mediatorinthemaking.com

I’ve been away from the blogosphere for a while. It’s great to be back! My days have been filled with lots of home projects, and at least a little bit of lounging by the neighbor’s pool … and a whole lot of work digesting all the I’ve learned through fall and spring trainings, and singular small claims experiences. Which brings me to today’s musings.

Many never get to experience the amazing wonder that is small claims.

As a mediator, I remind myself that I am seeing people at anything but their best. I silently assert that for the most part, these might be very sensible, caring, aware people. And that intractable disputes can have drastic effects on anyone.

“I’m going to have fun with this.”
I’ve been doing some reading about the story-telling phenomena. It seems that from our first step on the ladder of inference, we begin telling ourselves a story of what’s happening. Especially in stressful situations, we can become wholly focused on our story and lose our mindfulness of the moment. We perceive the other as what our narrative has drawn, and cease to objectively observe them or the events. By the time these people get to court, they have wrapped themselves tightly in a story which ends with their vindication. They are here for judgment day. And they are especially disappointed when their judgment day is takes a side route into the mediation room.

“I’m just here for the principle.”
Also wrapped tightly in their own story, the person here for the principle is expecting vindication. A judge will wrap a gavel, point down from on high with a bony finger at the evil doer who has wrought such terror within an innocent life, saying, “You have been very bad. Give this innocent angel here a hug. And five dollars.”

“Is this going to be like Judge Judy?”
This person is well versed in the caricatures of Judge Judy or perhaps the People’s Court, their plaintiffs and defendants. They’ve seen poorly behaved or ill prepared plaintiffs and defendants ripped to shreds by sassy judges. They’ve learned from seemingly effective character assassinations, usually goaded on by said sassy judges.

They might tell the mediator they only agreed to mediation in order to impress the judge. They might enter the mediation room with many documents to show that they will come across as the one who’s got it together. They will likely insert interesting and totally unrelated tidbits about the other parties’ former mates, friends, sleeping habits, and anything else that could possibly spark controversy.

It’s not surprising and not the parties’ fault. In addition to how prolonged conflict can impact even the most mindful person, the whole small claims process seems so disempowering from the beginning. The parties appear bewildered when they enter the courtroom which bears no signage and boasts no person to greet or instruct them, or even confirm they’re in the right room. They wait quietly for what must seem an interminable time until the clerk enters to call the list. A far cry from the sassy powerful t.v. mavens with their impressive robes.

And then rather than judgment day, they get me and my co-mediator in a closet with chairs! Look for a future post on the challenges of ‘selling’ the promise of mediation to such crestfallen – or hostile – small claims parties.

Financial stress is one of the leading causes of conflict in relationships. And our conflicts at home do not stay just at home. They can drive us into new conflicts at work, which we bring home, and so on.

Especially in this troubled economy, good negotiation skills can help us manage stress before it spills out of our wallets and sparks conflict in the most important facets of our lives.

As I sit in the small claims courtroom and here the list of credit cases called, I can’t help but think that there has got to be a better way.

Moshe Cohen has written sound advice at WorkLifeBridge about Using negotiation skills to avoid foreclosure and other calamities.

… regard the situation as a collaborative negotiation whose goal is to solve the problem to best meet everyone’s interests and view the other party as your partner in making this happen.

Be clear about what you can and can’t do, and be conservative in any new commitments you make so you don’t have to have this same conversation with them over and over again. Try to use objective data to persuade the other party that your limits are real, and at the same time, be open to their concerns regarding your commitments. Pay close attention to what they have to say and make sure you understand them. Listen for clues as to what they need in order to keep working with you on renegotiating a deal that works for both of you.

(emphasis added)

Moshe also reminds us to realize that our financial institutions have a vested interest in our success, as they depend on us as much as we on them. This is akin to, though not quite equal to, heavy interdependence. In labor negotiations, this term means “they simply must find some way of getting along with one another.”* While I don’t think the credit companies have reached the point of seeing or accepting heavy interdependence with us regular individuals yet, I believe it might be close. This considering the new package agreed to by the major mortgage companies.

As reported by CreditBloggers and nearly experienced by yours truly, Bank of America is again looking to increase many customers’ rates — seemingly regardless of account status. With that news, it seems that far more of us than expect to might find ourselves in need of these skills.

Oh. And at least until all this blows over, try sticking with cash.

*quote is from Mediation–Its Forms and Functions, Lon L. Fuller, 44 Southern California Law Review 305, 1970-71

This morning, on the treadmill, my wandering eyes found a very exciting flat panel TV showing in very exciting HD a very exciting courtroom drama. You know the kind, with two people airing their private lives before a judgmental judge (yes, I’m aware of the unfortunate but rather fitting language).

A few minutes later, I look up again to find a divorce courtroom drama and I recall an article I read recently saying something like that working with a mediator can cost 1/4 what it would to go to court. Don’t quote me on that as I’m very possibly misquoting. But it is easy to find literature touting the merits of mediation vs. court for a range of disputes, especially divorce.

As I wondered why anyone would choose to air their private lives before a snappy judge and the daytime TV watching world, I had an idea. Maybe conflict is just too exciting for us to avoid.

Can you imagine what would happen if Divorce Court was replaced with The Mediation Room? Would anyone watch two spouses learning to manage conflict and speak to each other constructively thanks to the leadership and facilitation of a mediator?

I recall being amazed to watch a party at (real live) small claims court mimic so deftly the stereotypical People’s Court plaintiff, complete with totally unrelated personal insults, I could’ve believed it was scripted.

Yes, I realize we could easily debate the actual reality of “reality” court TV shows. But I think it is more important that enough people watch these shows to have kept them on the air for possibly decades. Or keep about seven hours of such shows a day on network TV now. (Yes, seven hours at last check of Comcast listings.)

So how do we minimize the allure of the down and dirty conflict? How do we make constructive communication more exciting than petty insults and flailing unkindnesses?

Perhaps it’s the people who like to watch. The people who don’t come to mediation. Perhaps these people are our true clients.

It’s a big day for the Mediator In the Making! Yesterday, I had my first glimpse into small claims mediation. I can’t wait to go back.

I’ve got pages and pages of notes I’d love to share with you all. Instead of publishing my first ebook, I’ll let it all simmer and explore one thing at a time. (No need to thank me. I realize you might have lives away from my blog.)

Perceptions. A heavily weighted word, and quite rightly so.

It seems to me that each mediator is constantly performing an amazing balancing act. We have our own perceptions of the process, the parties, our performance, our co-mediators. Within each of those, we’re building perceptions of appearances, body language, eye contact, tone of voice, and of course the words we’re hearing. We’re gauging - and maybe hearing - our parties’ perceptions of us, the process, and our co-mediator. And we’re hearing and gauging that of our co-mediator.

Just steps away from perceptions, we will find assumptions. Sometimes baby steps. So then we balance ourselves on the cusp of allowing our perceptions to give way to assumptions, which then would have us leading rather than facilitating or following the parties.

My, my, my! We would all make great circus acts, wouldn’t we? Balancing atop that tight rope, music playing, crowd gasping, and any number of additional distractions.

It was exciting to get to practice the process of recognizing and utilizing my perceptions, acknowledging and setting aside any assumptions which I might give way to in weak moments when I allow myself to not be fully present. To acknowledge and brush off, rather than suppress, any assumptions which could then give way to judgments, and allow myself to proceed with a clear mind and neutral perspective.

There’s another amazing characteristic of perceptions in the mediation room. Others’ perceptions might surprise me, or even directly conflict with my own. Yet there they are. And so I must acknowledge and respond to them. Management and customer service conventional wisdom tell us something similar, and useful here. It doesn’t matter if the customer’s perception seems to be reality from where we sit, or fits with what we mean to have them think. Because it is there, we must acknowledge and respond to it. Allow them to know that they have been heard (notice I do not say “feel heard”). In the mediation room, I guess this could be described as incorporating perceptions into the process.

Of course these are all my very early perceptions of this process. They are my foundational building blocks and I can’t wait to get back in there to continue my learning!