Meditations on Mediations: Looking back on a year of challenging cases

NEWSLETTER EDITION: MARCH 2015

As I write this a few crocuses have poked their heads out of the sodden soil but the forsythia, a harbinger of spring me is not yet in bloom! This winter just doesn’t want to let go !

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This month’s article is a reflection of some of my recent cases and lessons learned.


Last year was a breakthrough year on many fronts for Alternative Resolutions, LLC. We developed new strategic partnerships and grew our client base.   We were fortunate to have the opportunity to handle some interesting and challenging mediation cases. In this blog post I want to summarize a few of these cases, and reflect upon lessons learned. Looking back on my experiences provides a window into the process of mediation: its strategies, difficulties, and benefits. Since mediation is confidential I have altered some facts in the case summaries to protect this private and confidential process.

There were various factors at play that made some cases this year challenging. The disputants’ status and reputation within their organization were an issue in a handful of cases. Post-traumatic stress disorder was a factor in several cases, requiring careful and sensitive management. In some matters parties had equivalent amounts of power, whereas in others one party was responsible to the other, who was a high level manager. As I describe in my post on conflict climate, interpersonal communication is ultimately a collaborative task, and this kind of institutional power imbalance can add an extra layer of complexity to a dialogue.

What are some lessons that can be learned and shared? To reflect appropriately I turned to a book by Michael Lang and Alison Taylor titled The Making of a Mediator: Developing Artistry in Practice. [1] Lang and Taylor pose that “to attain artistry requires three essential elements: practice skills, theoretical knowledge and the ability to make useful and appropriate connections between theory and practice.”[2] Reflection, then, is the process by which practitioners integrate these three elements. It occurs both during the mediation and afterwards, as the practitioner dissects and analyzes the case. The authors then describe that there are six hallmarks of artistry in professional mediation practice: attention to detail, curiosity, exploration and discovery, developing and testing formulations, interpretation, and patience and vision.[3] In the case discussion below I have explored how these benchmarks played a role in my work and in determining the outcomes that were achieved.

Case discussions

Discrimination Discourse

The first case I want to discuss involved an employee who charged that his employer’s decision not to promote him was the result of discrimination on the basis of national origin. In the end the solution was found in a change to the narrative that the employee had developed about his job situation. This 20+-year government veteran with a Ph.D. portrayed a sense of entitlement based on his tenure and his degree. The manager provided very candid feedback to the employee, including direct observations of performance, and feedback that others had expressed related to leadership and teamwork: all relevant factors in candidate selection. It was for these reasons that someone else with fewer academic credentials had been selected for the position. By asking open-ended questions I created an environment that allowed these men to have a difficult conversation. When the manager repeated the same feedback a second time I noticed the employee shift his body posture. He leaned back in his chair and pushed away from the table, as if someone had loosened the valve on his pressurized bravado.  I quietly listened to each of them, asked them to stand in each other’s shoes and didn’t intervene very much. Initially the employee asked for back pay and the desired promotion, and threatened to file a formal lawsuit. Having this facilitated conversation, however, allowed the manager to speak from his heart about his own challenges climbing the career ladder. He shared his own story in a very genuine way, and the employee filing the case was able to see a new perspective. His narrow view of his claim expanded, and the manager became an ally, offering coaching support. As a result the employee withdrew his informal EEO complaint.

Looking at this case in light of Lang and Taylor’s hallmarks of artistry I realized how much the first one – attention to detail – plays a role in facilitating this type of dispute. Discrimination is a serious allegation, and it takes a lot of perception to insure that all the important angles of the situation are being addressed. Attention to detail helped me to watch body language, and pick up on some of the underlying dynamics that were contributing to the problem. By following closely and letting the conversation play out, I was able to discern that the employment discrimination charge masked other underlying interests. As the process progressed this was eventually confirmed. Patience and vision were also key here, as discrimination can understandably be such an inflammatory issue. In the end, these two men found common ground and understanding in the face of a touchy, emotional problem. Looking back at this case reinforced my commitment to continue growing those skills in awareness, patience, and vision, and I’ve gained a valuable experience that I will take with me into future discrimination disputes.

Muddled Misunderstandings

In another matter between a mid-level employee and her direct report, simply having an opportunity to talk openly about the work environment allowed for improved understanding of each other’s needs. They were able to discard flawed assumptions they had made about each other, and replace them with a renewed commitment to work together. These parties had previously blocked out information that contradicted their narrow positional views of each other. Thinking of Taylor and Lang, interpretation and developing formulations played a key role in this case. The fact that the disputants were stuck in their narrow positional views required me to play an active role, formulating careful questions to open up the narrative. Reflecting back, I realize that my long time experience with handling federal employment matters, as well as my prior service within a large agency, likely helped me to intuitively navigate the locked up attitudes and create more breathing room for solutions.

Questioning Assumptions

In a group mediation within a private company I was part of a co-mediation team that reflected the diversity of the parties. Multiple issues surrounding the topics of race, perceptions, role definition, leadership, and self-image were identified in the parties’ positional statements at the beginning of the mediation. My co-mediator made a strategic intervention and took one of the parties into a caucus, working with her to question the assumptions she held about herself and the others. I worked with the other two parties to uncover their previously unspoken concerns. By the afternoon we were able to lead the parties in creative brainstorming and problem solving, with potential solutions to submit to upper management.

With so many moving parts, this case tested my skills in patience and vision, as well as in interpretation and exploration and discovery. It was vital to make space to engage those assumptions and unspoken concerns; giving them insufficient attention would likely have caused them to continue standing in the way, and we may have never reached the successes of the afternoon. This was a scenario where putting theory into practice was absolutely vital.

Divorce is Delicate

A divorcing couple was able to work out many issues before they contacted me, but there were several thorny points that were blocking them from final resolution. When I was able to see and name the problem – competing jealousies – they saw how they shared the problem, and understood how it fueled their resistance to giving up on their respective property claims. Only then could they recognize their common concerns, as well as the fact that they each shared a financial risk, albeit of different textures. Soon thereafter they were able to let go of their competing claims and come to a final agreement.

Again, attention to detail and interpretation were both essential to resolving this. Taking the step to intervene and point out competing jealousies could have been an iffy move if I hadn’t been careful to pick up on the subtleties of the situation. It can be hard to pull the underlying issues into the light, but sometimes it’s needed before common ground can be found. This is where a good facilitator can be key. However, Taylor and Lang’s “hallmarks” have reminded me that careful attention to the preliminary processes of discerning and formulating those underlying issues is more primary to the task of exercising artistry in mediation. I’m glad my intuitions served this case well, and in reflecting I’ve identified an important insight which I will continue to hone in my practice.

Conclusion

Sometimes simply being tenacious and standing for possibilities is what moves parties, who see things with thick myopic glasses as they move towards settlement. Other situations require a lighter touch, taking a backseat to support disputants who need to work things through. Having mediated hundreds of cases with senior level employees and managers, I have developed a perspective that helps me assist parties to realistically evaluate financial demands, timelines and the consequences of failure to settle. Reflecting allows me to make sense of my diverse experiences, learn from them, and go forward with a growing capacity to contribute to my clients’ achievements in resolution. As Lang and Taylor put it, “the artistic mediator responds to the events and circumstances of the moment without losing sight of the objective and purposes of the process.”[4] I strive to do this with every mediation. Thanks for reading, and coming along with me on a process of reflection and learning. As always, your thoughts and comments are welcome!

Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.


[1] Lang, Michael D., and Alison Taylor. The Making of a Mediator: Developing Artistry in Practice. San Francisco: Jossey-Bass, 2000. Print.

[2] Ibid., p. 18.

[3] Ibid., p. 25.

[4] Ibid., p. 34

 

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