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A Versatile Mediator Toolset

A Versatile Mediator Toolset

Have you ever wanted to tell a party in mediation exactly what you think they should do but held back because you felt it wasn’t your place to do so? Besides doing so would have compromised your impartiality and status of neutrality, right? Not so says Lee Jay Berman, who’s got a different take on it. He calls this Heavy Metal Mediation but it comes with a health warning!

This is Part 2 of our interview with Lee Jay. If you want to learn about avoiding impasse in mediation check out the first part here.

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Full Transcript

Davies: Heavy metal mediation.

Lee Jay: Oh yes. Yes, yes, yes. Heavy metal, we do it in several different forms. I’ve done it in day-long workshops. I have done it at conferences with Jeff Kichaven and Michelle Obradovic, mostly Jeff. Jeff came to me with the concept, actually, and we developed it together but it was Jeff’s inspiration to essentially say, ‘Sometimes we have to go against our original teaching and do things that are, what I would call, counter intuitive.’ Much like heavy metal kind of goes against the blues chord structure of blues music that became rock and roll, heavy metal, some might say, butchers it. Others might say turns it up a notch to something they can relate to, that the heavy metal metaphor comes from hitting it hard and not being afraid of what people say.

In the first half of our conversation today, we’ve spoken in a way that was sort of psychological and that was metaphorical and ethereal even. You know where I come from in my heart and soul already in how we do this thing that we do and yet, as we talked about also, if we preclude parts of our universe from what we bring to the mediation room, we’re potentially leaving some of our most important tools and some of the better parts of ourselves outside.

Heavy metal mediation is where mediators are trained, as you mentioned, in a facilitative process. When I’m in heavy metal mode, it’s hard for me to think about facilitative process. But we’re trained in a facilitative process. It’s the doctor’s oath that says, ‘Do no harm’ is one that I think we mediators subscribe to. The notion of going into people’s lives and not bringing our own stuff into that system or that process and not bringing new information to them. If they think they want to make this deal that looks like this and we think, ‘Oh my goodness, that’s not really fair,’ facilitators say we should keep that to ourselves and as long as they’re happy with the deal, that’s okay.

The heavy metal mediator might look at that and say, ‘There’s no way this is going to stand up in court,’ or, ‘There’s no way that if they go and talk to three people today at a dinner party, that those people aren’t going to talk them out of it and that they’re going to want to rescind the deal or something like that.’ So we’re going to step out onto the dangerous edge of things and pull them into a separate room by themselves and say, ‘Are you really sure about this? How were you going to explain this to people when they say, ‘You said that you weren’t going to take less than this in this negotiation, and now you’re taking a third of that. How are you going to explain that to people?’ and challenging them and backing them down a little bit to make them push back.

The heavy metal mediator goes into a room and says, ‘Let me tell you what I think you should do,’ and there are facilitative mediators purists who shudder at that thought. So a heavy metal mediation concept is about saying, ‘Here are a whole host of tools that help you get to resolution, that if you leave them out of your portfolio, you’re just harming yourself. The other thing that it does is it says all of these things that we’ve decided shouldn’t be a part of mediation, in many places, in many mediation markets, and this is oftentimes in the big cities, in litigated cases and things like that, the marketplace has decided the other way.

The marketplace is oftentimes hiring people who are doing exactly these things for them and paying them top dollar and not hiring the brilliantly facilitative, there are some cases – Ken Cloke doesn’t get thought of for, as brilliant and magical as he is, because the parties in that case want somebody who’s going to pound their heads together and go in both rooms and tell them that their fact pattern in their case is terrible. Does that mean that a mediator shouldn’t do those things? I don’t know. I know that that’s not necessarily Ken’s style. I do it differently too but the marketplace has an appetite for this kind of thing.

You’ve heard me use the words ‘settlement’ and ‘settling a case’ earlier in this interview. That word in itself implies compromise. ‘Settlement’, I think, implies a lawsuit and perhaps a monetary resolution, which is very different than a facilitative process that could bring about a win-win solution and a creative solution, the kinds of things that we mediators just lay awake at night dreaming about. But as we talked about earlier, every case needs a different approach and heavy metal is an approach that we’ve come up with that says, ‘Sometimes you’ve got to get a little hard. Sometimes you’ve got to pull the guitar out and rock and roll instead of strumming along and playing a ballad for them.’ It’s about reading the room and being comfortable with one’s self to bring all of those tools in the room because the parties may, in fact, want or expect them.

Aled: The facilitative process, I think, operates from an assumption that if we interfere with the substantive content of the conversation, we contaminate it in some way.

Lee Jay: Right.

Aled: Just a thought.

Lee Jay: Which, by the way, is true and the point of judgment that I would question is whether contaminating it in some way is always bad.

Aled: Indeed. So to what extent is that contamination toxic or is it nourishing?

Lee Jay: Yes, exactly right.

Aled: This is the challenge I have, I think, with sort of the ideological arguments around facilitative mediation versus evaluative mediation. Because I think we can still mediate and stay true to the values of mediation and the principles, informed choice, compassion, and I think transparency’s at the heart of that. So I think in order for what we want as mediators, I think, is for parties to make decisions that they can stand by, that they can live with. So that if they left the mediation and they go and talk to three of their friends and their friends are going, ‘What are you thinking?’ ‘No, no, that’s the best decision for these reasons. I know you think differently but here’s why.’ We want people to be accountable for the decisions that they make, right?

Lee Jay: Well said. Yes.

Aled: So I think in order for people to, true accountability, I believe, only comes when people make informed choices.

Lee Jay: I agree.

Aled: And people can only make informed choices if they have all the information, including unintended consequences. So if we’re talking as mediators, if we want to make an intervention that might, I love some of the express-, first of all, I love the warning, actually, the health warning on your course. ‘This approach is not for the transformative relationship-minded mediators.’ If we make an intervention that some might think is in conflict with the values, I think as long as we’re transparent about the intervention that we’re making, why we’re making that intervention, then the parties are making an informed choice about whether you make it or not, right?

Lee Jay: Exactly. Let me tell you how I look at this. I tend to look at so many things in life as lying along a continuum. I see choice that way and I think if nothing else, we mediators always have choice. So if somebody does something in a negotiation, let’s just use a monetary negotiation for the moment and the parties are $150,000 or pounds or Euros apart, I’m showing my age, if they’re $150,000 apart and one of them moves $1,000, that’s a small, incremental move, and in that moment, the mediator has a choice about how to respond to that move. On a very facilitative approach, a mediator might say, ‘Well, then, okay, so help me understand what message you want them to get from this $1,000 move and let’s talk about what we expect back in return from them and is that the response that we want?’ It could be very facilitative with how we handle that.

Aled: But the mediator isn’t being transparent because the mediator is thinking, ‘What? That’s a joke.’

Lee Jay: Exactly. While the purists would say, and I don’t mean to name call, I’m just trying to divide people so we can talk about them almost in the extreme sense. The purists might say, ‘Well, the mediator is thinking, ‘What a joke,” but that’s not our job. Our job is to help facilitate that negotiation and if they want to move $1,000, that’s their prerogative and let’s figure out what their underlying interest is. All of those things are true and most of us are saying, ‘Are you kidding me?’ So being able to walk, to respond differently to that, a softer approach than, ‘Are you kidding me?’ might be, ‘Well, that’s one way to do it. That’s one way to look at, that’s one option you have.’ That sort of says, ‘Let’s look at some others.’

But the heavy metal option is, ‘Yeah, right. You think I’m really going to walk in there and take $1,000 move? They would shoot me when I walked in. You’re trying to get me killed, aren’t you?’ and have that kind of approach with them that basically says, ‘No way is that going to be the move you make. I hear that you’re frustrated but let’s figure out what move you’re going to make that’s actually going to get this resolved for you’. In a way that’s a little heavier-handed, much more direct and blunt and in some cases, more effective than the very facilitative model in that moment.

I don’t think of mediators as labeling themselves as ‘heavy metal’. I think of mediators as using a heavy metal toolset as part of their pallette of options. Every painting needs some black just like it needs some white.

Aled: What you’re describing there, for me, actually, that would be acceptable for me. That falls within my sort of a reasonable expectation of how a mediator should conduct oneself in service of meeting the needs of the parties, facilitating a productive conversation, rather than, again, pussyfooting around and just going through the motions. When actually what’s going on inside our heads is something completely different. So how do we say what’s, here’s a question for me, how do we say what’s going on in our minds and be really transparent with the parties?

Lee Jay: About how any approach like that serves the needs of the people, it advances their conversation for their benefit and regardless of style, it stays to the core value of what we’re there to do, which is to help them find a resolution of their own making and their own liking. How’s that?

Aled: Yeah. No, absolutely. Are there any aspects of heavy metal mediation that you think would really sort of push the boundaries, might push my boundaries?

Lee Jay: Oh, sure. Oh, yeah. I’ve got one attorney that I work with a lot who, every time I walk into his room, it’s a money negotiation. He represents hospitals, oftentimes, and doctors in malpractice claims and every time I walk into his room, as we’re going back and forth with dollars with the other room, not to say that there aren’t non-economic terms at work, but just focusing on the dollars, he’ll say, ‘Well, Lee Jay, the way that I look at this, our next move could be X or it could be Y. Which do you think I should do?’ He’s testing. He’s the defendant so if I took the higher amount every time, he would say, ‘Oh, Lee Jay’s just trying to get the case settled. He’s not really giving us a sincere answer.’ So sometimes, and first of all, the act of telling him what I think is one that I would think might get under your skin a little bit.

I tell him, if he says, ‘Well, my next move is either $150,000 or $160,000, what do you think we should do?’ I’ll tell him, ‘Sometimes, I think you need to put the $160,000 on the table because I think they need to see more movement from you in order to have the psychological confidence to continue to work with you.’ Or I’ll tell him, ‘No, I think $150,000 is enough this round. I don’t think that going to $160,000 is going to get you any better response from the other side. Keep the other $10,000 in your pocket. Play the $150,000 right now,’ as though we’re playing poker or cards of some sort, ‘and use the $10,000 next time. Your last move was $20,000. They moved $60,000 in response to it. You’ve got three for one on your money. I don’t think you need to put the extra $10,000 out there.’

That’s me responding to him challenging me and testing me to be his coach in negotiation. Now, this brings up a really important point and this may be another one that gets under your skin, and if I succeed at that, I’ll be happy because as you know, and I think as you do too, I like to provoke us to think differently. I like to stretch our imagination a little bit. I think Einstein said, ‘A man’s mind, once stretched, never regains its original form.’

Aled: Indeed, yeah. Keep stretching, keep stretching.

Lee Jay: Okay, I’m not neutral. I’m not impartial. That’s the thing that comes from our basic training that we mediators all think we’re supposed to be. Let me tell you why I’m not and what I find about it. To me, neutral brings two connotations to mind and I don’t like either one of them. Neutral, to me, is a car going vroom, vroom, vroom and not going anywhere because it’s not in gear, it’s not getting any traction with the tires. It’s making a lot of noise but it’s not moving things forward. That’s one perspective of neutral, one connotation, if you will.

Aled: Yep.

Lee Jay: The other is neutered, which to me, connotes un-empowered and unable to bring anything, whether it’s influence or help or advice or coaching to a mediation and I want to be able to do those things. So the idea of being neutral to me, says to me that by definition I shouldn’t be influencing things or bringing too much of myself into the process. As you can tell already, that’s not something I’m comfortable with.

To me, impartial is the act of acting like you’re neutral whether you actually are or not. I don’t think, as human beings, we’re truly neutral. We like some people more than others. Some people get under our skin or remind us of our ex-spouses or in-laws or somebody we don’t like or whatever and we have a human reaction to that, a normal human reaction. I don’t think we’re able to actually be neutral and feel the same toward both people so I don’t pretend to do that.

Impartial, to me, is a step removed from that and is more about treating them the same and acting the same toward them, which has a layer of facade to it, as I think about it. I don’t know that it’s the most effective way to mediate because if you have this multinational, global corporation in one room and the receptionist who was wrongfully terminated, she says, in the other room, from her position with them, the balance of power in those two rooms is vastly different. The risk analysis, the outcome, the value of that marginal $10, £10, is different to each of them.

I don’t think we should treat that the same. I think we have to almost speak a different language in the room with the multinational corporation and I think we’ve got to speak a language they understand, which is risk and exposure and those sorts of things. I think with the woman that we’re talking about who claims to have been wrongfully terminated, I think we have to talk about the big picture of her life and how this fits and what she wants and what her goals and interests are. I think that those are very different discussions and one might take longer than the other, for example. So the notion that being impartial requires me to spend 10 minutes and 10 minutes or 20 minutes and 20 minutes, I don’t buy into that.

In thinking about that, if I’m not neutral and I’m not impartial, what am I as a mediator? Set me off on a course where what I came up with is that what I am in my mediation style as best I can describe it, is I am ‘mutually partial’. What that means to me is when I’m in that room, let’s just use that example, I’m in that room with the former receptionist who was wrongfully terminated because she was a whistleblower, she complained about an unsafe circumstance and they fired her.

In that room, I’m her negotiation coach. I’m giving her perspective and helping her through the process. Even if she’s got an attorney there with her, sometimes I’m helping the two of them together. Sometimes I’m working with the attorneys. Sometimes I’m working just with her. But I’m an advocate in that room for them in trying to help them get the best result they can get for what she needs.

Then I go in the other room and rather than being adversarial and saying, ‘Oh, you’re going to lose,’ and, ‘She’s going to put this on the front page of the paper and it’ll be bad press for you.’ I can threaten them with all of that but that’s what they expect. That’s what they see coming. So instead, I go in there and say, ‘Okay, how are we going to get this resolved? She’s made this kind of a demand. She wants these kinds of things done for her. How do we want to respond to that?’ With first person plural, we, us language, I coach with them and I say, ‘If you do this, she’s liable to do that,’ that, ‘If you do this, she may do that. Which way do you think works better for you?’

So I don’t make the decision for them, most times, almost all the time I don’t make the decision for them, but what I do is take a very heavy coaching hand to move them with that traction and motive power we talked about with the car, move them forward through the process, help them think through their risks, their options, all that sort of thing, and I’m very much a negotiation coach in both rooms. So I’ve come up with ‘mutually partial’ to describe how I do the process because I want them both to get as much of what they came for that day as they can, both economically and non-economically. That’s why being neutral and impartial doesn’t help me get there. How does that sit with you?

Aled: Lee Jay, you disappoint me, my friend.

Lee Jay: Oh, no.

Aled: Your heavy metal mediation should be rebranded ‘soft rock’.

Lee Jay: Oh, no.

Aled: I think what you’re proposing and what you’re suggesting, actually, I think it’s entirely reasonable and I don’t see it to be inconsistent with the values of mediation. The only one thing that jarred me was using the term ‘we’, ‘So how do we want to resolve this?’ I’m kind of, I could get used to that but that wouldn’t come naturally to me.

Lee Jay: It’s a choice, right?

Aled: Yeah.

Lee Jay: So let me try harder. Heavy metal means, I think, being very evaluative with them. Walking in the room and saying, ‘Let me tell you what I think about this case. Let me tell you, I think you’re out of line.’ I had a conversation with an attorney in a case once where he said to me, ‘I have given my insurance adjuster a range that I think this case should settle for. I’ve told her what I think the risk factors are and all of that.’ He pulled me into a separate room with just he and the adjuster, away from the client and away from the other parties, and said, ‘Tell us what you really think.’

The facilitative side of me wanted to say, ‘Well, it’s not about what I think. It’s really about what you think,’ and deflect it in that way. But instead, I said to them, ‘I don’t think you brought enough money today. I think the level of authority that you expected to settle this case for isn’t going to get it done. If you’d asked me beforehand, I’d have told you it wasn’t enough and, frankly, I think you need almost double that much to get this thing done and I think we should call it a day, go get more authority and let’s come back in two weeks and let’s get this thing settled in the range it needs to settle in. So how does that feel to you?’

Aled: Yeah, you’ve just given me both barrels. But, again, I’m thinking to myself, ‘You know what? Actually, that’s being transparent and I think in service of getting a productive conversation going and in service of getting an outcome that is fair maybe.’ I don’t know. Where does fairness come into it?

Lee Jay: What’s really funny is I flinch at the concept of fair because I don’t think there is such a thing. I think it’s what’s fair to them and what’s fair to those folks and what people think is fair. It’s about perspective and perception, I think. The words that I used to flinch at were, ‘I think,’ coming from a mediator because that crosses that evaluative line that you’re then inserting yourself into their process and, I think, risking undermining your credibility.

Now, in this particular case, this was the sixth day of the construction and defect case. We started with 17 parties. We had 15 of them resolved and it was just this one defendant and the plaintiff left in the case. This had gone on over a three-year period. So we had rapport. We had experience. We had a relationship. The only one that was new to the equation was the adjuster. She was shocked to hear me say that but that’s what happened. They went home. They came back another day and they settled it in that exact range I told them that it should settle in.

This isn’t like, ‘I’m brilliant and I know better.’ This is, ‘I’ve spent three years with this case. I know the people in the other room. I know what they’re willing to do. I know what your exposure is. I know what a jury’s liable to do with the 57 issues that your client is going to have to defend and, under the circumstances, this is a range that I think is reasonable based on everything that I’ve seen. But it needed to be delivered in a way that shook them up some because they had a different opinion, a different impression.’ He didn’t invite that and didn’t expect that and I don’t think wanted that from me in that moment.

Normally, the attorneys are asking us, ‘Come on, what do you think? Tell me what you think. You do this all the time. I want to know what you think the value of this case is,’ or something like that. Again, we’re talking in very dollar-oriented, compromise style mediations in these settings. But while he asked my opinion, he really didn’t want my opinion. He really wanted me to echo his and reinforce him with that adjuster. But that wasn’t going to get them out of the case. That wasn’t going to get the case settled. This is a situation where this attorney and this case went on for as long as it did, in part, because I’m convinced, because of the attorney’s self-interest.

I was actually doing his client a service by doing that, by coming at them with both barrels, as you said, to try and shake it up to wake the adjuster up to realize if she wants to get this thing settled, it’s got to approach it a different way. I think it’s borderline but it’s what they needed to hear, I think, in order to help get the case resolved for everybody’s benefit, their’s most of all. I think if we preclude ourselves from doing that, we risk not being as effective.

Aled: You said it earlier. You talked about leaving part of us outside the process, and in doing so, these weren’t your words but I’m paraphrasing there. It’s almost like depriving the parties of all of our skills, our attributes, all of us in the room, if we leave those judgement calls outside, then to what extent are we being authentic.

Lee Jay: That’s true. That’s true. So I think we’ve got to carry this big sort of Santa Claus satchel into the room of all of our tools and then we’ve got to decide which of them are appropriate in a certain situation. As we mediators know, some days end with everybody hugging and crying and apologizing and other days end with people muttering under their breath and storming out of the room because they’ve got to compromise. They went through a difficult process. Hopefully not too many of them end that way but in some settings, in some kinds of cases, that’s the best we’re going to do.

So I think we have to bring the tools that meet the parties’ needs and I think we, as mediators, have a responsibility to those people we’re mediating for to go and build those various skill sets, whether it’s in, you mentioned Ken before, I think everybody should study with Ken. I think every mediator should have a little bit of Ken Cloke in their portfolio. I’m hoping that every mediator should have a little bit of impasse as a fallacy and heavy metal mediation in their portfolio.

You mentioned Erica Fox at the top. Erica, talking to her last night, Erica does amazingly beautifully where she says, ‘We’re these caring, empathetic human beings and we’re these logical, linear and critical thinking minds.’ So often, instead of figuring out how to marry those and walk into the room unified and help other people do that too by our presence and being that way when we walk in the room, if we just bring our brain into the room and leave the human part of ourselves outside of the room, we’re leaving half of our toolset outside, if not more, because we’re leaving the synergy that’s created by joining those together.

We mediators have to do that work, I think, on ourselves so that we can be the most efficient and be prepared when the parties say, ‘Tell her what you think,’ or the parties say, ‘I don’t care what you think. We have to be able to adapt to that.’ You used that word earlier and it’s one of my favorites because I think every mediator has to have an adaptive style rather than an evaluative or facilitative style. We have to be adaptive and skilled in the entire 360 degrees of skills so that we can bring what they need in that moment.

Aled: Yeah, I think that summed it up. Bring what they need in that moment. So if, in that moment, they need a view, and they’re asking for a view, then it’s up to us in that moment to make a choice as to what we do next.

Lee Jay: Yes.

Aled: And I think trusting that we will do the right thing, we will do the right thing in service of the parties, not to ease our own discomfort levels or to satisfy our own ego. But in service of helping the parties reach an outcome that they can live with, they can be happy with, that meets their needs.

Lee Jay: You know, it’s interesting, so many of the things you just said, if we had another whole hour and so many of these things trigger me because when you say, for example, ‘We should go to help the parties meet their needs,’ I agree with that whole-heartedly. I think you can tell that from here. But is there anything wrong with the mediator who’s full of their own ego, who walks in the room and says, ‘I’m going to settle this case because that’s what you’re paying me for and that’s what I do,’ and is all self-oriented, if that helps them get it resolved by leading with that strong hand, I don’t know that that’s a bad thing.

It’s not how I would want to approach it but it works and there are days that I don’t get picked for a case and that mediator does because the people see that that’s what they need in that case, I hope. When they can see an ingredient that they can be happy with, that’s the ultimate goal that we have. As I mentioned, some days, it’s beautiful. Some days, they do hug and cry and apologize and reunite and all of those things. Other days, it’s not just whether they can enjoy. Some days it’s getting an agreement they can swallow and keep down. Where we set that definition of success, really has to come from them.

Some of them will say to us at 9:00 in the morning, ‘I don’t ever want to hear that person’s name again. It needs to end today,’ or, ‘I can’t afford this litigation. We’re out to engage a bunch of experts and do depositions and all of that and I really need it to end today. Others will say, ‘I miss them in my life and I want to see if through this process we can reunite.’ But they have to set that finish line for us and then we have to use our bag of tools to help them get there the best way that we can. That’s how I look at it.

Aled: Lee Jay, first of all, you’ve been incredibly generous with your time so I’m of half a mind there. This has been really enriching for me. I’m full now. I feel like I’ve had a meal and I’ve just eaten a wafer thin mint and that’s all I can squeeze down because I’m just satiated. You are an agitator, a disruptor, and I know I’m paying you a compliment when I say that.

Lee Jay: Thank you, exactly. I do want us to think differently and challenge ourselves and if this kind of a conversation does that, then we’ve accomplished goal. Not everything we talked about here is going to work for everybody but there are pieces I hope people can take from this and add to their repertoire and be more effective doing what we’re doing out there.

Aled: Lee Jay, there’s so many things that I’m certainly going to take away. I’m going to be doing differently as a result of this conversation. I know others will as well and I know others are going to want to reach out and say thank you to you and get in touch with you and find out more about what you’re doing at American Institute of Mediation, AIM. How can they contact you? What’s the best way of reaching out to you?

Lee Jay: E-mail’s the easiest way. Let’s give you my main e-mail. It’s just So is easy.

Aled: OK, so I’ll put that e-mail underneath the video so people can contact you. I’ll also put a link so people can find out more about the courses that you’re running. I’m really hoping that I’m going to get over to LA and we can meet and I can attend your soft rock mediation workshop. But, Lee Jay, let me be the first to thank you for your time and your wisdom and your ideas. It’s been really, really a fabulous interview. Thank you very much.

Lee Jay: Aled, thank you so much. This is so wonderful what you’re doing for the profession, for the field and for those who are just interested in conflict resolution. This is a wonderful thing that you’re doing and I’m just glad that you are and I’m just privileged to have been a part of one of the episodes.

Aled: Brilliant. Thank you very much, Lee Jay.

Lee Jay: Thank you, Aled.

About the mediator

Lee Jay Berman Profile Pic

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