’ve looked inwardly instead. And it is at that very moment that we most need to be looking at them, and asking them.
You spoke before we got on the air about transparency, and I think it is one of the most important tools a mediator has. We sometimes I think in this way of being self oriented we sometimes think well I have to think to myself what I should do next, and then do it because that’s what they expect because I’m the professional. In fact it is in those moments that I look at them and say I’m not really sure what I should do next.
Just last night we had a mediation you may be able to tell by the-you asked earlier in the introduction, when do I sleep? I had a mediation that got me home at 4:00 this morning which we’ll also talk about later. But during that mediation I had a moment at about 7:00 in the evening where I was starting to wonder what to do next. And I was sitting in this little cafe area in our office with one, probably the primary driving defense lawyer who is contributing the most money from her insurance company to the settlement, it was that kind of a negotiation. And the plaintiff’s lawyer came back to get a cup of coffee.
So I said, “Come join us, pull up a chair.” Because they knew each other and were friendly. And I looked at them and said what do you think are we going to get there? I’ve never asked a lawyer that I can remember that question in my life before. But it just in reading the situation I knew they needed some assurance, and in that moment, I think I did too. And he looked very confidently at me in front of her and said, “Oh yeah,” and I thought oh good. And it gave me permission to continue in pursuit of that.
So it is little things like that that are just moments of transparency where we let them see what we are thinking, or we open up our insecurities if you will that sometimes create the breakthrough that we need to get [inaudible 00:14:47]. And sure enough six and a half hours later we settled that case.
Aled: For me transparency is a core value, and being able to say what is going on in our mind. Transparency and compassion because I think transparency without compassion, you can say all kinds of things that could cause offense. But how do we translate what is going on in our minds and say the unsayable, and tune out of the frequencies and the interferences, and ego and all of that sort of stuff. And just being able to say, “Look I think I’m feeling stuck here I think you guys are stuck as well what is your impression of where you are?”
Lee Jay: Fantastic, I love that. And what I tend to do, again in a civil setting most of the folks I am working with are represented by counsel who are often driving the negotiations. So what I tend to do is with permission bring the lawyers together in my office around a little round table, and ask that very question. And I think a mediator’s perception of their own success, or a mediator’s perception of other’s perception of that mediator’s success coupled with the rates that we charge as we become more and more successful. All of those things as you’ve hinted at create boundaries to that transparency because it creates this mystique that says I’m supposed to be the superstar guy with the answers here. And it makes it harder for us to show some vulnerability.
But it makes it more important for us too because once we do then they say wow even this mediator who has got this great reputation or we’re paying all of this money, or something in the commercial world has a moment where they are stumped. We must really be working him hard, and then they’ll jump in to help. And now you’ve got them working with you instead of against you. And it can turn the whole thing on a dime right there just for that little bit of transparency, vulnerability, and as you said, compassion.
Aled: Very interesting I had a thought, but it’s gone now. It’ll come back to me no doubt. So…
Lee Jay: Nothing else.
Aled: So what is it we can do then as mediators from the go get as you say right? That’s an American-ism right?
Lee Jay: The get-go actually.
Aled: The get-go.
Lee Jay: I don’t know where it comes from.
Aled: From the get-go what can we do to avoid ending up, or reduce the likelihood of us ending up in those sorts of situations. Where can we start being more effective Lee Jay?
Lee Jay: So the first thing I would say is that we’ve got to do is look at our process when we’re not in the process. That is one of the things that mediator’s tend to to involuntarily when we’re laying in bed at night tossing and turning over a case that didn’t resolve or something. But what I said before, stopping in the middle of the process and becoming self oriented is dangerous. Stopping outside of the process to really examine our process, and consider shaking it up, and reinventing it a little bit, and thinking differently about how we enter into it. That I think is the most important thing that a mediator can do is that introspection, and that thinking in a new way about the process.
So the word we’ve been dancing around is impasse. The article impasse is a fallacy that I wrote, and that you spoke about off air. It is written to say time out mediators let’s take a look at what we do let’s take a look at the dialogue that we have when we’re sitting in rooms together at conferences, and workshops, and things. And let’s assume for the moment that we can’t change the behavior of anybody else in that room but our own.
We know we hate that moment that moment where we think, “Oh my gosh this isn’t going to settle the parties are digging their heels in. What could we have done 12 hours before, three weeks before, three month before if we have the opportunity to have set everything differently so that that moment wouldn’t happen.”
So like most of us learn from the mistakes that we make. You mentioned early on I’ve done 1,700 mediations or something it is the ones that didn’t resolve, or that almost didn’t resolve that I go back and dissect and learn from. So for example there are things that I’ve changed heavily in the way in which I convene a case before people have come to the table. To set them up for a certain kind of readiness before they walk in the room. Because I found when I would do those things in advance I wouldn’t have that difficult moment for those reasons. I’d have them for other reasons, and then I had to say, “Okay, what’s causing those?” And then I would change the way I introduce the process at the top of the morning, and manage their expectations, and reorient them. And that would change the way that moment at 3:00 in the afternoon went the next time.
So I kept looking upstream at the earlier parts of our process, and all the way through to the end with the negotiation and so on to say what could I have done-taking responsibility for it? What could I have done earlier, or differently that might have changed where we sit right now at that difficult moment at 3:00, or whenever that is. And that article and the thoughts in there were born from the reshaping of my practice from looking at all of the mistakes that I made at all the difficult moments I hit, and trying to prevent them in advance, trying to be proactive.
Aled: I’m getting very excited now. Well, let me tell you why. Because I’ve done a couple of interviews recently where my interviewees are talking about how they are adapting the process. How they no longer create the expectation that things will be concluded in business hours. So by 5:00 p.m. you’ll either reach an agreement or you won’t, and if you haven’t by then, we can do a few extra hours. It is almost like changing the paradigm…
Lee Jay: It is.
Aled: . . . and thinking about hold on, what is the best way given the context can I be helpful to these parties? I had a call today about a mediation, and I called myself actually when they sad well how does it work, and I said well I would speak to the parties beforehand just to get a little bit of background. Then I’d probably schedule a face to face with them, and then we’ll meet, and then I thought well that’s one way of doing it.
Lee Jay: Good.
Aled: But of course after speaking to them I might discover that actually that is not going to be helpful. So I can’t say right now until I speak to them. And it was having those moments. You are talking about reflecting on the process, and being really transparent. I was like yeah that could be one way, and there are many other ways.
I interviewed Liz Birch  recently who she conducts some of her mediations by Skype, then another she’ll go and fly to one side of the world to meet one party just for a private meeting. And then get on the phone for another and do a conference call over a period of a couple of weeks, or three weeks, or three months, and setting the expectation. You said it then setting the expectation that there is a really good chance you can reach a conclusion. How long that will take, and how much energy and effort it will take is down to you the party.
Lee Jay: Exactly. So now that introduction that you’re doing in the convening phone call. Rather than saying this is how I do it which is a phrase that makes me shutter when I hear mediators say it. Instead what I’m hearing is you’re saying the mediation process is rather organic, and responds to your needs, and everyone is different. And that’s where my skill and ability comes in. You all will do most of the work during the mediation, but hearing what you’re telling me through these phone calls, and when we meet that morning perhaps we’re going to design a process that fits your needs and is going to work best for you. That gives people so much more comfort if that flexibility and having a hand in it is important to them.
Other folks may want to be taken care of, and know that they are dance steps it is a waltz or a minuouette it’s not a freestyle dance, and they may be made uncomfortable by that. So we have to be aware of that, and find our bAledce in between there. But understanding that there is a way that you’ve been describing it that doesn’t necessarily fit all cases. That is a beautiful epiphany that is a great aha moment I think.
Aled: Yeah, no, it was which is why I’m so glad that you’re talking about reflecting on the process. I think mediator’s I’d imagine would reflect on cases that haven’t been successful whatever that’s however that’s defined. Now whether they reflect on could I have done something differently from the beginning? Or could I have almost like getting in a helicopter and hovering up, and looking at the landscape…
Lee Jay: Yes, exactly right.
to see…
Lee Jay: It’s getting outside of the box it is thinking outside of the process, and it is changing our perspective. It won’t one of my favorite expressions that the Chinese say if you don’t like the view take one step back. And if you actually physically do it it really does change the entire perspective of the room. I think if we can do that before and during our process we get that perspective from the helicopter. And we see oh my gosh, they are marching here and here, but they are not where I thought they were I’ve got to go back and find out that sort of thing those things really help us as mediators.
And frankly, I think that’s what they are really bringing us in for is they have their own perspectives. So ours isn’t necessarily attached to their and see it through their eyes, so that’s helpful. Ours, I think is to bring a fresh new perspective. So in order to do that I think we have to keep ourselves fresh and new, and keep reinventing and stay on top of thinking about what we’re doing.
Aled: So reflecting on the process, and designing a process that meets the needs of the parties. Not a process that we learnt on a six-day mediation training workshop ten years ago.
Lee Jay: Or one that makes the mediator comfortable. We haven’t talked much about a joint session versus independent caucuses, or whatever we’re calling them. I think mediator’s use those tools and that structure in a way that makes them comfortable. If they are conflict averse, or if they like to watch the drama, they are going to lean toward caucus or joint session more. So which means again that they are being self-oriented, they are looking into themselves, and what makes them feel right. Rather than looking at the parties, and the discussion seeing what they need.
I’m a big believer that sometimes you have to let things get a little bit out of control before you can put them all back together, so that you know what is really going on. If you take everything as it is presented on its face value and on the surface, I think we get trapped 4:00 or 5:00 in the afternoon when we think we are getting very close to a resolution. And then something explodes because we didn’t explore it at 9:00 that morning when we should have.
Aled: Okay, I think we’ll get onto it shortly things getting out of hand. Because I think what you’re saying, Lee Jay, chimes with me a lot because, again, transparency there have been times when actually if I’m honest, the right thing to do would have been to keep the parties together, but my level of discomfort and uncertainty was so high I called a private meeting.
Lee Jay: So that was probably the right decision at that moment because if you were feeling that. If you were feeling uncertain about your ability to guide them through those rough waters while they are all in the same room, it was probably a better choice to put them in separate rooms so that you had more control. Because you’ve still got to be their guide, you still have to . . .
I like the white water river rafting metaphor where we all get in the raft in the morning. And the two admonishments that give you are when you hit the white water you have to hold on tight don’t get bounced out of the raft, and you have to trust your guide. And so I make that analogy with them sometimes to remind them I’m the guide I’ve done this river 100, 200, 500 times I know it well. I even tell them sometimes there is going to come a time a 1:30, 2:00 in the afternoon or something where you start to feel like we’re not going to get where we need to go today.
Or you start to feel like your attorney isn’t fighting the hard fight for you like you want them to. In that moment you’ve got to trust them because they’ve been through this process before too, and they know what works for you. Don’t second guess them, and let your emotions try to drive them. Trust that they know what they are doing and that they are looking out for your interests to help you get where you need to get to get through the rough waters.
And I warn them in advance of that, which is one of the things that came from looking at impasse, and saying why do we keep having this trouble at certain times in the afternoon, or at certain points in the negotiation. And I developed that as a story of when I could sense and feel when that was going on, I’ll use that story.
Not in every case because then it becomes trite right this is how I do it thing. But instead when it looks to me like they are really uncomfortable, or they are highly stressed out, or I’ve heard in my conference call with them in advance that there is a lot of acrimony. I’ll warn them that it’s not going to be an easy ride, but if they hang in there we’ll get them where they want to go.
And sometimes that management of their expectations allows me to call on that it anchors them to it, and allows me to call on that in that time in the afternoon. I’ll say remember this morning we talked about those difficult moments here we are this is it trust me. And now they are back in the raft with me and we are moving forward.
Aled: Beautiful metaphors, I mean I love metaphors. I think metaphors are very powerful. Sometimes I mix my metaphors, and I end up in all sorts of problems.
Lee Jay: Yes.
Aled: But I think people get the gist of it. It is a wonderful way of expressing one’s self. And also I like what you’re advocating around every conversation with a party at the start of every mediation should be authentic, and if it needs to be, different. I think having a structure having a framework is helpful just to make sure that you cover what you need to cover.
But I think so many mediators learn verbatim a script to kick off the mediation. And again, I think it gets in the way of their authenticity coming into the room. And yeah, I don’t know it…
Lee Jay: So one of the things you’re going to see in our discussions about this process. I look at everything not as a good or bad thing, but containing both good and bad elements. It is just how my mind is shaped to work. So I look at for example the introduction having one that is, I don’t want to say rote, but that is scripted and repeated every morning. The down side of that you’ve pointed out. It can feel like it is inauthentic it can feel like the mediator is detached, or like the mediator isn’t personalizing it for the people in the room.
The advantage though to having one like that if you deliver it well, and it doesn’t sound like blah blah blah blah blah blah, right. If you deliver it well, and you’re focused while you are delivering it on the people around the table, it allows your mind not to have to be thinking about, “Oh what do I say next here? I should talk about confidentiality, or where the restrooms are,” right.
If it comes out in the same way every morning you can be using that mind power to be looking around the table and reading their body language, and watching their eye contact. When you’re getting in neurolinguistic programming you’re starting to watch their eye movements. And you’re starting to want to prime them neuroscientifically with thoughts and ideas that will come up later in the day for them. And you are certainly trying to manage their expectations.
So the words can be the same but it gives us the time to survey the room, and be reading it and gathering an awful lot of information. Especially if it is in a joint session in terms of how they are interacting with one another. And so there is a good side and a bad side to having that kind of an introduction. Of course, custom tailoring it really makes them feel like you are just talking to them, and that sometimes is much more important too.
Aled: Actually, as you were talking now it’s making me think, pretty much most of the introductions that I make. I mean, my opening speech for the interview’s it’s all the same, and actually I find that really helpful. I can say it, and mean it, and be authentic doing it, but it just means this one thing that I don’t have to think about.
Lee Jay: Exactly. And during that time during that introduction in the beginning there are certain things that I think are really important for them to hear. And it is not, “Don’t interrupt each other, and here’s where the bathrooms are.” But we’ve talked about how I have attorney’s in most of my in almost all of my cases. I gave you earlier the admonishment that I gave them about following their own attorney when they feel like they want their attorney to be acting differently.
I do it also with opposing counsel. I let them know that today is a process where they are going to see a kinder, gentler side of the attorneys on the other side of the table. And that they shouldn’t mistake that kindness for weakness. That instead they ought to recognize that that attorney, if it is their deposition, or if they are on the witness stand or something, that attorney is perfectly capable of cutting them to ribbons, and being as adversarial as they can imagine. But they won’t see that today because they know, those attorneys know, that for today’s purposes they are going to put on that kinder gentler face, and work with them more collaboratively.
So the admonishment not to mistake that kindness for weakness takes the attorneys off the hook. And allows them not to have saber rattle, and threaten, and do the whole drama dog and pony show for their clients, and for the other people. It takes a lot of the puffery out of it and lets them know, “Okay this guy, or this woman they can be mean when they need to. Now today they don’t have to be mean to show you that they can because I just said that for them.”
So it’s that part of the introduction that I think helps shape the tone, and manage their expectations about the day. And at the same time we’re talking to the lawyers about what my expectation is, and how it is okay to be here today. And I think that a lot of attorneys have said to me that makes them feel like they can relax at that point. Like they don’t have to show the other side how big, and bad, and mean they can be, and show their teeth and all that sort of thing.
So the introduction I think gives us the opportunity to reshape the paradigm, as you said earlier, in a way that they might not be expecting that certainly helps us later in the day.
Aled: It’s almost giving that permission for them to show that compassionate the compassion that they have within them.
Lee Jay: Exactly.
Aled: But also implied is that these are my expectations about how you’ll behave. It is quite subtle, but it is I think it accomplishes a number of different things, right? It’s lovely.
Lee Jay: It does it does indeed.
Aled: Fantastic all right so we talked about how we can prepare differently examined the process, designing the process that meets the needs of the parties, how in our introduction we can say things, do things to set expectations to sort of anchor future states so that come 1:30 when they are feeling low energy, frustrated. “Remember earlier one when I mentioned you would be . . .” This is almost like normalizing it, isn’t it?
Lee Jay: It is.
Aled: It is perfectly normal to be feeling the way you are feeling. Hundreds, thousands of other people have felt the same.
Lee Jay: Exactly right. And frankly, I do it at the beginning I do it as you just did in the middle, and last night we did it at the end. I had a plaintiff who had walked in with much larger expectations, realistic expectations that were much larger than the settlement at the end of the day. And I said to he and his wife, I have to tell you you’re to be congratulated because at that point we reached an agreement.
I said, “I think the mediation process is the most difficult way to resolve a dispute because if you think about it, you walk in the morning, you set out your position, you tell them how much you want, or what you want, or what you expect or demand or whatever. And you spend the entire rest of the process the day, the afternoon, session after session after session stepping back from that original position. And giving up more, and giving up more it is a compromise kind of a negotiation.”
And I said, “There is no other process in the legal system or in any social justice system where you have to do that except this one. But I do believe that the best results come out of this process, and that you got a result here that is better than what you would have gotten in one of those other processes, litigation, or arbitration,” or wherever they were headed.
So acknowledging as you said, and normalizing, and being transparent about this isn’t easy and I understand that. Even though I do this every day as a professional, I know what you went through today I feel the exhaustion that you’re feeling from having staked out your position. And giving it up all the rest of the day makes them feel the compassion, and the empathy. It normalizes it as you’ve said, and it rewards them-I’m sorry. It rewards them for having accomplished what they accomplished. It acknowledges and appreciates them for that. And that’s something that nobody else is really going to do.
They are going to go home and their family is going to say you took how much, or you paid how much, or whatever the situation is. And they are going to be second guessed, so it’s nice to have somebody anchor them back to where we started in the morning by saying this may be a difficult ride, but we’re going get you to a better place.
Aled: Yes, again, I think so many mediators could be more effective by doing something like that. So you’ve got the agreement, and everyone is sort of celebrating, and you as a mediator are chalking it up, and in that moment, miss an opportunity to really say something. Do something really powerful and significant that might sort of mark the moment for them that could mean in the future they remember that and think you know what I’m going to give Lee Jay a call, rather than give my lawyer a call because I think this is a better way to do it.
Lee Jay: Perhaps, yeah, it’s interesting that he said to me I hope that I don’t have any other entanglements like this where I would need you again. But I’d feel very comfortable coming back to you, and frankly, I hope he comes back with his lawyer in that case because the lawyer played a very important role.
You and I talked before about how we got on certain divides in mediator style, and process and philosophy, and belief system, and hardly held beliefs about what this process should be and shouldn’t be. One of those dichotomies is lawyers in the process versus not in the process. And the purists in our world who come from a facilitative model can say gosh the lawyers just get in the way because the clients are the ones who have the underlying issues that I want to help them get to.
And I think the danger in that is missing what the lawyers can bring to the table. This particular gentleman had an attorney who worked without going into much detail, he and his wife I mentioned had a significant construction defect issue on the home that they owned. He and his wife had separated two and a half years before, were in the process of a nasty divorce, and a child custody battle, and had to come together and sit in the same room yesterday for 11 and a half hours while we worked out this business dispute of theirs with the developers, and the contractors who built the house, and did the landscaping, and the soils work and all of that.
And this lawyer kept the peace between this bitterly divorcing husband and wife for an entire day an entire night. He was invaluable to this process without him we would not have reached a resolution. Because I couldn’t have been in that room all day to keep them from flaring up under the pressure of the mediation and letting it manifest itself in the divorce that they are going through.
That lawyer guided them with legal advice, and kept their heads calm, and managed their expectations, but most of all, he kept them able to sit in the same room for almost 12 hours, and not chew each other’s heads off. So to me that lawyer was an invaluable part of that process to me, and did more than I could have possibly done because I was in four other rooms in addition to theirs throughout the day, so I didn’t spend a lot of time with them. So I think we have to be mindful of judging good and bad when it comes to what is good and bad for our process because as you said earlier on a different day it could be a different answer.
Aled: Yeah, I mean what a story, and what an endorsement for lawyers in mediation.
Lee Jay: It’s true and again, it’s not something that I feel is the best thing 100% of the time. I have some lawyers who worked with me several times before who trust me and know me, and they will send me their clients, and say, “Lee Jay it’s a small dispute. They can’t pay me to sit there with them all day. I trust you I’m just going to send them to you to work this out.”
And that’s the highest praise I think, but it makes me a little bit nervous too because I know if that lawyer were in the room, and in this case he has a better relationship with those folks it could be helpful. So I don’t have an opinion about whether it’s a good or bad thing I just use the best that they bring into the room.
Aled: Yes absolutely. Okay, all right, so what do we do when we encounter a situation where the parties are stuck? And we’ve talked about strategy I guess and that’s to be transparent. Is there anything else as mediators that we should be thinking of, we could try, we could do when we encounter those situations.
Lee Jay: Only a thousand or two other things it really depends on the situation. For example, if you’re having a negotiation, and it’s just about the money, and it’s going back and forth. And they are still very far apart, and they are getting frustrated, and it looks like they are starting to do and say the things we’ve all seen a hundred or however many times where they start to pack up their briefcases and pretend like they are going to leave. Or they say if they don’t do this on their next move, then we’re out of here and all of that kind of ultimatum sort of language.
When we hear that, we have several choices. One is to sit back and get in that helicopter you talked about, and take it up to 5,000 feet and look down at the dispute with them. And give them a fresh perspective that says let’s look at this dispute in the context of your whole life. Let’s look at your whole life. You get up in the morning you go to work you come home you have your children you have your family whatever their life is shaped like. Help me understand how this dispute fits into that world, and they’ll tell you it is really an unwelcome piece. It is a piece I wish wasn’t part of that picture you just painted.
And that can remind them about the value of disposing of that piece if that is how they are looking at it, or resolving it, or making peace with this other person, or whatever the context is of that mediation. That’s getting away from it to give them perspective. The other way is to get in closer to it, and to say, “You seem really frustrated.” And have them say, “Yeah, I’m frustrated.” And you can say, “Well what about this is so frustrating for you.” And they’ll say, “Well, the other side is just not offering up enough money, or not willing to do the things I need them to do,” or whatever.
Then you can ask them the third question which is, “But specifically, what is it about them doing that that frustrates you so much?” And that is kind of the turning inward because that is the point where they say to us at that point “I’ve put up with this from her for four years, or she’s been the worst business partner.” And I say but what about that specifically is so frustrating to you that is when they will say, “I’m just mad at myself. I should have made a better choice for a business partner. I knew four years ago I was going to end up in this setting, and sure enough here I am. I am mad at myself.” And then I’ll say to them, “So what is it helping for you to be mad at yourself. And they’ll say it’s not it is just I just want this to be over.” And now if they are talking about getting it over that is very different than a minute and a half before where they were talking about walking out the door if the other side didn’t do X, Y, or Z in this next round of discussions or whatever.
The other thing is that I’ve heard you allude to earlier here which is to say very transparently, “Well gosh what would make it better what would you like to see happen. If you were conducting this mediation what would you do next? What would you like to have on the table for discussion next?” “Well they’ll say we’re not even talking about X, and X is the biggest thing that I’m frustrated about.” I’ll say, “Well I’m glad you brought that up let’s talk about X, what’s yours?” And now we’ve just taken a turn into a new direction that gives them that fresh reinvigorated spirit to want to keep working toward resolving it.
So that is sort of three different examples of pulling away, coming in closer, and even inside of them for the second one. And the third one is just let’s just change direction and go a different way, and that refreshes it. So we have all of these choices available to us if we remember that we have to bring that fresh perspective.
Aled: Brilliant. I mean I love the burrowing in strategy.
Lee Jay: I thought you might.
Aled: I mean really and I think it is certainly a lesson to me to stay curious about what is at the heart of their resistance, their concern. What concerns them most about this, or not getting this, and…
Lee Jay: You said it it’s staying curious. That is what it is all about.
Aled: It is fantastic. Look, I mean we’ve covered a lot already, and I still want to get onto the major piece.

About the mediator

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Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator