Setting the Table for Settlement:  How to make the environment in your office conducive to settling the case

Having mediated divorce cases my entire career, I have learned that the space in which the negotiations take place can have a huge impact on whether we can get to “yes.”  If the room does not promote settlement, it can actually have a negative impact on outcomes.

family courtI first started to notice this phenomenon when volunteering as a Settlement Conference Judge at the Family Court in San Diego.  The environment at the San Diego Family Court (before it moved to the new and beautiful courthouse in San Diego) was really bad.  I was forced to sit with the parties and try to get them to reach a settlement in the lobby of the courthouse at non-private tables just outside the courtroom.  The environment was stressful anyway because it was the same location where litigation happened.  Furthermore, because the tables were in the lobby and not private, it was hard for parties to focus on their cases.  Sometimes other attorneys would interrupt to say “hello”.  Furthermore, the sheriff with his side arm was ever present.  Other people who were there for their own cases were present in the room.  Let’s just say that the environment was very stressful. As a result, parties did not feel safe.  It was hard to settle in spite of my mediation skills.

In contrast, sometimes counsel would hire me to mediate the same case after the mandatory settlement conference with great success at my office, where I control the atmosphere in ways to encourage settlement.  In fact, I have learned that certain conditions must exist before a case will settle:

  • The space must lack distraction.
  • The parties must feel safe.
  • The parties must be able to be calm and relaxed.

Here’s what I do to encourage those conditions.

divorce mediation conference room furniture

A mediator’s office should look less like a law office and more like a home.

Once, I had an argument with my interior designer about a piece of furniture I had selected for my small conference room, where I do most of my divorce mediation.  She complained that it didn’t look like a piece that would be in a professional law office.  It was more appropriate in someone’s dining or living room.  It was at that moment that I knew I had made the right choice.  When I explained to my designer that I liked the piece precisely because looked like it belonged in a home instead of a law office, I saw the light go on.  She got it.  We then made the conference room look comfortable and homey.  From then on, my requirement for any new furniture was that it could not look like it belonged in a lawyer’s office.

People do not feel as safe in a lawyer’s office as they do in a home.  I make a point of moving as far away from “traditional legal” design as I can get.  No large oak bookcases filled with law books.  No “goddess of justice” with her blindfold and scales.  And never- under any circumstances- will there be a gavel.  (I received a reward one time with a plaque that featured a gavel.  I keep it hidden away from the client’s view in my working office.)

dolphin lawyer painting and furniture

Colors should be relaxing and calming.

Colors can do so much to set the mood of a space.  The effect of color on one’s mood can be so powerful that there is an entire field of “color psychology”.  Leslie Harrington, a color consultant in Old Greenwich, Connecticut, was quoted that, “Color is a universal, nonverbal language, and we all intuitively know how to speak it….  What color you paint your walls isn’t just a matter of aesthetics.  It’s a tool for your mediation skills that can be leveraged to affect emotions and behavior.”[1]

calming color

As a secondary color, we went with a light brown, which conjures a feeling of strength and reliability. Viewed as solid, natural and down-to-earth, brown is often linked to resilience, dependability, security, and safety.[4]  One commenter wrote, “Brown is a color that oozes security. It symbolizes HOME, contentment and peace and quietness. The browns are colors of good furniture and favorable smells thus imparting happiness.”[5]

Consider essential oils.

essential oil diffuser

Massage therapists and spas have long known the benefits of aroma therapy for relaxation.  To spread a relaxing scent throughout our office, we use the Dewdrop Design Home Diffuser from Young Living Essential Oils.   It cost us around $89 and came with an essential oil starter kit.  For relaxation and stress relief, our favorite oil cocktail is lavender mixed with citrus.  We also like the Young Living blend called Stress Away, which is a pleasant blend of Copaiba, Lime, Cedarwood, Vanilla, Ocotea, and Lavender.

There are many essential oil options on the market as well as many studies about the effectiveness of aroma therapy.  One study showed that “aromatherapy reduced anxiety, increased sleep, and stabilized the [blood pressure] of patients undergoing cardiac stent insertion.”[6]  Another study showed that aroma therapy significantly reduced stress responses in high school adolescents.[7]  Yet another study at the University of Montana showed that a treatment group who inhaled essential oils consisting of clary sage, chamomile and lavender “reported lower levels of anxiety and stress, and increased levels of sleep quality and energy. The control group, in contrast, reported higher levels of anxiety and stress, and decreased levels of sleep quality and energy. The results suggest aroma inhalation may reduce stress among college students.”[8]

essential oil

No matter where the science falls for us, the oils simply help create a low stress environment, which does a lot to pull people out of fight or flight so that they can make rational decisions.  It simply enhances your mediation skills by encouraging settlement.

However, I have also learned to be careful.  The scent should be subtle.  Making the smells overpoweringly strong is distracting.  So, have fun with it and use the oils to help make your mediation environment relaxing and calm, but don’t overdo it.

Have Food.

When I was a child, visiting my grandparents was a special treat.  They lived two hours away by car.  The routine was always the same.  We’d arrive in the driveway and they would greet us with open arms and love.  Then they would prepare a wonderful lunch.  We’d gather around the table and eat together. The food, though never fancy, was comforting. It was a ritual that brought us closer and encouraged conversation.  Today, my wife and I try to have regular family meals.  There is just something about eating together.

I’ve learned to apply the power of food in my mediations.  We don’t overdo it, but an element of comforting food at the center of the table can go a long way.  Experience shows that chocolate can be the great elixir of settlement.  Having muffins and coffee can be very nice and add to a “homey” atmosphere.  A little bit of candy is a nice touch.  Also, health snacks like trail mix, nuts or fruit can help folks replenish a little bit.  Bananas with their high dosage of potassium can help with fatigue.

Not only adding to a relaxed, homey atmosphere, the food gives the mediator some information too.  If you have ever watched a cat approach food, you will notice that the cat will look over its shoulder and approach the food very carefully.  It’s not just because the cat is a nervous wreck.  It’s watching out for predators before it will allow itself to be vulnerable and eat.  If you watch animals in the wild eat, you may notice the same thing.

People aren’t much different.  I have learned that a party in a mediation won’t eat unless he or she feels safe.  If the stress is high, the snacks often remain untouched.  I might model behavior and start eating myself- showing that the environment is safe.  I observe who eats and who doesn’t eat.  If a party refuses to partake of anything, I get one set of data.  Conversely, if a party eats all the chocolates in a bowl in ten minutes, one might think there is some stress eating going on.

Relaxing Music.

Relaxing music can also go a long way to set a mood for settlement.  Often my clients are agitated when they arrive.  I usually just go on YouTube and find something appropriate to pipe through the speakers at my receptionist’s computer.  I keep the volume down.  Just enough to set the mood is fine.  It can also serve as some white noise to help with masking upset voices coming from behind doors.  (Additionally, I sometimes use a white noise machine in the waiting room to help with confidentiality especially when voices are raised.)  Be careful of your music choice, however.  Some classical music can be extremely agitating.  Whatever you choose, make sure it is soothing.

A Neat, Clean Space.

messy officeWhen I work, I have a tendency to have files everywhere.  It’s my working style—managed chaos.  That may be fine for me (probably not really)—but a chaotic environment is not ok when you are trying to use your mediation skills to help people feel safe and be calm.  In fact, when things are messy, it contributes to stress.

I once visited a colleague’s office for a mediation where I served as advising counsel.  I knew the moment I arrived that the case would not settle.  There were boxes in the hallways, post-its all over the walls and papers everywhere.  I could see my client’s agitation level rise the moment he walked in the office.  It was chaotic and things did not go well.  According to Sherry Burton Ways, an interior designer, color therapist, and author of Feel Good Spaces: A Guide to Decorating Your Home for Body, Mind And Spirit, “Mess equals stress.”[9]

Plants.

office plant for mediation environmentPlants bring life to a space.  According to Burton Ways, “Integrating plants in the work environment not only beautifies the environment but has been proven to reduce absenteeism, reduce stress, lower blood pressure, increase positive feelings, lower noise levels, decrease room temperature and lower humidity.”[10]  Several studies have found that benefits of potted plants in an environment include lower blood pressure, improved reaction times, increases attentiveness, improved well-being, improved perceptions of the space and lower levels of anxiety.[11]

One study conducted in 2010 found strong evidence that office plants can reduce stress and negative mood states. Subjects who had plants placed around their offices showed reduction in stress levels and negative feelings by 30 to 60%, whereas environments without plants showed increases in stress and negativity by 20 to 40%.[12]

A Calm Environment.

Early in my legal my career, I worked in a high-stress office.  It was always a hustle and bustle.  People would often yell or swear.  Attorneys would yell from office to office as they hurried through their high-speed day.  The informality was great for the high-paced litigation world.  But I found that my mediation clients did not react well.  The sheer volume and noise were distracting.  Worse, the stress created by all that negative energy was contagious.  I watched as my clients looking for a refuge were bombarded by chaos.  It made them feel uneasy and increased their anxiety.

As a result, we now have a policy against raising our voice.  Shouting from office to office is discouraged.  If there is a crisis, we keep it in the back office and away from the clients.

Conclusion.

Parties in a family law or divorce mediation come to us at a crisis in their lives. Hence, essential mediation skills include the ability to produce a feeling of sanctuary, shelter, and refuge from the storm.  Your office space can either help or hinder the parties feeling safe and ready to negotiate.    So, take the time to take inventory of your environment.  Pay attention to the details.  Set the table for settlement.  Your clients will thank you.

dolphin lawyering relax

Shawn Weber is a master mediator and co-founder of Family Resolution Institute.  For more information about Shawn Weber and his unique Dolphin Lawyering approach to family law, visit www.WeberDisputeResolution.com.

 

[1] “Color Psychology: How to Make Your Home Feel Good, David Freeman,” WebMd, http://www.webmd.com/women/home-health-and-safety-9/color-psychology visited on June 23, 2017.

[2] “How Paint Color Affects Mood,” Newlight Painting, https://www.newlifepainting.com/blog/how-paint-color-affects-mood visited on June 23, 2017.

[3]“The Color Psychology of Blue,” Verywell.com,  https://www.verywell.com/the-color-psychology-of-blue-2795815 visited on June 29, 2017.

[4] “The Color Psychology of Brown,” Verywell.com, https://www.verywell.com/the-color-psychology-of-brown-2795816 visited on June 29, 2017.

[5] Id.

[6] “Effects of Aromatherapy on the Anxiety, Vital Signs, and Sleep Quality of Percutaneous Coronary Intervention Patients in Intensive Care Units,” Mi-Yeon Cho, Eun Sil Min, Myung-Haeng Hur, and Myeong Soo Lee,  National Center for Biotechnology Information, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3588400/ visited on 6/30/2017.

[7]“The effects of aromatherapy on stress and stress responses in adolescents,” J Korean Acad Nurs. 2009 Jun;39(3):357-65. doi: 10.4040/jkan.2009.39.3.357 abstracted at   https://www.ncbi.nlm.nih.gov/pubmed/19571632 visited on 6/30/2017.

[8] Sangwin, McKinley J., “A Study on Stress and Aromatherapy Intervention Efficacy” (2016). Undergraduate Theses and Professional Papers. Paper 73 cited at http://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1079&context=utpp visted on 6/30/2017.

[9] Sherry Burton Ways as quoted in “How To Create A Stress-Free Work Environment,” by Jacquleyn Smith, Forbes, 11/18/2003, https://www.forbes.com/sites/jacquelynsmith/2013/11/18/how-to-create-a-stress-free-workplace-environment/#4119c762f8cc visited on 7/11/2017.

[10] Id.

[11] Kaplan, Jonathan S., “Plants Make You Feel Better: The Positive Impact of Nature,” Psychology Today, 05/11/2009, https://www.psychologytoday.com/blog/urban-mindfulness/200903/plants-make-you-feel-better visited on 7/11/2017.

[12] “The positive effects of office plants,” Nursery Papers: Technical, July 2010, Issue No. 6, https://www.ngia.com.au/Attachment?Action=Download&Attachment_id=1430 visited on 7/11/2017.

“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.

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

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

©2015 By Shawn D. Skillin

A caucus is a private meeting with a mediation client that is confidential between the client and the mediator unless otherwise agreed.  In my early mediation practice I was reluctant to caucus.  I don’t really remember why.  Maybe I wasn’t sure what would happen in there alone with a client and that whatever did happen I may not be able to handle.  Later, I went through a period where caucus was my favorite tool.  Now, I keep it handy and find it useful in many situations.

  1. Reality testing: Reality testing is often best done in caucus especially if the “reality” does not favor the client you are meeting with.  It gives the mediator a chance to give the client some down and dirty basic facts.
  2. Building Trust:  It’s useful in building trust with a party.  It gives you a chance to privately acknowledge their concerns and issues.
  3. Acknowledging the Elephant: Sometimes, I can tell one or both parties has something they want to tell me but aren’t going to say in the presence of the other party. There’s an obvious elephant in the room that is creating a blocking issue. A caucus will inevitable reveal the “elephant” and help the mediation move forward.
  4. Saving Face:  A party is often willing to “give a little” if they don’t have to do so right in front of the other party.
  5. De-escalating: When parties are angry, talking over each other and nothing else is working.  I take a break and then call for a caucus.  This can calm everyone down and get some good work done moving forward.

If you haven’t tried a caucus, give it a go next time things get sticky, you just might find it works for everyone!