As published in The Chicago Daily Law Bulletin
Recently, a group of business executives in Milwaukee asked me to present on "what is a mediation." Normally, I give this type of talk to lawyers and insurers who have familiarity with what mediators do. We talk about what makes a mediation effective.
Recently, a group of business executives in Milwaukee asked me to present on "what is a mediation." Normally, I give this type of talk to lawyers and insurers who have familiarity with what mediators do. We talk about what makes a mediation effective.
I thought I would give this group of non-lawyers a simple example and help them work through it to figure out for themselves what mediation is:
Let’s say you have a friend in Chicago—a single mom with a very irregular schedule. What does she do? They said, she's a real estate broker. (They made up the details as we went along) You're coming into the city anyway and, because she's so busy, you text her to see if you can stop by. She says yes. As you drive up, eager to see your friend, she's running out of the house, completely discombobulated, and she says, "You deal with them!"
"Them" would be Jane, a headstrong eighth grader, and John, a star sixth-grade jock. You've known them their whole lives. You find them in opposite corners of the living room, wailing and crying their eyes out.
Apparently, after years of pleading, mom agreed to go with them to "just look" at a dog. Of course, after solemnly promising they would take perfect care of Snoopy and Mom wouldn’t have to lift a finger, looking turned into getting.
That lasted all of three months. Since then there has been non-stop fighting over who has to care for Snoopy. Jane has pom-poms and likes to hang out with her friends. John has football practice and games. They both like to sleep late. Mom ends up having to leave appointments and run home. Finally, she says, Snoopy must go.
What do you do?
The group began to consider where to begin. Through trial and error, here's what we came up with—which closely tracks how I approach most mediations.
Step 1. Mandate. You have to ask them what they want you to do. Do they want you to try to help? You can't just plunge in and start interrogating. If they want you, ask why? Why me and why now? Let them articulate what they want you to do and why. Getting that firmly out in the open will set the stage for what follows. In our professional mediations, this is usually done by an administrator before the mediator ever sees the case. It's easy to forget the mandate and forget that the process is completely voluntary.
Step 2. Process. Before digging in, there has to be discussion and agreement as to how we're going to tackle the problem. How long do we have? When does mom get home? Do we have to finish before she gets back? If we can get a deal, how are we going to memorialize it? Will there be a document? What are we going to tell mom? Are we all going to talk together or should each talk separately to you? Who will go first? Not only does establishing process save endless problems as you go along, it also gets everyone focused on problem solving.
Step 3. Active listening. Meeting with each kid separately, you will listen to what they say. This is really difficult. You think you know where everything is going. Your mind is racing ahead.
You're thinking of your own more important issues. But in this part, you have to be 1000% focused on hearing them out, purely listening. Minimal interrupting. Asking questions.
Of course it isn't just about Snoopy. It's also about how mom can't come to John’s games. How Jane makes fun of him to her friends. There is lots going on. But this isn't therapy and it's not about extensive venting. You have to keep them focused on the problem and anything that might be necessary to the problem. Your specific mission is to help them solve this one problem.
In addition to listening and collecting relevant data, in this step you have to prove you understand the problem as they see it by restating it back to them. They have to know positively that you absolutely get it. As you listen, you'll get big clues to what they really want and what it's going to take to get a deal.
Step 4. Narrowing. After you have met with each kid and collected all relevant data, and after you have proven to each of them that you understand their side of the problem, now, finally, you're ready to take a more active role. This is where patience pays off. If you say, "Your problem is simple. Jane, you have to do this and John you have to do that," you have a ninety percent chance of striking out. You also have a big chance of going from a trusted advisor to a meddling old coot.
Asking always works better than telling. The goal here is to find all of the many points of agreement and work your way down to the smallest possible point in dispute. John definitely loves Snoopy and wants to keep him. He probably recognizes that even his horrible sister also loves the dog. He understands mom is trying the best she can. He agrees that it isn't fair to mom to make her do all the work. He understands that mom needs to do her job to support them and that she cannot be running home to take care of the dog. And she is a pretty good mom, after all. She did take him and his friends to the monster truck rally at Rosemont. She did buy him Play Station 96. After all, they did promise her they would take care of Snoopy.
So, is the problem more about the mornings? Is it more about the evenings? Is it about the months during football practice? Does he always need to sleep late? Where is the real conflict?
In our group discussion, we postulated that mornings were pretty solvable, but evenings during football season were the essence of the problem, and both kids pretty much agreed. And that issue was getting home for the 3:00 PM dog walk.
Since Snoopy was growing, the problem would likely just last this next season. After that, Snoopy could wait longer for his evening walk. Narrowing the whole Snoopy problem down to one last season of football makes an insolvable problem very solvable.
Step 6. All possible solutions. At this point, our group decided we would bring our imaginary kids together into one room to congratulate them on the great progress they had made, to let them know we were proud of how they were working to find a solution to this problem and how close they were to solving it. Each agreed. The mood had definitely changed in our little story. Now the kids saw a solvable problem.
So we asked them together to simply throw out all possible solutions to the problem of walking Snoopy around 3:00 for this last season of football, after which Snoopy could wait longer. Lots of ideas were floated including hiring a dog walker or asking a friend to help occasionally, asking coach to be able to come a few minutes late two days a week, and lots of other creative ideas.
Step 7. Deal. I explained to the group that in our mediations, we usually spend most of our time formulating proposals and communicating the proposals back and forth. In this story, that wasn't needed but it might have been. In another example, each team may have had multiple proposals to each other. We talked about the role of the mediator in helping each side formulate each offer and demand and in helping the recipient understand it and respond. Helping them understand their choices and alternatives.
In our story, the kids came to a deal with a scheduling agreement.
Step 8. Commitment. The kids decided to put their scheduling agreement in writing. They actually made a cool chart in colorful pictures showing who did what and when. The chart was posted on the refrigerator. They also talked about contingencies for when someone was sick or had an emergency or special occasion. They made a beautiful card for mom, thanking her for everything she had done and especially for Snoopy. Finally, they decided to tell mom that there would be a consequence to either kid for missing a shift and they asked mom to help them enforce their deal. Snoopy's tail was wagging. Happy ending.
But it may not have worked that way—and in real-life mediations, often there is not such a satisfying resolution. At the end of the day, the kids may have decided their life activities were more important to them than Snoopy. That was 100% their decision and the mediator has to recognize it is the parties' decision, not theirs. The parties have a choice; they make their choice; and they take the consequences.
When I tell people I'm a mediator, they usually have no idea what that means. Yet everyone mediates and has experiences, good and bad, with big and little mediations in their normal lives. What’s fun is to try to puzzle through and analyze the steps you use, in the everyday mediations you encounter.
What do you do, to make these mediations work?
Let’s say you have a friend in Chicago—a single mom with a very irregular schedule. What does she do? They said, she's a real estate broker. (They made up the details as we went along) You're coming into the city anyway and, because she's so busy, you text her to see if you can stop by. She says yes. As you drive up, eager to see your friend, she's running out of the house, completely discombobulated, and she says, "You deal with them!"
"Them" would be Jane, a headstrong eighth grader, and John, a star sixth-grade jock. You've known them their whole lives. You find them in opposite corners of the living room, wailing and crying their eyes out.
Apparently, after years of pleading, mom agreed to go with them to "just look" at a dog. Of course, after solemnly promising they would take perfect care of Snoopy and Mom wouldn’t have to lift a finger, looking turned into getting.
That lasted all of three months. Since then there has been non-stop fighting over who has to care for Snoopy. Jane has pom-poms and likes to hang out with her friends. John has football practice and games. They both like to sleep late. Mom ends up having to leave appointments and run home. Finally, she says, Snoopy must go.
What do you do?
The group began to consider where to begin. Through trial and error, here's what we came up with—which closely tracks how I approach most mediations.
Step 1. Mandate. You have to ask them what they want you to do. Do they want you to try to help? You can't just plunge in and start interrogating. If they want you, ask why? Why me and why now? Let them articulate what they want you to do and why. Getting that firmly out in the open will set the stage for what follows. In our professional mediations, this is usually done by an administrator before the mediator ever sees the case. It's easy to forget the mandate and forget that the process is completely voluntary.
Step 2. Process. Before digging in, there has to be discussion and agreement as to how we're going to tackle the problem. How long do we have? When does mom get home? Do we have to finish before she gets back? If we can get a deal, how are we going to memorialize it? Will there be a document? What are we going to tell mom? Are we all going to talk together or should each talk separately to you? Who will go first? Not only does establishing process save endless problems as you go along, it also gets everyone focused on problem solving.
Step 3. Active listening. Meeting with each kid separately, you will listen to what they say. This is really difficult. You think you know where everything is going. Your mind is racing ahead.
You're thinking of your own more important issues. But in this part, you have to be 1000% focused on hearing them out, purely listening. Minimal interrupting. Asking questions.
Of course it isn't just about Snoopy. It's also about how mom can't come to John’s games. How Jane makes fun of him to her friends. There is lots going on. But this isn't therapy and it's not about extensive venting. You have to keep them focused on the problem and anything that might be necessary to the problem. Your specific mission is to help them solve this one problem.
In addition to listening and collecting relevant data, in this step you have to prove you understand the problem as they see it by restating it back to them. They have to know positively that you absolutely get it. As you listen, you'll get big clues to what they really want and what it's going to take to get a deal.
Step 4. Narrowing. After you have met with each kid and collected all relevant data, and after you have proven to each of them that you understand their side of the problem, now, finally, you're ready to take a more active role. This is where patience pays off. If you say, "Your problem is simple. Jane, you have to do this and John you have to do that," you have a ninety percent chance of striking out. You also have a big chance of going from a trusted advisor to a meddling old coot.
Asking always works better than telling. The goal here is to find all of the many points of agreement and work your way down to the smallest possible point in dispute. John definitely loves Snoopy and wants to keep him. He probably recognizes that even his horrible sister also loves the dog. He understands mom is trying the best she can. He agrees that it isn't fair to mom to make her do all the work. He understands that mom needs to do her job to support them and that she cannot be running home to take care of the dog. And she is a pretty good mom, after all. She did take him and his friends to the monster truck rally at Rosemont. She did buy him Play Station 96. After all, they did promise her they would take care of Snoopy.
So, is the problem more about the mornings? Is it more about the evenings? Is it about the months during football practice? Does he always need to sleep late? Where is the real conflict?
In our group discussion, we postulated that mornings were pretty solvable, but evenings during football season were the essence of the problem, and both kids pretty much agreed. And that issue was getting home for the 3:00 PM dog walk.
Since Snoopy was growing, the problem would likely just last this next season. After that, Snoopy could wait longer for his evening walk. Narrowing the whole Snoopy problem down to one last season of football makes an insolvable problem very solvable.
Step 6. All possible solutions. At this point, our group decided we would bring our imaginary kids together into one room to congratulate them on the great progress they had made, to let them know we were proud of how they were working to find a solution to this problem and how close they were to solving it. Each agreed. The mood had definitely changed in our little story. Now the kids saw a solvable problem.
So we asked them together to simply throw out all possible solutions to the problem of walking Snoopy around 3:00 for this last season of football, after which Snoopy could wait longer. Lots of ideas were floated including hiring a dog walker or asking a friend to help occasionally, asking coach to be able to come a few minutes late two days a week, and lots of other creative ideas.
Step 7. Deal. I explained to the group that in our mediations, we usually spend most of our time formulating proposals and communicating the proposals back and forth. In this story, that wasn't needed but it might have been. In another example, each team may have had multiple proposals to each other. We talked about the role of the mediator in helping each side formulate each offer and demand and in helping the recipient understand it and respond. Helping them understand their choices and alternatives.
In our story, the kids came to a deal with a scheduling agreement.
Step 8. Commitment. The kids decided to put their scheduling agreement in writing. They actually made a cool chart in colorful pictures showing who did what and when. The chart was posted on the refrigerator. They also talked about contingencies for when someone was sick or had an emergency or special occasion. They made a beautiful card for mom, thanking her for everything she had done and especially for Snoopy. Finally, they decided to tell mom that there would be a consequence to either kid for missing a shift and they asked mom to help them enforce their deal. Snoopy's tail was wagging. Happy ending.
But it may not have worked that way—and in real-life mediations, often there is not such a satisfying resolution. At the end of the day, the kids may have decided their life activities were more important to them than Snoopy. That was 100% their decision and the mediator has to recognize it is the parties' decision, not theirs. The parties have a choice; they make their choice; and they take the consequences.
When I tell people I'm a mediator, they usually have no idea what that means. Yet everyone mediates and has experiences, good and bad, with big and little mediations in their normal lives. What’s fun is to try to puzzle through and analyze the steps you use, in the everyday mediations you encounter.
What do you do, to make these mediations work?