Decision Resources

The fundamental goal of mediation is to fully explore all possibilities for a mutually satisfactory agreement. For this to take place, participants have to be ready to:

• acknowledge the past without getting stuck there,
• work constructively in the present, and
• imagine possible steps to move forward into the future.

Beyond this goal, if the participants are willing, mediation offers the potential for peace through a transformation of the feelings and judgments about the situation and the people. This can be an outcome of great value….to experience greater peace.

People often ask me (a) whether mediation will work and (b) how long it will take. The honest answer to both questions is, “It depends.” The specific answer depends upon three things….

• Sufficient Motivation – How much do you and the other side want to resolve this and move on?
• Clarity of Understanding – Are you willing to make a full effort to understand the situation, focus on what is most important, develop options, and assess them?
• Effective Communication – Are you willing to overcome any barriers that get in the way of constructive, respectful communication between the participants?

In essence, success in mediation depends, upon the level of your motivation and effort. My work is to structure and “hold” a physical, temporal, and psychological space. This gives you the opportunity to develop clarity and communicate so you can explore all the possibilities for a mutually satisfactory agreement. Your work is to find and sustain sufficient motivation so that you make a full effort and persevere in the face of any challenges.

Understand What Is Important

Align Your Words and Actions With Your Intent. It is critical to take time and reflect upon what is most important so that your behavior toward the other parties serves your highest priorities. In the midst of difficult conflicts it is possible to become reactive and behave in ways that fail to serve, or even harm your own interests. For example, I have seen parents who love their children and would give up their life to protect them, remain so stuck in their hurt and anger toward the other parent that they act in ways that produce emotional trauma in their children's lives....the exact opposite of what is most important to them. I have seen employees who want to protect their job security speak before thinking in mediation and burn bridges that are impossible to rebuild leading to an inevitable parting with a supervisor and the organization.

Prepare to Negotiate

Do your homework. Before you enter mediation and between sessions, take time to consider what information is needed. Have relevant documents available for reference. Consider what you need to learn that you don't know. For example, if the issue involves the value of a piece of property, you don't have to spend money on a formal appraisal, but you might talk informally to knowledgeable realtors about a 'ballpark' idea of property value. If the dispute involves legal issues, a consultation with an attorney before entering mediation might be a good use of your time and money.

Stay Centered

Don't react, go to the balcony**. A centered state is a state of managed anxiety and emotional balance. From this place you can access all your resources….intellectual, emotional and spiritual. It is a place of full capacity and personal power. If a participant in mediation becomes very emotional and judgmental during the process, it is useful to know what to do to manage the emotional state so that feelings and verbal judgments are not expressed without considering that what you express is true, respectful, and helpful to move things forward. For most of us, it helps to have a space (a “balcony”) where we can go to regain our perspective. We know from the growing field of neuroscience that the thinking and creative capacity of the neo-cortex in the brain is compromised when people "flood" with strong emotions like anger and fear. Too often in conflict that has persisted over time, people "marinate" in these powerful emotions...anger, resentment, rancor, despair, grief, frustration, fear, and anxiety. Use your understanding of what is truly important to pull out of unbalanced emotional states so you can make wise decisions.

Be Accountable. When you maintain a sense of equilibrium, it is more likely that you can examine your responsibility and accountability for the situation. This avoids the common trap of placing all the responsibility (in the form of blame) at the feet of the other person and holding yourself in an innocent victim stance. Many conflicts cannot be simply reduced to “Right vs. Wrong,” with a “Victim” and an “Oppressor.”

Communicate Constructively

Be hard on the problem and soft on the people.* You can be firm in making statements about what is and isn't acceptable without accusations, judgments of others and disrespectful language. "I can't see why that proposal is fair and workable from my perspective." vs. "That's a ridiculous idea." You can remain focused constructively on the problem without personalizing by remembering to frame your questions and comments positively whenever it is possible and honest to do so. For example, shift...

• From “I don’t want……….” To “What I want is…..”
• From “That won’t work…..” To “What might work….”
• From “You’re a liar……….” To “I need independent verification…”

Bring them to their senses, not their knees.** Threats often backfire, drawing counter-threats or defensiveness. A respectful warning about what you might have to consider, delivered along with a clear, sincere affirmation of your desire to continue to work together, is usually more constructive.

Additional Behaviors That Help

Do unto others as you would have others do unto you. There is a reason that the 'Golden Rule' is one of the oldest and most universal of moral and spiritual teachings, existing in varied form in most of the major religions. If you don't like to be spoken to in a sarcastic, lecturing, or judgmental tone, then avoid speaking with that tone. If you want someone to consider what’s fair from your perspective, then be willing to listen and consider what’s fair from their perspective. Too often in mediation, people feel entitled to speak and act toward the other in less than respectful ways because, "that's how he treats me!" In the words of Mahatma Gandhi, “An eye for an eye makes the whole world blind.” It only takes one person who refuses to become disrespectful to improve the quality of the conversation. And it is not only our words, but our body language and voice tone that convey meaning. Language in any form that conveys scorn, contempt, or lack of basic civility is unlikely to produce anything positive and highly likely to increase polarization, hostility, rigidity and defensiveness.

Firm on Goals, Flexible on Means. Remain firm in protecting what is important and flexible in considering ways to accomplish this. For example, if someone makes a proposal that you can't accept, rather than reject it outright ("That is absolutely unacceptable."), consider an alternate response that could keep the exchange going. ("That won't work for me, but I'd like to take your framework and apply it differently to see if there is something here that I can agree with.")

Keep Your Eye on the Prize, Not on the Rear View Mirror. Many conflict situations have taken time to develop before the parties see the need for mediation. It is common that participants have strong feelings about what happened and what others have done or failed to do. However, when the focus remains mostly on these feelings and one's judgment of others conduct, it is much more difficult to get traction and work toward a fair, workable agreement. Participants may have irreconcilable views of what took place. Therefore, be prudent about how you choose to air what happened and the impact upon you so you do not get "stuck" in the past, simply recycling hurt, resentment, and judgment. If you want to work toward agreement and closure, address the past and keep your eye on the desired outcome....a fair, workable agreement. This cannot be found in the past!

Think Options! What possibilities are you aware of to consider or formally propose? How have others addressed issues like this? Be resourceful and creative in identifying and presenting options.

Develop Effective Proposals. Consider how a proposal will be received by the other side BEFORE you share it. How can you present an option so it addresses your needs but also considers the needs of the person who has to agree? Look for opportunities to demonstrate flexibility and good will. Where can you make real or symbolic concessions?

Create a trustworthy support system so you are not isolated and anxious. It can be useful to have at least one person to whom you can turn to for support and guidance. Sometimes this is a trusted friend, family member, or spiritual teacher. Sometimes it is a professional advisor (coach, therapist, lawyer, accountant). Ask yourself if this is someone whose only motivation is to support your ability to make a good decision. Rather than giving you advice about what to do, this person will often help you by listening and asking questions that help you tap your inner capacity to be wise and resourceful.

Be Proactive. Let the mediator know if something needs to change to make the environment work better for you. This could mean a break, development of ground rules, or work in separate sessions (caucus) outside the presence of the person with whom you are in conflict. Ask for what you need in the process. Even the best mediator cannot read minds and hearts. If something isn't working, let the mediator know.

* From Getting to Yes, Roger Fisher and William Ury ** From Getting Past No, William Ury

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Private mediation is a voluntary process. An independent, impartial person (or persons) assists individuals, groups or organizations who are having conflicts and disagreements to communicate, explore options and negotiate a resolution.

All clients must agree on the final solution to resolve a dispute through mediation. Therefore, it is different from arbitration in which a third party acts as a private judge to make a decision. It is also different from litigation (where lawyers for the clients argue in front of judge or jury who makes a decision).

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TO INCREASE THE ODDS OF AN AGREEMENT. The people (difficult personalities and strong feelings) or the problem (complex issues or intractable positions) can make it difficult to reach a resolution. A mediator can improve the clients' communication to focus on the real issues in a productive, creative way. When there is disagreement and conflict, people get locked into positions and fight with each other in ways that are destructive, time-consuming and costly. All the energy spent on fighting leaves little for negotiating effectively and solving the problem. By meeting together and separately with the clients, a mediator can encourage them to explore their interests carefully and search for all possible options. Using a mediator increases the likelihood of a negotiated agreement by bringing the skills, creativity and influence of a trained, impartial third party to bear on the problem.

TO SAVE TIME AND MONEY. When you can't reach a negotiated agreement without assistance, you may consider filing a lawsuit to be an alternative. The litigation process can be expensive and time-consuming. There are no guarantees of positive outcomes from going to court. By pursuing litigation, you risk allowing someone else (judge or jury) to impose a decision on you. Even after you file a lawsuit, we know that eighty to ninety percent of court cases settle before trial. Unfortunately, many of these settlements only occur after the clients expend significant amounts of money and time in the process. There are many risks of loss of time and money that can be avoided if you can directly negotiate a solution where you retain some control over the outcome. A lawsuit can take a year or more just to come to trial. Then either side can appeal. Also, you often must spend time meeting with your lawyer to discuss the status of the case, prepare for depositions, and answer written questions from the other side. The time you spend preoccupied with the details of litigation is your time that is unavailable to further your personal or organizational goals. Trying mediation before filing a lawsuit is like trying medication to treat a health problem before you have surgery. Litigation, like surgery, is a more extreme choice involving additional cost, time and risks. We often conclude agreements in mediation within 3-6 weeks by meeting once a week for 1-2 hours.

TO KEEP YOUR OPTIONS OPEN. If mediation doesn't work, you can still file a lawsuit and go to court. Mediation is completely voluntary, and if it's not working, any party can end the process and move promptly into litigation.

TO REDUCE EMOTIONAL COSTS. Not only is litigation expensive and time consuming, but it can be very stressful. An important part of your life may be on hold while you are waiting for a trial date, wondering and worrying about the outcome. If the participants in the conflict are likely to have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering people. The emotional scars from fighting may never heal or they may take a while, but these scars can complicate future dealings or make it impossible to have a satisfactory relationship.

TO DEVELOP SATISFYING, LASTING AGREEMENTS. When the clients (who know their needs better than anyone else) work together, they can create a negotiated resolution for their unique situation. Judges and juries don't have any special wisdom or insight that lets them understand the practical and psychological needs you have in your family, school, and business affairs. Also, they may be restricted by legal rules that prevent them from addressing all aspects of the conflict to develop a real solution. In mediation, there are no arbitrary rules that limit your ability to deal with the whole picture. Your agreement can cover both legal and non-legal issues and is often more creative, comprehensive, and "on-target” than an outcome reached through litigation.

TO KEEP CONTROL OVER YOUR LIFE. It is natural to resent decisions imposed on us by others with power (legal or not). The goal of mediation is to reach an agreement that everyone can live with after all clients have a direct role in negotiating the terms and a chance to "clear the air." When the clients participate in this way they tend to have not only a sense of legal obligation, but a psychological sense that it is "their agreement," as well. This sense encourages feelings of personal, moral obligation and acceptance of the costs as well as the benefits. It is often necessary for one or more of the clients to follow through in some significant way to fulfill the terms of an agreement or a court order. When people agree with some degree of willingness to an obligation, they are more likely to follow through in good faith.

TO PROTECT YOUR PRIVACY. Mediation is a private process. There is no lawsuit filed at the courthouse listed in the newspaper for friends, employers/employees, bankers, reporters, creditors or others to notice, wonder about, and discuss. If the dispute doesn't involve any child custody or divorce issues, no public record of any kind may be necessary.

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I schedule an initial session with all the clients involved to answer any questions about the process, obtain everyone's willingness to mediate and sign an agreement covering the ground rules and the payment of fees and costs. Until this agreement is signed, we cannot discuss the conflict in detail. If everyone is ready to sign the mediation agreement, we begin to explore the issues at the initial session. Additional sessions are 1-2 hours each and are usually scheduled one week apart. Many conflicts can be resolved in 3-6 full sessions. Cases involving complex issues and cases with very angry, polarized clients often take longer. When I become familiar with your situation, I will give you my best estimate of the time that could be involved.

Generally, in sessions, the mediator will meet with all clients together. But, sometimes it can be helpful to meet separately with each client. It may be difficult for the mediator to get an open, honest assessment from one or more clients in front of others. Also, where the feelings and communications of the clients are particularly difficult and bitter, separate meetings allow the mediator to act as a buffer and keep the clients from escalating the conflict by focusing the back and forth communication on the issues to be resolved. It isn't always easy to keep the clients talking productively about the real issues.

The role of the mediator is to move the clients beyond personality clashes and historic grievances. Then communication can be improved so any future dealings may take place without repeating the difficulties of the past. By putting a stop to the fighting and petty quarreling, the mediator sets the stage for each person to look realistically at their interests and their negotiating positions. Taking some tension out of the clients' communication allows everyone to look at the areas of disagreement in more creative ways to seek previously unconsidered options.

Mediation works because it adds a new dimension to the negotiations. A skilled, experienced mediator can:

• increase communication and direct dialogue without jeopardy to the clients' basic bargaining positions or strategies;
• translate positions and proposals into understandable and straightforward language;
• move discussions into areas that have not been fully explored;
• simplify positions, attempting to identify what is important and what is expendable;
• contribute to each party's understanding of the other's view of the issues;
• improve the pace of the negotiations, slowing it down or speeding it up as appropriate;
• encourage constructive movement and conciliatory gestures;
• assist all clients to look realistically at the merits of their positions and assess the likely consequences of the alternatives to negotiated agreement;
• work to insure that no one becomes defensive or aggressive due to a misinterpretation or an unjustified emotional reaction; and
• make concrete suggestions that encourage reasonable, constructive, and creative proposals.

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We incorporate the rules into the mediation agreement that the clients sign. They cover such basic areas as entering the process with an open attitude, privacy and agreement not to subpoena the mediator or his records, and full disclosure of relevant information. In addition, specific rules can be added with the agreement of all clients depending on the nature of the dispute. (See Agreement to Mediate)

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At this time, there are no state licensed or certified mediators although many mediators come from a recognized professional background, such as law, psychology, or social work. You should ask mediators about their background and what specific training and experience they have that qualifies them to help you. As with most other professions, satisfied clients are the best evidence of competence. I encourage you to ask for client references.

The background of a competent, professional mediator should include:

• thorough knowledge of mediation, negotiation, and conflict resolution theory and practice;
• a solid understanding of psychology and human relations;
• excellent communications ability;
• flexibility, patience and a sense of humor; and
• familiarity with the issues involved in the dispute (or the ability to get up to speed on the issues quickly because of relevant professional background and knowledge).

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Mediation is an unregulated field. Some mediators have little in their background that qualifies them to skillfully intervene in disputes. See the qualifications page of my web site www.decisionres.com Consider several things about my background and training that may distinguish me from others you consider.

I have 31 years of experience spent mediating hundreds of disputes in a wide variety of situations.

My interdisciplinary professional background in law, psychology, organizational development, and financial issues enables me to work effectively complex situations involving legal issues, business/financial problems, and human relations/personality conflicts.

Many institutions have recognized my expertise in the field as a teacher, trainer, and author. I have trained more than 4000 lawyers, judges, teachers, and mental health professionals in mediation skills. I have authored a textbook, The Art of Mediation, used in the United States, Canada, and Israel.

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Mediators' fees vary a great deal. I charge by the hour for my time. My current rate is $175/hour plus NM gross receipts tax. My time includes the time we meet together and separately in mediation sessions, phone conferences, preparation between mediation sessions, and preparation of documents. If the case involves out-of-town travel, there may be additional fees for travel time.

In addition to my fees, I charge for certain expenses, approved by you in advance: mileage @ 53 cents/mile; copying*; long distance phone charges*; and messenger/federal express charges*. (* All of these expenses will be billed to you at my actual cost.)

In most cases, my clients pay at the end of each session. If some circumstances, I require a refundable deposit payable at the beginning of first session. If the case is finished before I have earned the amount of the deposit, I will issue a check for the unearned balance to the appropriate clients within five business days. If the mediation continues beyond the time covered by the deposit, we will discuss billing and payment arrangements.

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To take advantage of the mediation process while minimizing the cost, you must be willing to treat this as a priority. Prepare carefully for each session. Promptly gather all of the information we discuss. Keep your agreements to check with other people or produce documents. If you need to check with your lawyer or tax advisor, follow up so you are ready to address the issue and make a decision. The more leg work and homework you do between sessions, the faster the process moves along.

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In the U.S., we gain much of our historic knowledge about mediation comes from labor-management experience. About 40 years ago people in business, community services, and the mental health and legal professions began to use mediation in many different settings. These developments accelerated tremendously in the 80's. Some of these uses of mediation include: divorce and child custody cases; environmental and development disputes; car dealer-customer complaints; construction claims; employee grievances; special education-public schools problems; neighborhood controversies; and complex business litigation. Two major international corporations, IBM and Fujitsu, recently used mediation to resolve a trademark/trade secret dispute involving hundreds of millions of dollars in claims.

A few examples of mediation that I have personally conducted include:

• community problems such as growth/development conflicts, and siting of unpopular facilities;
• conflict between a producer and director involving property rights to a film production;
• threatened litigation among neighboring home owners in a planned subdivision regarding restrictive covenants and controversial improvements;
• divorce and post-divorce issues of custody, property division, tax liability, debts, alimony and child support;
• fights among boards of directors over policy and control of an organization;
• organizational and commercial problems including employer-employee disagreements, business owner-manager conflicts, staff problems, and partnership disputes;
• civil rights and discrimination complaints;
• construction problems, e.g. an architect and property owner disputing cost overruns and construction quality.
• family business issues including valuation, succession, and inheritance
• multi-party and complex disputes before and after litigation has begun

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Mediation does work, even in difficult and unlikely situations. But, it isn't a magic bullet. The mediator should be skilled. Still, the clients must be committed to work on the dispute and negotiate to get through the tough spots. When one or more of the clients is intent on causing physical, financial, or emotional harm to someone else, mediation is probably not appropriate. This is particularly true if there is recent history of physical violence and intimidation. If any of the clients have serious, ongoing dysfunctions such as alcoholism or drug addiction they may lack the level of responsibility required by the mediation process. If one party has significantly more power than the other it may be difficult to build a fair negotiating process. Yet, generally, any time the clients will be dealing with each other in the future, whether by choice or out of necessity, mediation should be seriously considered as a way to increase the possibility of cooperative and profitable future dealings. The importance of the future relationship may justify some risk, even when one or more of the factors just listed are present.

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I encourage all my mediation clients to consult with a lawyer, as needed, before they decide to try mediation and throughout the process. This consultation is particularly critical before signing any legally binding agreement resulting from the mediation. As a mediator (and lawyer), I cannot ethically represent any of the clients, and I cannot provide legal advice. With the consent of the clients, I can prepare a complete settlement agreement including the understandings reached in mediation, subject to all clients taking it to their lawyers for review and advice.

The role of the lawyer as advisor and counselor is very important. I consider the advice of a knowledgeable lawyer to be a form of insurance. It insures that: all the bases are covered; you understand the implications of the agreement; a detailed contract is legally binding and complete and you do not agree to terms that are fundamentally unfair to you given your legal rights and responsibilities. In most cases, the lawyers remain in the background while I work directly with the clients. They are available, as you need them, for consultation during the process and prior to making any final, binding commitment.

Some cases require court papers that only your lawyer can prepare for you. For example, in a divorce, orders must be prepared for the judge to sign. In pending lawsuits, you may need orders approving the settlement agreement and dismissing the lawsuit. I do not prepare any court papers in connection with mediated agreements.

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If your lawyer discourages you from trying mediation, make sure you understand his or her concerns and ask common-sense questions. Ask about his or her direct knowledge of the mediation process and how it has worked for clients in the past. Ask whether there are some safeguards that can be built in to the mediation process to address the concerns. Carefully consider the alternative to negotiated settlement. Particularly weigh the advantages and disadvantages of litigation. Ask for an estimate of the odds of success if you litigate including the possibility of an appeal by the losing party. Assess the length of time it will take to get the matter to trial and the estimated cost of litigating the matter through trial and any possible appeals.

Remember that trying mediation does not prevent you from going to court if the mediation does not result in a satisfactory agreement. However, adversarial representation and the commencement of litigation may increase the level of polarization and bad feeling between the clients. This often leads to the use of aggressive and defensive tactics that make clear communication and constructive negotiation difficult or impossible. When the clients forego the opportunity for direct communication with a mediator, they often must rely on a communication chain for current information on the dispute. "I'll tell my lawyer, who will tell your lawyer, who will tell you, and then you will respond by telling your lawyer, who will tell my lawyer, who will then tell me." It is easy for communication to be misunderstood or fouled up in this process, handicapping the clients’ ability to search for a resolution.

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The mediation agreement has specific contractual provisions that prevent all clients from using information developed during the mediation to prove that someone admitted something, agreed to possible settlement terms, or made an offer to settle. We do not have any court cases or laws in New Mexico that specifically address the privacy of mediation. However, courts in many different states have consistently upheld these kinds of provisions and forbidden a party from using mediation information to gain unfair advantage over another party. Judges want people to negotiate settlements instead of clogging the trial dockets of their courts. Therefore, they have been very clear in their support of settlement processes (like mediation) and the rules that prevent one side from taking advantage of the honesty of another during negotiation and settlement.

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