Category Archives: Mediation Training

The side I see: challenging assumptions, changing minds

It’s funny how the books we read when we are young stick with us. One such book for me was Robert Heinlein’s Stranger in a Strange Land, a science fiction story about a man, raised by Martians, who returns one day to Earth, and the clash of cultures and values that inevitably results.

What I recall most vividly were the Fair Witnesses, the licensed professionals that Heinlein invents for this book. Fair Witnesses receive extensive training in careful, impartial observation and assiduously avoid assumptions when called upon to provide their services.  In one memorable scene, one Fair Witness, Anne, demonstrates her unique skill to two other characters, Jubal and Jill. Jubal asks Anne, “That house on the hilltop — can you see what color they’ve painted it?” Anne  replies, “It’s white on this side.”

Jubal explains to Jill,

You see? It doesn’t occur to Anne to infer that the other side is white, too.  All the King’s horses couldn’t force her to commit herself…unless she went there and looked–and even then she wouldn’t assume that it stayed white after she left.

I never forgot what the Fair Witness said: “It’s white on this side.”  It’s unlikely that any of us is that precise or discerning when called upon to recount an incident or describe an object or problem.

Imagine the house on the hilltop. Now picture two people, each of whom stands facing a different side of the house, one person at the back, one at the front. Based on what they are able to see, front or back, each draws conclusions about the entire house – what color it is painted, what materials it is constructed of, whether repairs may be needed. But until each has left his original position and walked around the house, inspecting it from all sides, those conclusions remain suspect, based on incomplete data.

In teaching negotiation and mediation, I often discuss the scene from Heinlein’s book after administering an uncritical inference test known as “The Cash Register Exercise“. This exercise highlights the very human tendency to quickly fill in the gaps when information is missing and to draw assumptions about what we don’t know from what we do. (Click here to download the exercise and answer key in PDF.)

For those negotiating, information is indeed power. Examining issues from different angles can protect negotiators from bad deals or from missed opportunities.

For new mediators, the exercise and Heinlein’s story serve as a salutary reminder that our own assumptions can limit our effectiveness at the table. Cognitive error may blinker us, hampering us from helping those locked in conflict arrive at a more expansive understanding of the problems they face. The other lesson, too, is an obvious one: mediation offers fresh ways of looking at issues – from all sides, not just one, inviting parties to step away from their side of the house to see it in its entirety.

Seeing the house from all sides allows us to test or transcend our assumptions. Stepping away to gain a different view doesn’t mean giving up what you believe or need. With accurate and complete information, our conclusions can rest on surer ground. And it might even change our minds along with our vantage points.

Cafe Mediate, mediation podcast series, looks at what it takes to train, educate a mediator

In the third episode of ADR podcast series Cafe Mediate, I serve as host while professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, New York City detective and conflict resolution professional Jeff Thompson, and commercial mediator Victoria Pynchon debate the question, “What kind of preparation is involved in becoming a mediator?

You can pour yourself a cup or glass of your favorite beverage, pull up a chair, and enjoy the conversation in any of three ways:

Each month Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”)  features conversation among ADR practitioners about topics relevant to the business, practice, and future of our field.

Coming up next time: a two-part discussion on mediator certification that is sure to produce sparks. Caution: avoid wearing flammable material while listening to that one.

Thanks so much to my wise, talented colleagues for another outstanding discussion about the issues that matter.

Listening in at the mediation table: books that teach readers how to talk like a mediator

Ready to trade up from the role play simulations they participated in during their basic mediation training, new mediators look forward to the chance to observe actual mediations, where they can watch experienced professionals mediating real-world disputes. However, as dispute resolution expert and ADR blogger Tammy Lenski recently reminded her readers, finding such opportunities isn’t easy.

Always a collaborative spirit, Tammy was kind enough to share as a download on her site a text that she uses herself in teaching new mediators, What the Fly Heard: What Mediators Say Behind Closed Doors. Written by mediator, facilitator and conflict coach Sandi Adams, MSCM, this book provides the next best thing to observing a real mediation: it pulls up a seat at the mediation table and invites readers to listen in.

Tammy’s post reminds me of two other texts that also allow readers to be the proverbial fly on the wall of the mediation room. What follows is a closer look at all three of these texts – What the Fly Heard – and two more.

What the Fly Heard: What Mediators Say Behind Closed Doors, by Sandi Adams, MSCM, is the text that I wish I had in my hands during my own basic mediation training. Adams writes with authority and sincere encouragement, as she walks readers through the mediation process, offering numerous examples of suggested language along the way. One of the biggest challenges for new mediators is how to reframe intractable problems into issues that can be solved, a technique that invites disputants to see their conflict in fresh ways conducive to problem solving. Adams is ready with examples of difficult disputes, including one involving neighbors and another an Americans with Disabilities Act grievance, with suggestions about how to frame the issues that each present. As a bonus, she also includes information on the difficult issues of impartiality and confidentiality, and recommends resources for mediators committed to professional development.

Together with recommended “do’s”, Adams also warns about potential traps for unwary flies, including statements that can inflame or entrench. The sections titled “Flies in the Ointment – Sticky Comments to Avoid” and “You Could Get Burnt – Don’t Fly Near These”, give examples of statements mediators should avoid. It might have been even more helpful if Adams had suggested alternatives here that would be more appropriate mediator choices. However, Adams, a conscientious professional, makes clear that her book is not a teach-yourself text, with an important reminder for readers that

… this collection is not meant to replace training in any way. It is provided, in fact, as a follow-up to training and as a supplement to a training manual. The examples are to provide modeling only. Training, manuals, and supervised experience are needed to understand the reasons behind certain language and statements, when they might be appropriate and useful, and how to decide when and if mediator intervention is needed at all.

This book, now out of print but fortunately still available as an affordable (and ecologically friendly) PDF download on Tammy’s site, serves as a clearly written, concise orientation to the basics of mediation practice, making it an indispensable teaching tool for new mediators. Like a travel guide for international tourists, What the Fly Heard covers the essentials, and suggests useful phrases for each stage in mediation across a variety of settings, making it an accessible resource for the beginning mediator trying to gain fluency in what can seem like a foreign language. In addition, its realistic examples, many drawn from neighborhood, landlord-tenant, family, and small claims disputes, make this a most welcome addition to the training library of community mediation programs and a dependable text for those who supervise and train new mediators.

While What the Fly Heard is a concise, user-friendly traveler’s guide,  Challenging Conflict: Mediation Through Understanding, by Gary Friedman and Jack Himmelstein of the Center for Mediation in Law, is a mediator’s playbook, with detailed descriptions – and, amazingly, transcripts – of each stage of the mediation process, from contracting to agreement. This book presents the “understanding-based approach of mediation”, a model of practice which controversially rejects the use of the caucus.  It seeks to help parties understand their own interests and other perspectives more completely through direct dialogue, and stresses the importance of parties in conflict working together to make decisions and address the issues they face. It recognizes their joint responsibility for determining whether and how the dispute will be resolved, supporting parties in crafting solutions that are the product of fully informed deliberation. This model of mediation presents a radical departure from the mediation that lawyers and jurists are most familiar with, and will prove challenging, as the authors caution, to the disputants and to the many lawyers who are used to mediation as a kind of non-binding arbitration.

Across 10 case studies that involve a wide  variety of disputes  – from the San Francisco Symphony to a family-run ranch in South America – the authors walk the reader through the stages of mediation. Through the transcripts of dialogue that Friedman and Himmelstein provide, we hear the voices of parties and listen as the mediators, with patience, gentle persistence, and an abiding respect, help parties face emotionally charged conflict to find a sane, humane way out of the wilderness of their dispute. Friedman and Himmelstein illuminate their approach to the mediator’s stock in trade, active listening – a technique they call “the loop of understanding”, and throughout the book demonstrate it repeatedly and masterfully, using it to propel parties and discussions forward. How they handle strong emotion in the mediation room may come as a shock to mediators used to caucusing; Friedman and Himmelstein never seek to contain or cut off emotional expression; instead they see it as an opportunity to take the dispute to a deeper level, locating and untangling its roots.  One addition would make this book an even better resource than it is: an index, so that finding information is easier for readers who return to the book to revisit techniques or concepts.

One caveat: published jointly by the American Bar Association and Harvard Law School, this book is about mediating sophisticated cases involving legal issues and lawyers. The authors strive to “make the law people size”, ensuring that the law doesn’t eclipse other issues, and enabling parties to use the law to inform not control their choices. Nonetheless, discussion of the law plays an integral part in this model of practice. Mediators uncomfortable about discussions about law and legal risk analysis may find the emphasis on the importance of having the “legal conversation” off-putting.  The authors prefer to have that conversation first, ahead of discussion of other issues – although in one case the reader listens in as parties refuse, pushing the authors to reluctantly postpone the discussion of legal issues until later.

If such emphasis leaves you uneasy, be assured that Challenging Conflict is more than a text on mediating legal disputes. And whether you agree with the authors’ approach to the caucus or not, their emphasis on the human dimension to conflict makes this a book worth reading. The numerous transcripts throughout the book demonstrate the complexity and nuance of conflict and the artistry of the mediator’s craft.

Although the case studies involve disputes over complex interpersonal and business issues, potentially intimidating for beginners, this is still a book with something to offer mediators at all skill levels, from the new mediator to the experienced trainer looking for resources for his or her students. The transcripts throughout allow readers to listen in to not just phrases or snatches of conversation, but to entire conversations between mediator and parties, so that readers hear how the mediator responds to what is unfolding in the moment, which gives a realistic sense of the ebb and flow of dialogue at the table. They offer numerous examples of “mediator speak” as the authors demonstrate their skills in helping people find solutions to the seemingly intractable problems they face.  These detailed transcripts serve as the next best thing to being a fly on the wall in a real mediation.

A third book also invites readers to sit at the table: J. Anderson Little’s Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes. What makes this book unique is its focus on the dynamics of traditional bargaining in issues over money in litigated cases, but with a twist: providing the reader with advice on mediating such disputes in a facilitative not evaluative way. Transcripts throughout the book give real-world examples of the negotiation roadblocks that await and how a facilitative mediator can subtly but surely generate movement and overcome impasse when talks seem stalled out.

This book serves as rebuttal to anyone who thinks that money disputes in civil litigation are best resolved through evaluative mediation – with its heavy reliance on caucusing, dominance by lawyers, lack of direct discussion between parties, and narrow focus on legal issues, which ADR scholar James Alfini once complained “sacrifices effective justice for efficient deal brokering“. Little proves that a facilitative approach can work with money disputes, explaining his own personal philosophy about mediation practice, which is reflected throughout this book:

Before we mediators strive for settlement; before we strive for solutions; before we strive for empowerment, recognition, or transformation; before any of these, we would be well served to strive first for understanding.

Amen, brother. Recognizing that sometimes people will resist integrative approaches to bargaining, Little offers insights into the rhythms of distributive negotiation, decoding for mediators the messages embedded in proposals, rejections, and counterproposals, with recommendations on how to facilitate party movement in a range of common bargaining situations. Using numerous examples, Little explains how familiar mediator tools, such as questioning, reframing, brainstorming, and observations can be put to good use. If you’ve ever wondered what to do when one party says, “I’m not going to bid against myself”, struggled with the question of “Who goes first?” in making an offer, or felt stymied when a disputant protests, “Do they think I’m stupid?”, this is the book for you.

Little won me over immediately with his express rejection of any mediation orthodoxy that anoints a one-size-fits-all approach or declares there to be but one Right Way to mediate – something which critics of Challenging Conflict will no doubt find refreshing. Instead, he assures readers that “the thesis implicit in these pages is that there is no single model of the mediation process that is useful in all types of cases”. Little’s approach emphasizes flexibility and an attuned sensitivity to parties’ states of mind.

Little writes to empower two audiences: mediators with experience in civil litigation but who feel that they are mere “messengers” doing little more than helping parties “swap proposal after proposal” but who strive to be more to their clients; and mediators whose work focuses on the “preservation and enhancement of relationships” rather than the litigated case. For the former, he declares his goal to be “to help them better understand the dynamics of money negotiations,…to build a model of the mediation process that will serve as a road map when traditional bargaining is unavoidable, and to describe how they can assist the parties with traditional bargaining in a facilitative, rather than a directive, way.” For the latter, Little understands that even in family matters “there will be negotiations about money that resist the mediator’s best effort to reframe them into problem-solving discussions.” For these mediators, Little modestly expresses his hope that they “will find in this volume a nugget or two to serve as a supplement to other approaches that are more appropriate for mediations conducted in family or workplace settings.” Indeed they will.

Although this is not a book for new mediators, I recommend this book (and also Challenging Conflict for the same reason) to participants in the basic trainings I teach, particularly those who have experienced only evaluative mediation conducted primarily through caucusing and who doubt that a facilitative approach could work “in their world”.

Mediation credentialing: what about mediation trainers?

questions for the mediation fieldMuch discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill.  That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.

Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public.  In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air – an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?

As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.

Articles, videos, and exercises online for the mediation trainer

Stuff online for mediation trainers

This Thursday and Friday in Boston I’m teaching a program on the essentials of mediation training with Charles Doran, executive director of Mediation Works Incorporated. In preparation for the program, I’ve been pulling together materials on mediation and negotiation training, including the following articles, videos, web sites, and exercises available online. The exercises at the end are ones I’ve collected here on Mediation Channel.

Reading (all in PDF)

Videos

Web sites

Exercises and miscellany

Mediation Train the Trainer Institute held in Boston Feb. 26-27, 2009

Mediation Train the Trainer Institute BostonIf you’re an experienced mediator who wants to master the essentials of effective mediation training, please join me in Boston for the Mediation Works Incorporated Train the Trainer Institute, on Thursday, February 26 and Friday, February 27, 2009.

I’ll be teaming up with mediator, trainer, and ombuds Charles Doran, MWI’s executive director. This program covers:

  • Program Design and Marketing – How to define and meet the needs of participants; staying focused on goals and outcomes; the logistics of putting on a successful training; programmatic and administrative issues; internal and external program promotion; translating experience into basic concepts that trainees can internalize and practice; delegating pre- and post-training responsibilities within the training team; designing and analyzing diagnostic forms.
  • Delivery - Presenting concepts with impact; selecting and using different delivery media; how to be a facilitator, leader, coordinator (all at the same time); setting up the room; facilitating skill-building exercises; fostering group participation and self-reflection; coaching role-plays and providing feedback to trainees; dealing with difficult participants.
  • Evaluation and Follow-up – Designing effective feedback and evaluation methodologies; delivering feedback to participants during and after the program; incorporating lessons learned into future programs; and more.

The highly interactive, hands-on program will be held at the historic Union Club on Boston’s Beacon Hill, at 8 Park Street.

Registration and more information is available at the MWI web site. I hope to see you there.

Conflict style inventory gets upgrade, free review copy available

Kraybill releases 2008 upgrade for Style MattersConflict resolution expert, mediator, and peacebuilder Dr. Ron Kraybill has asked me to let readers know that he has released a 2008 upgrade for Style Matters: The Kraybill Conflict Style Inventory through the company he founded, Riverhouse ePress.

With over 120,000 users, Style Matters has helped business managers, organizational consultants, and conflict resolution trainers worldwide teach personal conflict management skills. What distinguishes Style Matters from other conflict mode instruments is its commitment to cultural sensitivity, providing different instructions for collectivist and individualistic cultures.

As he has done in the past with previous releases of Style Matters, Dr. Kraybill generously offers a free review copy for downloading, along with a trainers’ guide (PDF).

Attention mediation trainers: ADR scholar shares teaching technique for mediation and negotiation classes

Bond University professor and world-renowned authority on mediation John Wade generously shares a useful technique for teaching conflict resolution and negotiation in “Re-inventing the Pyramid: A Process for Teaching and Learning in Mediation and Negotiation Courses” (available as a PDF download). Professor Wade describes the process, provides logistical hints, discusses its benefits, and alerts readers to its disadvantages to enable mediation and negotiation trainers and teachers to use this technique effectively in class.

A big hat tip to Bill Warters at the Campus ADR Tech Blog, one of the best sources online for tech news and tools for conflict resolution teachers and trainers.

Jumping to conclusions? Take the Cash Register Test to find out how much

Jumping to conclusions

For many years I have used the following exercise in trainings and workshops on conflict resolution, communication, and negotiation. Known as “The Cash Register Exercise”, it is adapted from “The Uncritical Inference Test” created by William V. Haney, Communication and Organizational Behavior: Text and Cases.

To complete the exercise, read the following story. Below it are 12 statements about the story. After you read the story, determine whether each of the 12 statements is

  • T – true;
  • F – false ; or
  • ? – you do not have enough information to determine whether the statement is true or false

Allow yourself no more than 5 minutes to complete the exercise. On Monday, October 13, I’ll reveal the correct answers. (In the meantime, please try to resist the temptation to google them ahead of time.)

Ready? Here goes:

The Cash Register Exercise

The Story

A businessman had just turned off the lights in the store when a man appeared and demanded money. The owner opened a cash register. The contents of the cash register were scooped up, and the man sped away. A member of the police force was notified promptly.

12 Statements about the Story

  1. A man appeared after the owner had turned off his store lights.
  2. The robber was a man.
  3. The man did not demand money.
  4. The man who opened the cash register was the owner.
  5. The store owner scooped up the contents of the cash register and ran away.
  6. Someone opened a cash register.
  7. After the man who demanded the money scooped up the contents of the cash register, he ran away.
  8. While the cash register contained money, the story does not state how much.
  9. The robber demanded money of the owner.
  10. It was broad daylight when the man appeared.
  11. The story concerns a series of events in which only three persons are referred to: the owner of the store, a man who demanded money, and a member of the police force.
  12. The following events in the story are true: someone demanded money, a cash register was opened, its contents were scooped up, and a man dashed out of the store.

To pique your interest further, I should warn you that in all the times I have used this exercise, only twice has anyone gotten all the answers right. If you’d like to print out a copy so that you can write your responses down, click here to download a PDF version.

Good luck, and click here for the answer when you’re ready.

Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?

Mediation careers: road to success or straight to the poorhouseLast summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:

Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.

Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.

Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.

Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.

Von Wrangel asked,

Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?

Wellington mediator Geoff Sharp points his readers to a study recently released that provides the statistical evidence for von Wrangel’s concerns. In a report titled, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, presents data that the supply of mediators far outstrips their demand and paints a distressing picture of the realities of mediation practice for the hundreds of aspiring mediators who emerge each year from trainings and degree programs across the U.S.

Velikonja singles out mediation trainers for some sharp criticism:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

She even anticipates the counterargument mediation trainers often trot out:

While it is true that mediation may be a useful skill in our work and familial lives, it is likely that fewer people would spend hundreds or thousands of dollars on mediation training without the expectation that training could lead to a career change.

I at least am one mediation trainer who is brutally honest when people contact me for advice on becoming a mediator. I cringe every time I hear someone tell me that they plan to leave a well-paying job to become a mediator as soon as they finish their basic mediation training. I routinely tell people not to quit their day jobs, although many of them seem determined to do so, buoyed up by an unreliable optimism. And I despair when I get the inevitable email from a recent university graduate with a degree in conflict resolution, desperately looking for work as a mediator and frustrated because their college placement office could not help them find a job.

I don’t believe (yet, at any rate) that we should stop training people to be mediators. I still believe that the skills are useful in workplace, civic, and family settings. But Velikonja’s report should be required reading for anyone who is thinking about becoming a mediator. And I hope mediation trainers take the time to read it, too.