What makes or breaks a successful mediation? Your mindset; that is, how you approach it. Like athletes before an event, one must “visualize” the process of mediation and its successful outcome. Create a mental (if not actual) checklist of the pertinent facts and issues and think about alternative ways to resolve each issue. Become mentally primed for mediation before you even walk in the door. One of my colleagues likens mediation to a chess game: think about the moves you want to make and the alternatives.

            Mediation is a process. It takes time and the active involvement of each party. Walk in with a positive attitude; “we will resolve this!” Remember, the old adage: “where there is a will, there is a way!” Do not go in with a closed mind but, to the contrary keep a very open mind. Be willing to explore options and even consider ones that at first may seem “off the wall”. Those “off the wall” options may lead or brainstorm to other options that are more workable. One trainer once told me that there are two parts to our brains; the brainstorming part and the analytical part. The trainer suggested that in order to come up with solutions, we need to simply brainstorm, turning off our critical thinking part until we are finished brainstorming. Then and only then, do we start to analyze or critique the ideas we just came up with.  While this  sounds  simplistic, if not corny, it actually works; brainstorm first, and then analyze!

            One key to remember is that each party does live with the results of the mediation. So, while you may have others attending the mediation with you and/or advising you, it is your dispute.  You are the one who must live with the results. Make sure you can do so.

            Consequently, consider only realistic options. Do not take extreme or outrageous positions as they will only thwart the mediation process, not enhance it. Mediation should be viewed as a “win-win” process, not as a zero-sum game (“I win, you lose”). This is accomplished only by   being realistic in your expectations and in your demands.

            In sum, don’t simply demand on a “take it or leave it” or “all or nothing” basis; negotiate, be willing to compromise and to put time and effort into the process. Mediation is an old fashioned process amidst our world of fast moving, rapid (if not immediate) results  technology. We may be able to send an e-mail around the world in nanoseconds but mediation is antiquated. It takes time – often lots of it. Be patient. It is a psychological, mental and emotional process through which each participant must travel by giving and taking and compromising. Much of it is psychological: each party must come to believe that she has “earned” the result attained and this can be done only by the process of “give and take” ( i.e., the negotiation “dance”). It is often said that a “good” settlement is a compromise in which one party believes she has not received enough and the opposing party believes she has given too much. But, the key is that both parties have compromised and not stuck hard and fast or rock solid to their respective positions. Each has taken the time and made the effort to see the dispute from the other party’s perspective and with that new view in mind, compromises so that each “wins” a little in the settlement.

            Mediation is all about attitude: if you walk in, wanting to resolve your dispute, chances are, you will!

            . . .Just something to think about!

             Recently, I read an allegorical tale entitled, The Art of Racing in the Rain by Garth Stein (Harper 2009.) In his waning days, Enzo, a labador mix, recounts his life with his owner – Denny – a struggling race car driver. Enzo becomes quite a fan of racing and through his tidbits about racing, teaches us life’s lessons.

            One example is the principle lesson throughout the story. It is a simple concept:

. . .that which we manifest is before us; we are the creators of our own destiny. Be it through intention or ignorance, our successes and our failures have been brought on by none other than ourselves. (Id. at p. 43).

 . . .that which you manifest is before you. . . . (Id. at p. 46).

             Another important principle appears early in the novel:

. . .But what I’ve always liked best is when he [Denny] talks about having no memory. No memory of things he’d done just a second before. Good or bad. Because memory is time folding back on itself. To remember is to disengage from the present. In order to reach any kind of success in automobile racing, a driver must never remember. (Id. at p. 13).

             Enzo even discusses the concept of active listening, which is so important in relationships:

Here’s why I will be a good person. Because I listen. I cannot speak, so I listen very well. I never interrupt. I never deflect the course of conversation with a comment of my own. People, if you pay attention to them, change the direction of one another’s conversation constantly. It’s like having a passenger in your car who suddenly grabs the steering wheel and turns you down a side street. . . . Learn to listen. I beg of you. Pretend you are a dog like me and listen to other people rather than steal their stories. (Emphasis original). (Id. at p. 101-102).

              At the heart of many disputes and of so much litigation is the inability or unwillingness to take responsibility for one’s own actions. Even within the confidential confines of a mediation, a party often refuses to acknowledge much less accept responsibility or fault. Yet, I have often found that when a party does acknowledge and/or accept responsibility, it constitutes a big break through, and the matter quickly resolves itself. How true are Enzo’s words: “that which we manifest is before us.” We are indeed the masters of our fate. We brought the dispute upon ourselves, and we can bring the end to it, as well. Or as Enzo pointed out,  “. . . your car goes where your eyes go. . . .” (Id. at p. 83).

             A second life’s lesson, as Enzo points out, is not to dwell on the past. Live in the present. Dwelling on the past will not resolve anything. Matters get resolved by focusing on the present and the future. Life is like racing:

. . .racing is doing. It is being a part of a moment and being aware of nothing else but that moment. Reflection must come at a later time. (Id. at p. 14).  

              So while it may be good to reflect on the past at some point, dwelling on it only causes mistakes! And it will not settle the matter. Playing the “blame game” will lead nowhere! Stay in the present and focus on the future in trying to resolve anything.

            And – listen – to the other party. Do not interrupt and steal her story onto another topic that is all about you. One can learn a lot by listening; it goes a long way to resolving disputes. I am fascinated by how much I learn simply by listening to people, focusing on them and staying in the moment!

            As you may surmise, the book is a wonderful, beautiful story that I can read over and over again, gaining new insights each time. I will not tell you how it ends; you will have to find that out for yourself.

            . . .Just something to think about!

            If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

            I finally had the opportunity to read the book my colleague Victoria Pynchon, J. D., LL.M, recently published, A is for Asshole – The Grownups’ ABCs of Conflict Resolution (Reason Press 2010) and discovered that I should have read it much sooner as it is delightful!

            The chapter that struck me the most is entitled “L is For Lawyer”. In it, Ms. Pynchon recites the story of being asked to mediate a probate dispute even though she knows absolutely nothing about probate law. It took some moments for Ms. Pynchon to understand that the family members caught up in the will contest were not concerned with their “legal” rights; they wanted to find a resolution that was “right” for them. They were not concerned about the “relevant” facts but about the “irrelevant” ones – the emotional, financial and other non-legal issues that had to be considered in order to repair and heal the family relationships.

            As Ms. Pynchon points out:

“ “Irrelevant” facts and principles sometimes run contrary to the law, and are often more personally compelling. These irrelevancies often lie at the heart of a client’s insistence to pursue litigation; of his decision that it is not worth further expense or of his hesitancy to accept an offer rather than go to trial. These emotional responses and value choices are often the key that unlocks the door of resolution, not a barrier to the dispute’s conclusion.” (Id. at p. 80).

            These words rang so true with me because I had recently conducted a mediation in which one party was concerned solely with the “relevant” facts (that is, the law) while the other party was concerned with the “irrelevant” facts, (that is, the psychological impact of what she was being asked to do). It involved a deed of trust worth several millions of dollars. On a motion for summary judgment, the trial court ruled that the trust deed did not cover the real property in question. Thus, the deed of trust was worth zero dollars! The deed of trust holder appealed and even though she knew that there was a strong likelihood that the appellate court would affirm the ruling of the trial court, she simply could not walk away from several millions of dollars; she had to be paid something! The psychological impact (that is, the “irrelevant “facts) was too great.

            On the other side, the property owner who had won the summary judgment motion insisted on using only “relevant” facts (that is, the law) in the mediation. Although she knew there was a small likelihood that the appellate would reverse and remand the matter back to the trial court for more motions and a trial (and thus more expense), she refused to address the emotional, psychological and most importantly, the financial impact to the deed of trust  holder of losing several millions of dollars. The property owner absolutely refused to pay one penny to the deed of trust holder, adamantly standing on her “relevant” facts and completely discounting the time and expense that she will incur should the appellate court reverse the trial court’s grant of summary judgment so that the matter ends up in the trial court once again. She insisted that the trust deed holder simply “walk away” from everything.

            So, as you can guess, the matter did not settle. Although the “irrelevant” facts ran contrary to the law (according to the judge who decided the summary judgment motion in favor of the property owner), they are more important to the trust deed holder than the “relevant” facts Similarly, the “relevant” facts were the only thing important to the property owner. Try as I might, I was unable to nudge one or the other onto the playing field of the other party.

            What is going to happen? These parties will probably spend a lot of time and money going round and round on this . . .  and in the end. . . neither will be happy; their “day in court” will be a letdown and may be missing some “justice”. What is legally “right” is not always “fair” and what is “fair” is not always legally “right.”

            It is so true that often times, the “irrelevant” facts – are more important than the “relevant” facts. While the “legal” issues are important, it is the psychological, emotional, financial and personal issues that often control a dispute. If these can be resolved, more times than not, the dispute can be resolved.

            . . . Just something to think about! 

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

            As a lawyer licensed in California, I am required to take a certain number of continuing education courses, one of which is the elimination of bias. So, I took a one-hour on-line course – courtesy of CLEonline.com – taught by Professor David Hriciki, Mercer University School of Law. The written materials include a 78 page discussion, entitled “Bias, Prejudice and Related Unprofessionalism in the Legal Profession” by Professor Hriciki (2004).(Bias ) Although it runs the gamut in discussing bias in various forms – the written material focuses mainly on minorities and women-providing some very interesting statistics about the latter including that in 1989 when asked by the State Bar of California Women in Law Committee “. . .88% of the respondents reported a “subtle, pervasive gender bias in the profession and 2/3 believed they did not have as much opportunity for advancement as did male lawyers.” (Id. at 22). (But more on this in a later blog!)

            But what struck me is what the author identified as the “root” cause of any bias or discrimination; “the simple human need to be with those who are most like us.” (Id. at 43). As the author explains:

“. . .much exclusion comes from the simple and understandable human desire to be with those who are like we are. Men are, generally, more comfortable having lunch with other men; older women with older women, and so on. . . . (Id.).

            Professor Hricik explains the best way to combat this:

“. . . one of the broadest and perhaps most effective means to challenge bias and prejudice is to challenge your assumptions (“CYA”). Prejudice means prejudging and is often subtle and unintended. It can take the form of assuming that the minority is the secretary, not the partner (citation omitted). It can take more subtle form. By focusing attention in on whether you are assuming something about the minority before you, you may recognize that subtle bias and prejudice are impacting your world view.” (Id. at 43-44).

            What should we do? “. . .first, admit there is a problem – identify your own stereotypes and assumptions. Be aware of your words and actions.” (Id. at 44). Simply put, treat everyone with respect, courtesy and dignity, regardless of who they are or appear to be. Be consistently respectful. (Id.)

            As the author notes:

“Observe and respect others’ comfort zones, personal distance and tenor of their language and match it as much as possible. Watch others’ reactions; note how they treat you and others as a clue to how they would like to be treated. If unsure of how to act in a particular situation, ask. . . . Take anger and upsets seriously, and apologize if you unintentionally offend someone. Respect others’ differences and wishes. And again, be flexible.” (Id.)

            Obviously, following the wisdom in these words will go a long way to resolving disputes. By treating people with courtesy, dignity, and respect and treating them as they would like to be treated, they will respond favorably which is the first step towards settling anything.

            Just as important, diversity leads to thinking “outside the box”:

“ “. . . Heterogeneous working groups offer more creative solutions to problems than homogenous working groups. They  also show greater inclination for critical thinking and are likely to avoid problems associated with “group think” where members mindlessly conform to group precepts. Ethnicity provides the necessary heterogeneous perspective sufficient to trigger “kaleidoscope thinking” by providing a variety of perspectives and to combat “group think.” (Id. at 27).

            So, challenge your assumptions, be respectful of the other person, listen – really listen – to her different and diverse perspective. Through “kaleidoscope thinking”, an “outside the box” solution may just be found!

            . . .Just something to think about. 

 If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

            Why do we make mistakes? This is a really good question and one that we have probably each asked ourselves more than once. It is also the title of a book that I recently read (Why We Make Mistakes by Joseph T. Hallinan (Broadway Books, New York, 2009)) in which the author attempts to explain how our very scientific brain works in simple every day terms.

            Why do we make mistakes? For any number of reasons: one is that we look but do not always see, and so miss important details. Or, we miss things that are apparent to others but not to us, no matter how hard we look. (Id. at pp. 11-17). Think about all of the typographical errors we have missed in proof reading.

            Another reason is that the “mistake” is not our fault or so we tell ourselves. We attribute the “mistake” to someone or something else. Because of this misattribution, we are likely to make the same mistake over and over again since we have placed its cause outside of ourselves and as belonging to someone or something else. (Id. at p. 5).

            A third reason is that as hard as we try, our brains are not hardwired to multi-task. In his book, the author gives the example of a cockpit crew that became so focused on or engrossed in why a particular indicator light did not come on, that they “forgot” to fly the plane as it was landing. As a result, the plane crashed (killing 99 people). They had become so consumed in figuring out about the light, they lost their awareness of the overall situation – that they were supposed to be landing the plane! (Id. at pp. 76-77).

            Studies have shown that we simply cannot multi-task. When we do try to save time by doing several things at once, our brain actually slows down, so that we have gained nothing. Further, by switching between tasks, we tend to forget what we were doing and, as we all know, it takes time to re-remember. Further, such multi-tasking or divided attention can cause “inattentional blindness”; we look directly at something and still do not see it! (Id. at pp. 78-81).

            Fourth, we may make a mistake because our perception of the event is all wrong. We have “framed” the issue or the event  in the wrong way either based upon what we have heard and/or seen. Based on what we “assume” or “think” we heard or saw, we react and, as it turns out, our response is inappropriate. How many times have you overheard bits of conversation or walked into the middle of a situation and mistook what was actually happening? (Id. at pp. 91-93).

            A fifth reason why we make mistakes is because we all think we are above average: we are over confident which causes us not to be as realistic or as objective about our abilities or our intentions as we should be. We are overly optimistic that we can accomplish our goal or that we will, indeed, do something (e.g. lose weight in the new year? Or, get much more exercise in 2011?). (Id. at pp. 149-151).

            Finally, the book addresses the question that many women have often wondered (including me): why don’t men ask for directions? Because… they do not believe that they are lost in the first place!  As the author explains, “. . .men report having more confidence about their sense of direction than women do – even though there is little evidence that they actually have a better sense of direction.” (Id. at p. 147). Because of this, men are quite happy to “take a more abstract approach, navigating through the use of metrical distances, like miles, and cardinal directions, like east and west. . . .” (Id. at p. 147). Men enjoy using this “survey” strategy. Women, though, prefer a  more concrete, step-by-step approach that relies on landmarks (or so-called “route” strategy) (e.g. turn left at the drugstore, go one block and then turn right at the gas station, et cetera). (Id. ) Consequently, because men enjoy “navigating,” and using an abstract approach, they never think they are lost!

            This book contains many more insights  into why we do make mistakes, and often repeat them. Its theme is that we are, indeed, fallible but because of our biases, we are often not even aware that we are making mistakes. Or, if we are, we certainly won’t admit them!

            As you might guess, making mistakes and why we do so does have something to do with disputes, their resolution and thus mediation. Often, in order to resolve a dispute, we must gain an insight into a person and her approach to life. This book provides that very necessary roadmap. It is worth reading. 

            . . .Just something to think about.  

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button