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Heavy Metal Mediation

Heavy Metal Mediation

What do you mean when you talk about a ‘heavy metal’ mediation style?

 

Transcript

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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 Cloak 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.

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