"You’re Not Listening. Here’s Why."

Excellent NY Times article about the "unconscious tendency to tune out people you feel close to because you think you already know what they are going to say." Food for thought...!

https://www.nytimes.com/2020/02/11/well/family/listening-relationships-marriage-closeness-communication-bias.html

Conflict Resolution in the Workplace -- Excellent article/interview with Brad Heckman

https://99u.adobe.com/articles/63747/a-world-class-mediator-shares-7-ways-to-de-escalate-your-office-tension

Why Litigate When You Can Mediate? -- Mediation Saves Money, Time & Stress

A condo board with a multimillion-dollar lawsuit, three years of aggravation and ulcers all around.

Everyone wants to feel heard, and, particularly in conflict – when emotions are often inflamed – it’s easy for understanding to be compromised and agreement to seem impossible. Mediation can remedy that. For those in conflict and perhaps contemplating litigation, mediation’s a highly effective alternative to long, drawn-out lawsuits, saving time, money and prolonged stress. It can also help mitigate both business and reputational risk, and even relationships strained by a dispute. With its broad applicability, the benefits of mediation have been long embraced by the NYC and NYS bar associations, by law schools as well as our inundated local, state and federal courts.  

            Co-ops and condos certainly have their share of disputes; conflicts pertaining to leases and deeds, noise and other warranty of habitability issues, property damage, disputes with management or board members and assertions of discrimination are but a sampling. In our notoriously litigious society, the road to the courthouse is often the path of choice. But considering the tremendous legal fees and protracted time it takes even simply to arrive at trial, is it necessarily the best choice? Furthermore, in general, some ninety to ninety-five percent of court cases are settled prior to the actual trial.

Consider the various, publicized lawsuits brought against the co-op board of directors of the renowned Dakota, home to many a celebrity over the years. Writing for The New York Times February 1, 2011, journalists Peter Lattman and Christine Haugheny asserted that whether or not any of the allegations against the Dakota’s board were upheld in court, the accusations were “a potentially embarrassing crack in the facade of one of the world’s most celebrated buildings and fodder for those who feel they have been wronged by that peculiar New York institution, the almighty co-op board.” Though there might be plaintiffs and defendants alike who could have their reasons for wanting the type of publicity generated by conflict, it’s fair to say most do not. Parties to disputes such as the Dakota’s could not only have saved significant time, money and stress by having gone to mediation, both sides also could have avoided unnecessary publicity.

           

            Mediation’s a voluntary, confidential process, in which a trained, impartial third-party – the mediator – helps facilitate a conversation between parties in dispute who have been unable to negotiate a resolution on their own. The beauty of mediation is that it empowers parties to explore creative options for resolution and settle their dispute on their own terms rather than face the uncertain outcome of a court’s decision. While court decisions are generally defined in terms of win-lose, parties in mediation are afforded the opportunity to negotiate a fair and mutually acceptable agreement. Mediation settlements are written up by legal counsel and are binding. By seeking mediation, parties are demonstrating a good faith effort to resolve their dispute; in fact, sitting down at the mediation table is, in and of itself, a step in the right direction. And because of the “ownership” the parties take in the mediation process, the likelihood of their commitment is enhanced.     

            Guided by mediation’s fundamental principles of neutrality and confidentiality, voluntariness and empowerment, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Meeting jointly with both parties, the mediator utilizes various skills and techniques to help break through positional barriers and guide the parties forward to resolution.

As most mediators agree, it’s never just about the money. Whether the parties have their legal counsel present is up to them; however, it is the parties themselves who “own” the mediation process, not the attorneys. Unlike in arbitration, another form of alternative dispute resolution, the mediator acts neither as judge nor decision-maker. A mediator also can help the parties navigate factors such as power asymmetries and cultural differences. As parties move closer to settlement, or perhaps in the event that both parties are found to be obstinately embedded in their positions, a mediator might decide to pause the joint mediation and meet separately with each party.

These separate meetings are known as caucuses and everything said in these meetings is also confidential, unless the mediator’s authorized to share what was discussed. In caucus, mediators frequently act as agents of reality, helping the parties assess risk and the strengths and weaknesses of their case. Because mediation is voluntary, parties can terminate the process at any time. And because mediation is governed by strict confidentiality, mediators cannot even be subpoenaed to testify should mediation be terminated before settlement is reached and a case eventually end up in court.

            Some perhaps might find it incomprehensible to imagine even sitting down at a mediation table with an adversary whose diametrically opposed positions and inflexibility have previously prevented them from resolving their dispute. Not only can mediation work, I have experienced discernible moments when the energy in the room shifts, where tensions and hostilities palpably begin to dissipate as parties move forward onto a path to settling their differences.

Types of mediation other than the more traditional “facilitative” style are the “evaluative,” whereby a mediator can express an opinion and may even propose a basis for settlement; “transformative” mediation, more focused on the relationship; and the “mandatory” initial mediation as ordered by some courts.

Many people today are more familiar with mediation in terms of divorce, unions and international conflict; however, the applicability of mediation is far-reaching. Whether a dispute involves co-ops, condos, neighbors, corporations, small businesses, partnerships, employees  – the list goes on and on – all can avail themselves of the significant and diverse cost-saving benefits of mediation. Conflict’s a part of life; but, that doesn’t mean it needs to drain the life out of us.

Mallory J. Stevens is a divorce and commercial mediator and conflict resolution consultant in private practice in NYC. She’s an ex-international banker and also mediates in Spanish and Portuguese.

Article published in the July 2016 issue of The Cooperator, the Co-op & Condo Monthly)

http://cooperator.com/article/why-litigate-when-you-can-mediate

Compromising Positions

There’s a well-known story in the field of conflict resolution that tells of two sisters fighting over an orange. They argue back and forth, forth and back, about who better deserves to have it.  The older one says she deserves it because she’s older, the younger one because she’s younger, and both are adamantly stuck in their positions. With no resolution in sight, they finally decide to compromise and so split the orange in half. Each walks away with half an orange, proud of having found what she considers to have been the most efficient way to resolve the dispute.

But was it the best way?

With their respective halves of orange in hand, one of the sisters proceeds to peel hers, throw the peel away and eat the fruit; the other throws away her fruit and uses the peel for a cake she’s baking.  

Had the sisters attempted to explore each other’s underlying needs and interests, the sister who’d wanted the fruit would have ended up with a whole orange to enjoy rather than a half, and the sister who’d planned to bake a cake would have had an entire orange peel at her disposal. Certainly, every conflict is different (as are the individuals, circumstances and cultures involved) and no one type of resolution strategy fits all; however, research does show that parties in dispute who exercise a collaborative strategy (also called “interest-based” or “integrative”) are more likely to succeed in creating mutually acceptable solutions. So, while the sisters did manage to resolve their dispute, a collaborative approach would have been more mutually beneficial than their compromise.

There are four basic ways people can deal with conflict at different times – competition, avoidance, accommodation and collaborative problem-solving. These strategies depend on the level of concern people in dispute have for their own outcome vis-à-vis the other party’s outcome. (It’s called the Dual Concern Model.) If, for example, in a given conflict you have low concern for both your outcome and that of the other, it’s likely you’ll avoid the conflict or do nothing; on the other hand, if you have high concern for your outcome and little for the other’s, you’re likely to be competitive. Some conflict resolution theorists include compromise as a fifth strategy; however, others see compromise not as a strategy but rather as “a kind of ‘lazy’ problem solving, involving a half-hearted attempt to find a solution serving both parties’ interests.”[i] I’m inclined to agree with the latter.

It seems that virtually every time we read or hear of the ostensibly never-ending political posturing and conflicts in Congress, it’s “compromise” that’s said to be sought and, less frequently, achieved. And each time I read or hear that, I think of those two sisters. Now, maybe it’s semantics; perhaps what’s being referred to in Congress as “compromise” does include elements of collaborative negotiation; however, based on the pervasiveness of contentious posturing in that bicameral chamber (not to mention the vested interest factor), I’m skeptical as to how much earnest collaboration might be taking place.

Words have power, and so does how we frame them. What I’m proposing is a sort of Congressional paradigm shift, a reframing of the quest for the political brass ring: Strive to negotiate a “collaborative resolution” rather than seek “compromise.” I’m reminded of that line from the movie, Field of Dreams, “If you build it, he will come.”  However far-fetched the concept might seem with respect to Capitol Hill, perhaps by lawmakers’ reframing their conflict resolution model more collaboration could actually come.

A bona fide effort to move past positions and obtain real understanding of each other’s underlying interests and needs has the potential for being far more fruitful than simply splitting the orange in two.

---

[i] Pruitt & Kim (2004, p. 41)

Originally published in Huffington Post, July 27, 2015. 

A Case for Mediation (as published in Huffington Post May 13, 2015)

A multimillion-dollar lawsuit, three years of aggravation and an ulcer to boot.

Everyone wants to feel heard, and, particularly in conflict - when emotions are often inflamed - it's easy for understanding to be compromised and agreement to seem impossible. Mediation, a form of alternative dispute resolution, can remedy that. As a mediator, I have experienced discernible moments when the energy in the room shifts, where tensions and hostilities palpably begin to dissipate as parties move forward onto a path to settling their differences. Mediation's a highly effective alternative to long, drawn-out lawsuits that saves both time and money; it also can help mitigate stress, business and reputational risk and, not in the least, strained relationships. In fact, the benefits of mediation have been long embraced by bar associations, law schools as well as by our inundated local, state and federal courts.

Mediation is a voluntary process in which a skilled, impartial third-party - the mediator - helps facilitate a conversation between parties in dispute who have been unable to negotiate a resolution on their own. The mediator acts neither as judge, decision-maker or problem-solver. Guided by mediation's fundamental principles of neutrality and confidentiality, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Parties have the option of having their legal counsel participate in the process. Both in joint sessions and individual, confidential "caucuses," the mediator utilizes various understanding-building techniques and strategies to help break through positional barriers so as to uncover underlying needs and interests. As most mediators agree, it's never just about the money; it's often about the relationship.

The beauty of mediation is that it empowers parties to explore creative options for resolution and settle their dispute on their own terms, rather than face the uncertain outcome of a court's decision. While court decisions are generally defined in terms of win-lose, parties in mediation are afforded the opportunity to negotiate a mutually acceptable agreement. The ownership the parties take in the mediation process enhances the likelihood of their commitment to the process. As parties move closer to settlement, the mediator can help each (in confidential caucus) assess the strengths and weaknesses of its case, facilitate risk analysis and, as needed, will assume the role of "agent of reality." Settlements are binding and are generally drafted by parties' counsel.

Types of mediation other than the more traditional "facilitative" style are the "evaluative," whereby a mediator can express an opinion and may even propose a basis for settlement; "transformative" mediation, more focused on the relationship; and the "mandatory" initial mediation as ordered by some courts.

Conflict is an inevitable part of life. That doesn't mean it needs to drain the life out of us. If we find ourselves stuck in what appears to be an unresolvable dispute, it's good to know mediation's a great alternative to litigation.

Mallory J. Stevens is a certified mediator in private practice in NYC.

http://www.huffingtonpost.com/mallory-stevens/a-case-for-mediation_b_7253510.html

Active Listening: Everyone Wants to Feel "Heard"

When it comes to effective communication, paying attention, a passive skill, is only part of the equation. One strives not only to be “mindful” of what the other is saying or otherwise communicating, but also wants to let the other party know that genuine attention is being paid.  For example, have you ever been in the midst of even an “ordinary” negotiation (we negotiate daily, more than we may realize), only to find everything you have said was countered with an opposing retort, an unrelated comment or perhaps simply a “yes, but…”? One can be left feeling exasperated or angry, invalidated and, above all, not or mis-understood. This is where active listening comes into play.  Even in very contentious situations, taking a moment to reflect back to the other party what we heard him or her say enables us both to ensure we got it right (which, in emotional situations, we may not have) and demonstrate to the other s/he has been heard. If we’ve misunderstood, the other has the opportunity to correct us. It’s far less onerous to have a discussion with someone who genuinely attempts to understand us, and vice versa, even if we have differing ideas, goals, needs and/or interests. This is a first step towards the possibility of reaching collaborative agreement, or simply coming away with better understanding. Empathy also plays an important role in active listening.  Whether it’s formal conflict resolution training or customer sales training, empathy – putting yourself in another’s shoes – can help defuse tension and de-escalate a situation.  Think of how you feel when someone “gets” you. Yes, everyone wants to feel heard. And when we feel "heard," our own sense of "hearing" can be elevated.  The more we can move past positions and acquire a better understanding of each other’s needs and interests, the greater the opportunity for more collaborative interactions and mutually satisfactory results.

World Mediation Summit (Madrid, July 1-4, 2014) -- Synopsis

In early July, I was fortunate enough to attend the World Mediation Organization’s inaugural World Mediation Summit. The conference was held July 1 - 4, 2014, in Madrid at the Escuela Técnica Superior de Ingenieros Industriales (Industrial Engineering School) of the Universidad Politécnica de Madrid. The next scheduled, and newly renamed, “WMO Symposia” are to take place later this year in Hong Kong, Dallas and Manila, with a June 2015 WMO Symposium to be held in Berlin.

The dream of Daniel Erdmann, Ph.D., of Berlin, director general and founder of the World Mediation Organization (WMO) and professor and director of the School of Mediation at Euclid University, the concept of these symposia was designed to gather ADR professionals from around the world to connect, share their expertise and discuss topics related to conflicts of cross-border and international interest. The initial conference drew more than 100 mediators, attorneys, barristers, judges, scholars and diplomats from 18 different countries, representing Europe, North America, South America, Asia, Australia, the Middle East and the Caribbean. The four days were replete with informative presentations, panel discussions and training sessions – as well as plenty of enlightening and invigorating networking.

It appears that only relatively recently has mediation begun to be understood as “important and necessary” in Europe and other areas. Supportive legislation has even been enacted within the last few years. Here are but a few succinct, country-related highlights from some of the presentations.

•           Romania: Pursuant to a 2006 law, mediation began to be organized as a profession. A 2008 European Union mediation directive has helped regulate services, quality of training, equal treatment, etc.; nonetheless, in the words of the representative from the Romanian Mediation Council, the only mediation regulatory agency in that country, “Romania is still fighting for mediation.” According to the representative, the country has 9,000 mediators, only a third of which are actually working. They’re still in the process of promoting mediation everywhere, especially in mass media. The government is said to be uninterested in mediation, though the courts are more receptive. Currently, it’s not considered constitutional to require mediation.

•           Spain:  Here too, the courts are beginning to appreciate the importance of mediation. A July 2012 regulation “made mediation a reality” for civil and commercial disputes. Our conference host, the Escuela Técnica Superior de Ingenieros Industriales, has formed an organization of mediation-trained engineers (Institución de Mediación de Ingenieros); thus far, 350 have been trained, all with at least 150 hours of training.  Elsewhere, since 2006, there have been localized, restorative mediation activities for criminal cases. Valencia, a city of more than 815,000 inhabitants, has instituted a successful police mediation program; it’s been catapulted into a “Proyecto Europeo” (European Project), so as to share the model with other European countries, and has been working well in Italy and Greece, though not as well in Bulgaria.

•           Greece: Although mediation has been practiced in Crete since the 13th century, Minoan era, efforts to institute mediation in Greece commenced only in 2007; 350 mediators have now been trained. 

•           Eastern Caribbean (9 states): As long as a lawsuit is filed, case management or a high court judge will refer cases to mediation; it’s not compulsory, but if the court refers you, compliance is obligatory.

•           Italy: There was no real mediation until 2009, when it became compulsory, and in 2010 the Italian Ministry of Justice adopted an executive regulation that called for easy access for all professionals; it involved a “low-intensity,” 50-hour training course and minimal requirements for mediator trainers. A “chaotic” situation ensued, with lawyers divided: While some have seen this as a new professional opportunity, the majority has considered mediation as a “calamity” for their own businesses; they immediately boycotted it, even going on strike. Many other professionals expressed interest in mediation, seeing it as a way to supplement their earnings. Judges were initially confused and suspicious: “Only judges make justice. Mediators do something completely different that is not giving justice to people.” In time, they changed their minds. An October 2012 law overturned a July 2012 law that had mandated mediation, due to the government’s lack of power to impose it. Ultimately, in May 2013, the UE Commission gave its support to mediation and in August of that year enacted a new law that simply required parties to be informed about mediation prior to their initiating a claim. There is said to be poor quality of training, and increased demands from mediation with few resulting mediations.

Some other interesting presentations and workshops included (presenters’ countries indicated parenthetically):

•           Mediating complex large group conflicts (Canada): Highlighted was a very challenging, client-services group conflict that involved forty employees, four managers and twenty-nine different ethnicities

•           Cross-border divorce mediation and the “two-day attorney-assisted model” (USA): 98% of cases are resolved within two days

•           Online dispute resolution (ODR) for mediation (India and UK): Challenges and benefits; new software and processes (ODR was frequently highlighted during the conference)

•           Challenges experienced in restructuring complex programs with local governments in war zone environments (Afghanistan)

•           Indigenous communities in India (Amnesty International) and other areas (Philippines and Myanmar): Circumstances, conflicts, protections

•           Strategies for providing the non-violent resolution of international conflicts (Mediators Beyond Borders): Capacity-building projects that build local organizational and peace-building skills, advocacy projects that promote the appropriate use of mediation worldwide, facilitating dialogue

•           Applying psychology to conflict resolution (UK)

•           The process and theory of mediation (Spain and Italy)

•           Mediating complex cases for international corporations and nations (USA): Fortune 500 companies could take 4 - 9 months

•           Missing children of Europe – Family mediation involving transporting children beyond borders (Belgium): Of 700+ cases studied, 47% solved through amicable solutions; must be co-mediated

•           Israeli-Palestinian conflict (Egypt and Palestinian Territories)

•           Brains matter: The art and science of using the mind in conflict resolution -- Neuroplasticity (USA): Every time you learn something new, it changes your brain! (Admittedly, this session was one of my personal favorites!)

For more information about this valuable conference as well as upcoming WMO Symposia, you might wish to contact Dr. Erdmann directly at mail@worldmediation.org or visit http://worldmediation.org/symposia/.

All the best, 

Mallory Stevens

mstevens@msconflictres.com

www.msconflictres.com

917-716-6654