Mediation Skill – “Ask! Don’t tell.” – Shining Light on the Issues, Information and Ideas to Settle a Case

By Shawn Weber, J.D., CLS-F*
bright light
It’s not your case!

Professionals – especially attorneys – tend to have a habit of telling people what they need to do.  They may ask lots of questions to gather information to analyze the situation and determine what they believe is the correct outcome.  But in mediation, that is not the best approach.

Coming to a mediation with a fixed notion of what an outcome should be supplants the self-determination of the parties.  The parties, not the mediator, have the right to decide on their outcome. This is hard for professionals sometimes.  That’s because the temptation to announce a solution and “cut to the chase” is what they are accustomed to doing.  After all, it feels good to ride in on a white horse and solve all the problems.  Leave the white steed in the advocacy barn.

On the other hand, using the mediation skill of curiosity to ask questions rather than telling helps parties to hear one another more effectively.  Plus, it happens frequently that a professional may go into a mediation session with an idea of where she thinks the case should go, only to realize that the parties have a different idea.  Most often, the parties’ preferences are better.  It’s important for a professional to have the humility and courage to let go of preconceptions.

Questions should be open-ended, i.e. not answerable by yes or no, but rather require the participant to explain or add additional information. Questions should not be used to lead the party to a conclusion the mediator has already reached.

The Three I’s

We at Family Resolution Institute embrace the mediation skill of curiosity.  We use the three I’s:

  • ISSUES
  • INFORMATION
  • IDEAS

Issues

Issues are the things that matter to the parties (whether they are legal points or personal concerns).  It’s crucial for the mediator to clearly identify what the issues are from the parties’ perspectives — not the mediator’s. It takes the important mediation skill of real listening and questioning to get to what the issues really are.

Also, a party may hold to a legal issue for a personal, emotional reason.  Frequently, the issue is not the issue.  Good listening and curiosity can get to the real issues, which then will illuminate the pathways for settlement that may be missed if a mediator makes too many assumptions.  It’s best not to assume anything.

Information

Information consists of the details of the parties’ perspectives regarding issues.  It could be a description of a “story”.  Information can also be financial numbers, budgets, schedules and events.  Sometimes people may differ on their perceptions of the information.  It is very important to use curiosity with many follow up questions to really understand what is happening.  Frequently, a party may not want to share all of the information.  However, for mediation to work, transparency and equal access to all relevant facts and information is crucial.  A smart mediator will never assume anything.  Ask and explore until you know.

Ideas

The ideas are the various options for settlement.  It is important to generate as many ideas as possible. Even ideas that may seem bad at first may, after evaluation, turn out to be pretty good. Generating options and ideas is the fun, brainstorming part of mediation.  It’s how mediators can show parties what’s outside the box.  A skilled mediator will help the parties come up with as many different ideas as they can.

Don’t just assume that the typical options for settlement are the correct ones.  Don’t be constricted by what is typical or what a court would do.  Teach clients to open their minds and be creative.  Importantly, the best ideas usually come from the parties.  Don’t interfere with the parties right to self-determination by coming up with all the ideas.  After all, this is the parties’ case– not the mediator’s.

By taking the time to explore the information, issues and ideas with an open mind and no judgment, the mediator can really open up the case for the parties.  The role of the mediator is to help parties shine a light on what is possible and then let them make the decisions.  This mediation skill opens pathways to settlement that may have been obscured previously.  How do you learn what is possible?  Don’t tell.  Just ask.

*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.

 

Top Five Principles for Successful Family Law Conflict Managers

“Fair” is the F-Word!

How a Mediation Career Changed My Life: personally and professionally.

By Shawn Skillin, Esq., Family Resolution Institute Trainer and Co-Founder

My Previous Life

In my first professional life, I was a nurse.  Then I got this crazy idea to go to law school.  As a nurse I worked in the Surgical Intensive Care Unit, I was certified as a critical care nurse and as a trauma resuscitation nurse.  This meant I went to the ER for new trauma’s and went on “Codes” where ever they happened in the hospital.  It was the exciting hardcore stuff and I loved it.

Whemediation careern I went to law school, I thought the equivalent of the hardcore stuff would be litigation.  I mean how bad could it be, no one would die.  Then I started litigating.  I liked it, it was exciting, but it took a toll.  It wasn’t very predictable, there was no policy and procedure manual.  Ask five lawyers (or judges) the same question and I got five different answers.

To make matters worse, I missed the teamwork and camaraderie of the hospital with everyone working together to a common goal.  Divorce lawyers didn’t really work that way…

One of my colleagues suggested I would like a mediation career, so I signed up for a training.  I instantly felt at home.  It felt educational, collaborative, constructive and rewarding to me.  I felt much more in control.

A New Mediation Career

So off I went on a new professional adventure in my new mediation career.  I was in control of my hours and case load, no more ex parte hearings at the last minute, many fewer client crises.  I was educating clients, helping them solve their own problems and I was much happier.  As I attended more training and developed my skills, I became a better listener and learned to let go of the “outcomes”, after all, they belonged to my clients.  I was in charge of the process, they were in charge of the outcome.

What’s more, my new skills translated into other areas of my life.  I was better with my kids, little league and soccer parents and my siblings (a miracle in itself).  I tried to see my Husband’s side of things (warning, limited success here.)

If you are looking for a change in your profession, whether you are a lawyer, mental health professional or financial professional, consider giving a mediation career a try.

“Fair” is the F-Word!

To Caucus or Not to Caucus?    5 Circumstances When It’s Really Helpful

“Fair” is the F-Word!

divorce mediation, fair

Why “Fair” Is The F-Word

Our Co-founder and mediation trainer, Shawn Weber, J.D., recently wrote a post on his personal blog about why “FAIR” is a terrible word to use in mediation.  Really, a good mediator will move people away from fictional and hard to define concepts like “fair” or “justice” and guide them towards concepts such as the “good business decision” and “agreements we can live with.”

Read Shawn’s complete post here: Why “Fair” is the F-Word in Divorce Negotiations

Numbers vs Feelings: Different Perspectives in Mediation

By: Shawn D. Skillin, Esq.,  FRI Founder, Attorney, Mediator, Collaborative Divorce Practitioner ©2015 By Shawn D. Skillin

In divorce mediation, there is almost always a numbers person and a feelings person.  The numbers person was probably what I refer to as the “Managing Partner” in the marriage.  The person who balanced the accounts, took care of getting the bills paid and the taxes done, made the investment decisions, etc.  This spouse was often the more organized and logical partner in the marriage.  They are more logical in their decision making and often have a good grasp on how this divorce thing is going to look from a logical perspective.  They are often focused on practical matters:  schedules, finances, logistics.

The other spouse is often the “feelings” person.  Numbers aren’t really first and foremost in this person’s mind.  They are worried about where they will live, will they have enough money, are the children going to be ok, will they ever find love again.  They are often slower to process the practical issues of divorce.

How do you bring these two parties together into a space where decisions and planning can take place?  It’s not always easy.  Recognizing where each person is coming from is the first key.  You have to take each client “where they are at.”  You can’t fit a square peg into a round hole, so once you’ve identified this problem, start chipping away at the sharp edges.

Help the “numbers person” to recognize that the “feelings person” needs some time to process their feelings so they can take in the practical information and be ready to make decisions that will stick.  Pushing them forward too quickly will only result in a one step forward, two steps back scenario that ultimately frustrates the “numbers person” even more.  With the numbers person, my favorite saying is “slower is faster.”

Assist the “feelings person” by acknowledging their feelings, but gently reminding them that being involved in the decision making process requires their active participation.  Help them figure out what they need to help them move forward.  Gently remind them, that if they fail to make any progress, the other person may ultimately get so frustrated they will end up in court just to move things along.  Help them to outline what information they need and what resources they may need utilize to help them move forward.  Set deadlines for getting certain tasks done.

By acknowledging where each party is, the mediator helps normalize the situation for both parties.  This can make everyone feel heard and more comfortable in moving forward.

Top Five Principles for Successful Family Law Conflict Managers

By Shawn Weber, J.D., CLS-F*

In my years as a consensual dispute resolution professional, I have gotten to know a lot of professionals who try to manage conflict in divorce and family law situations. Some are very successful… and others not so much. I have compiled a list of my top five principles for successful family law conflict managers.

1. PATIENCE. This is not a race. Parties involved in a divorce are in crisis both emotionally and often financially. Don’t expect them to just reach a compromise in five minutes. The temptation is to try to “cut to the chase.” After all, we probably have an idea of where the settlement is long before the parties do because of our experience. But the parties need to “own” the agreement and they can’t if we just decide it for them and then try to force it on them.

Our job is NOT to twist arms. Our job is to help the parties find solutions. In my experience, arm-twisting rarely results in a lasting settlement. It does, however, leave a terrible taste in the mouth of the person whose arm you just twisted. If people feel pressured or forced, we may reach a settlement, but it is unlikely we will have been able to help the parties reach a transformative outcome. Worst of all, they will resent us.

Rather, we should let the case proceed organically. We will guide, inspire and motivate– but never, ever force.

2. HUMILITY. Newsflash! It’s the parties’ case- not yours. Your job is to help guide people to a respectful outcome. You are not the finder of solutions or the sage of wisdom. Your job is to shine a light on problems and help the parties find their own solutions.

I have seen mediators brandish their stats as a weapon in mediation. For example, parties may be stuck at impasse and the mediator says, “I have a 98% settlement rate and you are ruining my statistics!” Your statistics, as far as the parties are concerned, are completely irrelevant to their problems. Sure, you should be motivated to try and find solutions, but the moment you become personally invested in the outcome as a matter of pride, you are doing your parties a huge disservice.

In my experience, most of the best ideas come from the parties not me. While I sometimes see myself as the “brainstormer-in-chief” trying to provide as many ideas as possible that the parties may not yet have thought of, I never lose site of the reality that the case belongs to the parties. My most important job in brainstorming, however, is not to be the one with the great idea. Rather, I strive to create an environment were the parties can find the solutions on their own. I am the facilitator. I am not the decider. My personal pride is not important.

3. EMPATHY. Perhaps the most important skill a mediator can learn is the ability to listen. I am not talking about the superficial surface listening. I mean deep, empathic listening.

To help parties settle, you have to really understand the conflict. This requires more than just listening to words. You need to be attuned to body language and non-verbal cues. You have to be prepared to dig deep to find out what is really motivating a party and what his or her interests truly are. Yes, she may be telling you that it is about the house or the best interests of the kids. But maybe down deep, she is really just afraid or insecure about her future. In such a situation, no financial settlement will satisfy the party who is afraid until the fear is acknowledged and addressed. This may take some digging to find, but until you do, you won’t help the parties reach a lasting settlement.

I find that I have to make sure I listen with more than just my ears. I also listen with my eyes, my heart and my soul.

Remember, this isn’t just a legal process; it’s a human experience. Until we can get into the world our clients are experiencing, we are limited in what we can help them unlock for themselves.

4. FLEXIBILITY. Because I am working with people, I have learned to be ready and open for the unexpected. People don’t fit into compartments. My process therefore needs to have flexibility built in. A good mediator or dispute resolver can pivot quickly. Rigidity is the enemy of success when people are involved.

My mantra is “People before process.” While we may be very proud of our protocols and systems, the moment we allow them to drown out the needs of the clients, we miss the whole point of our service—to guide and help PEOPLE. We will keep our processes and protocols, but won’t be afraid to modify when the needs of the parties dictate a change.

5. PRINCIPLED BOUNDARIES. While it is important to be empathic and flexible, it is still important to have principles and boundaries, which we don’t compromise. For instance, I don’t ever let a party compromise my neutrality. I also insist on clarity surrounding how a party can communicate with me outside of the process. I guard my weekends and off hours, which are reserved for my own family. These and other principles and boundaries will not only preserve my own sanity, but they also communicate to the client that this is a business transaction and that there is a professional process that is deserving of respect.

While I am all about compassion and kindness, I am not a family member or a friend. I am a professional who has been hired to do a job. I do that job best when there are boundaries. Whenever I have allowed a boundary to be compromised, I regret it because the case almost always will go south.

I have found these principles to be crucial to my own practice. Perhaps you have other principles you would like to share. Let me know what works for you!

 

*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.