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Bias(es) in Mediation

{Read in 4 minutes} Anti-bias training has been around for a long time. Because of that, people sometimes respond to it a bit cynically, with a “been there-done that” shrug. Most discussions of bias tend to focus on racial and gender biases of various kinds. While such biases certainly exist, people have, fortunately, become more sensitized to them and will attempt to consciously mitigate them when possible. However, that leaves open a wide range of other biases that most of us carry but receive scant attention in anti-bias training programs. These potential biases include the following

“I Feel Like You’re Not Hearing Me”

{4 minutes to read} My guess is that many mediators occasionally hear this in one form or another. Why is that? Is it because the mediator isn’t carefully listening? Do the parties and/or attorneys not fully understand the process and therefore have unmet expectations from the mediator? Some combination of the two? Or something else altogether?

In my experience, a party or attorney stating such a concern is usually expressing frustration that the mediation isn’t heading in the direction they want. If it were, the other side certainly would have given in by now, and the case would be over.

The success of any mediation hinges on trust—trust in the process and, most critically, trust in the mediator’s impartiality and attentiveness. However, when a party or their attorney believes the mediator is not truly hearing their concerns, significant difficulties can arise, threatening the integrity and effectiveness of the entire process.

What should the mediator do? And what should a party or an attorney do? There can be a delicate dance of sorts that goes on in any mediation. People don’t want to antagonize the mediator, whom they want to push for a favorable result. But they also want to know their position is being presented with full force. If a party feels their voice is being ignored or diminished, they may withdraw from active participation, become defensive, or even escalate their emotional responses. A once constructive atmosphere can devolve into adversarial tension. This not only delays progress but also undermines the mediator’s efforts to guide the discussion toward resolution.

And what about the mediator? In the abstract at least, they are supposed to be above it all, not invested in an outcome, nor wanting to be manipulated by the litigants or their counsel. Do mediators flinch when a party accuses them of not listening or failing to convincingly put forth their position to the other side? Or giving too much credibility to the other side’s positions? Sometimes, people blame the messenger and want to know you’re on their side. Whatever the bubble over the mediator’s head says (These people are just jerks…. I already told them twice….), the mediator needs to put ego aside and address the accusation.

There can be many facts and positions to keep straight during any mediation. Positions can change. New facts can emerge. Sometimes facts can even change upon further exploration. The beliefs of a participant, even if considered off base, need to be understood and responded to in a way that makes it clear the mediator has heard them. They reflect some aspect of the process. Here is where some basic reframing may be helpful. “So in other words, what you are saying is….” One doesn’t know what the response to this will be, but it may confirm a party’s position or it may force some modification of it. And of course, the mediator may have indeed missed or misunderstood something.

Regardless of the cause, it is crucial to set aside personal feelings and discuss the issues of the perceived slight. That will help restore faith in the mediator and in the process. Only then can the mediation proceed toward a successful resolution.

Gary Shaffer
Shaffer Mediation
Gary@ShafferMediation.com

Condo Association Warfare

Condo Association Warfare by Gary Shaffer

{4:30 minutes to read} A friend recently told me about a situation involving her neighbor at the condo development where she lives. She and the neighbor were never close friends, but they were friendly toward each other, saying hello and chatting when they would see one another.

About a year ago, however, things began to change. The flowers my friend had planted in her front yard for several years were now not to her neighbor’s liking. And the awning that provided shade on the rear of my friend’s unit, which faces west and can get hot in the summer, was suddenly a violation of the condo rules. The awning had been up for about seven years.

Family Disputes: Selling the Family Home

{3:54 minutes to read} Our mental attics can store lots of emotional content when it comes to a family home. For many families, selling that home may be sad, but not otherwise a source of contention. It can even be a relief. But for others, selling the home can create conflict. While there can be an almost infinite source of such conflicts, mediation can provide a way to ease or even resolve them.

Money and emotion are almost always intertwined in a dispute over the family home, and any attempt at resolution must address both. Ideally, the issue is addressed before a dispute arises:

Mediating Family Business Disputes

{3:42 minutes to read} In my previous blog post on this topic, I described some of the general issues that arise What Would a Successful Family Mediation Outcome Be? by Gary Shaffer during a mediation involving an intra-family commercial dispute. These included:

Resentments built up slowly over time;
Allies and enemies;
Divergent recollections; and
Emerging “alternate truths.”

Intra-Family Commercial Mediation: Get Back At or Get Back Together?

{2.54 minutes to read} All happy families may be alike, but all families with intra-family disputes involving money are unhappy in their own way. Resentments build up slowly over time, people develop allies and enemies, recollections diverge, and “alternate truths” emerge. Each family has its own unique set of alternate truths that must, at a minimum, be recognized for a mediation to be successful.

The goal of an intra-family mediation is not to get family members to agree on a single truth. This may be emotionally impossible, and recollections can be fuzzy and subject to interpretation. Words can be stated in many different ways and with different intent. What was meant one way may have been taken in another. 5, 10, or 15 years later, the recordings are lost. And to some extent they may be irrelevant.

Co-Mediation: Does it Make Sense?

{3:18 minutes to read} Mediations come in different flavors. Most typical is a single mediator who meets with the parties and includes joint as well as individual sessions.

Co-mediation is sometimes used in divorce or family matters, usually with a male and female mediator working with a male and female couple. The thought is that such an arrangement will lessen the possibility or the perception of gender bias. Experienced mediators are careful to avoid any bias as best they can or, are at least able to pick up when a particular spouse/partner is sensing some bias.

Getting Divorced but Living Together?

{3:54 minutes to read} When most people get divorced the last thing they want to do is continue living together in the same house. One of the prime reasons to get divorced is so you no longer have to live with that crackpot, jerk, cheat, ne’er-do-well, liar, energy-sucker.

When there are no kids, this is usually an easy decision. Hasta la vista, baby. But life isn’t always neat, and when there are children and limited resources, keeping the family home may be the best way to harness those resources and maintain stability.

Bottom Lines: Don’t Reveal, But Do Discuss

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. You can read that here.

My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

For all sorts of reasons, there are cases that can’t settle at mediation. However, the majority can and do eventually result in a settlement. Most of those could be resolved through mediation.

Commercial Mediation: What’s Your Bottom Line?

{3:06 minutes to read}

When, if ever, do you let a mediator know your bottom line?

There are three answers to this question:

Never.
When you say, “Okay, we can settle for that.”
When it’s 6:30 p.m., and you (or your attorney or your client) have a 7:30 train to make. You know you’re pretty close to an agreement, and walking away now is painful given the time and money you’ve spent at the mediation. You don’t want to leave with the case unresolved, especially since you’ll have to wake up in the morning, and probably for quite a while, with the case still around.

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