When Sadness Comes
When sadness comes we wrap ourselves
In the tender arms of friends and family.
A parent dies and is no more.
So hugs must come from others
Who give love where love is lost.
The pain of loss is sharp
And hurts the heart.
But loving memories lift too,
Like the tender arms of all who love you.
Decisions and revisions, and applause.
Like many, I have been watching the news and hearing and reading the responses to the Susan G. Komen Foundation’s recent decision to stop funding Planned Parenthood.
Now it appears the Foundation has reversed its decision and WILL continue funding Planned Parenthood through grants. See, http://www.npr.org/blogs/thetwo-way/2012/02/03/146344671/komen-foundation-now-says-it-will-continue-grants-to-planned-parenthood?ft=1&f=1001
I am so pleased to see this revision. It is an example to share with the world.
Also, according to the cited blog post from NPR, above, “In the statement from CEO Nancy Brinker, Komen also says ‘we want to apologize to the American public for recent decisions that cast doubt upon our commitment to our mission of saving women’s lives.’”
I am also so pleased as well to see this apology.
Both the reversal and the apology show the human spirit at its best. And this is an example for those mired in conflict in mediation.
“It IS possible to change direction, or to change your mind,” I sometimes say in mediation. “You don’t need to continue to box yourself in on your present course, which may prove destructive.”
Although difficult to do, for fear of “losing face” among other things, sometimes, as with Komen, people WILL change their minds.
In so doing, they find something better for themselves, and each other, in lieu of the conflict in which they are engaged.
It is not a sign of weakness. To me it is a sign of strength.
And I applaud the character and wisdom of a person (or company) that, on reflection, can choose another (better) course.
There is time [and there is a place] for decisions and revisions.
Sometimes, it’s in mediation.
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse.
T.S. Eliot (1888-1965), The Love Song of J. Alfred Prufrock
What if it’s a mental health issue?
This post is not about mediating disputes under the Americans with Disabilities Act. Neither is it about Special Education mediations (which are fascinating, I know, as I have conducted them). Rather this is about when or if one of the participants in the mediation has real or perceived mental health issues.
I began thinking about this today while reading a thread in a LinkedIn group to which I belong. The thread started with the question, “What do you, as the mediator, do when an individual has a clear Mental Health Disorder but has not self-disclosed this information?” The question was posed by Danielle Brown, a colleague in Ontario, Canada.
The responses were interesting and wide ranging. Some of the respondents were trained in psychotherapy as well as mediation. Some were trained in mediation or law but not psychotherapy, which describes most of the mediators I know in our community.
Ultimately, the responses coalesced into the idea that the mediator should adjourn/recess/end the mediation if and when it is determined that the participant has (actual or perceived) mental health issues that make it unproductive or harmful to continue.
But it’s one thing, as suggested in the question posed by the Ontario mediator, when the mediator has the strong palpable feeling that there is “a clear Mental Health Disorder.”
It’s quite another thing when the mental health issues, if they even are mental health issues, are so subtle or akin to the behavior of highly emotional, stressed disputants in conflict anyway, that they are nearly impossible to perceive, possibly not until well into the mediation session if ever.
This latter scenario was described in more detail in an online article entitled “Disabilities And Mediation Readiness In Court-Referred Cases: Developing Screening Criteria And Service Networks” by Patrick G. Coy & Tim Hedeen. It is available at http://www.mediate.com/articles/cohed1.cfm.
In that article, the co-mediators suggested that there were hints of something being amiss in their mediation, but they couldn’t see “the small red flags [waving in the] gentle breeze,” and no one in their community mediation program had pre-screened for mental health issues before they began.
Nevertheless, the co-mediators in the cited article ultimately discerned, to their considerable dismay it appears, that their disputant lacked the social skills or the mental health to function adequately in a highly-charged facilitated negotiation process.
In reflection, the co-mediators suggested that mediators can look for clues such as these, so easily overlooked or misinterpreted in a conflict which is emotional anyway:
“severe mood swings, consistent behavior so inappropriate as to be more than merely disruptive, severe withdrawal from the process, ongoing challenges to mediator actions or suggestions, substantial behavioral changes within the mediation process, the continued and blatant inability to adhere to simple ground rules, the repeated failure to focus on an agreed-upon topic, consistent misinterpretation of the intention and meaning of mediator statements, and a persistent reneging on decisions painstakingly arrived at during the same session.”
Ultimately, in the article’s case study, once the inappropriateness of mediation dawned on the co-mediators, because of real or perceived mental health issues, they ended the mediation without agreement and escorted the parties out separately to avoid further complications.
That is probably as much as any mediator can do when faced with unexpected possible mental health issues, but the possibility is something additional to be wary-of in the twists and turns of mediation practice.
Expressions of Concessions
Swallowing one’s pride
Falling on one’s sword
Taking the heat
Taking a haircut
Stepping up to the plate
Taking a hit
Eating humble pie
Eating crow
Feeling the pinch
Owning up to it
Paying the piper
Facing the music.
(I love the imagery — and the underlying honesty of it all.)
“I don’t have that kind of money.”
Sometimes there are mediations in which it becomes apparent that the claimant (the person seeking money) should probably receive some money: the claimant probably has been harmed in some way by the respondent (the person that would have to pay).
In some of those mediations, however, a respondent will say, “I just don’t have that kind of money” after hearing the demands of the claimant.
This could be a true statement, or not.
In two recent unrelated mediations, the respondents said in effect, “I just don’t have/can’t pay that much.”
The respondents each countered with substantially less which the claimants refused.
In both cases, the claimants heard about the cost of getting or having “justice” and/or the ability to collect. Similarly, the respondents heard about the cost of defense and the economic risk and consequence of losing.
In both cases, even after discussion, both sides remained rigid in their settlement proposals, and the mediations sessions ended without a settlement agreement.
The question is: “Who was being unrealistic?”
In one case, it was possible that the respondent did in fact have more resources than implied in the negotiation (ascertainable of course by an asset search), and it appeared also that the claimant had the resources to pursue the litigation. So, it is possible that the respondent was being unrealistic, i.e., unable or unwilling to face the possible consequences going forward versus the cost of avoiding them.
In the other case, really it just didn’t appear that the respondent had the resources to make the kind of settlement that the claimant wanted. Also, frankly, it appeared that the claimant did not have the resources to continue the litigation either. There, it was possible that the claimant was being unrealistic, not only about the cost of getting justice but also the likelihood of any substantial recovery from a possibly destitute litigant.
In both cases, the claimants clung to their senses of “justice” and “fairness,” which, for them, demanded more than their respondents offered.
What was more interesting, however, was how individuals in each mediation could not face the economic realities before them to choose a way out of the dispute.
People perceive fairness differently.
I like to ask at the beginning of a mediation what people would like to get out of the mediation session. Many answer that they would like a fair settlement. I am always interested in this response. What does it really mean?
I have observed that fairness is perceived differently by different people.
Attorneys, who often drive the negotiation, more often than not base their perceptions of fairness on what they have learned about the law, what the cases or statutes say should lead to a fair outcome.
This is not surprising for one with a legal background, but that’s not always they way others perceive fairness.
I often mediate “partition” lawsuits. They are disputes between co-owners on how to divide up the net value of real property that one or more no longer wants to own with the other or others. In these cases, I see “fairness” expressed differently, often by cultural groups of which I am not a part. (I risk making generalizations here, and that is not my intent, and so apologize in advance, just in case. The following are only examples of actual mediations among families of different backgrounds.)
In one partition case, a large Southeast Asian family lived together, maybe 12 or 13 people altogether. They all believed they owned the home although only one person was on title. One of the residents wanted to be apportioned a greater amount of the net value of the property after the contemplated sale, because of her contributions to the family: she would leave work early each day to come home and make dinner for all of the rest of the family. Consequently, her view of fairness related to the relative value of what people contributed to the family not necessarily to the property.
In another partition case where the co-owners shared an Hispanic or Latino background, fairness was measured among them by which family member needed the money the most from the property.
In yet another family from yet another cultural group in Los Angeles, the question of who would buy out whom (and therefore continue to own the property) was answered by which person was more responsible than, and generous to, other family members, i.e., who was still willing to house and take care of an elder in the family.
Ultimately, as I say in mediation, I believe that fairness is defined by the parties themselves: it is whatever they agree is fair, whatever ultimately works for them.
Consequently, these examples help show disputants and even lawyers that the outcome may be fair even if not exactly what the law otherwise would provide, and that mediation is a tool to give value for the individuals’ differing views of fairness.
In the Driver’s Seat at Mediation
With a nod to the Hertz slogan “[putting] you in the driver’s seat,” this piece nevertheless is not about personal injury disputes.
Neither is is about the mediator being in the driver’s seat and leading or controlling the process.
This piece also is not solely about the central theme in mediation of “self-determination,” although self-determination is implied in the image of the driver’s seat as well as the choices inherent from being there.
Rather, this piece is more about “where to look.” It is about helping people change their focus from “looking back” at what happened to “looking forward” to the solutions and peace.
I ask people in mediation to imagine themselves in the driver’s seat of a car. I suggest that they have choices about where to look.
Most people in a dispute are focused on what happened or didn’t happen that brought them to this moment. They replay these past events over and over in their minds, sometimes to the exclusion of all else. I suggest that that is akin to looking solely into the rear view mirror while in the driver’s seat.
The problem, as we all know, from staring into the rear view mirror is that we do not see where we are going.
I suggest that if, instead, people look out the front windshield, they will see where they can go.
The road ahead is uncertain. The safest route is settlement. The risks, costs and dangers of the litigation will have been avoided.
Or, they can choose the more dangerous unpredictable toll road ahead if they continue to litigate. They might choose that route, but only if they are well prepared for it – with the appropriate money for the trip and with a road map from their counsel for what really might be ahead of them.
If they look ahead, they can choose their route (self-determination).
On the other hand, if they continue to stare into the rear view window only, looking back only at what has happened, they can drive off the road. Perhaps that is the most dangerous. They need to look where they are going.
Thus, the driver’s seat image lends itself to the shift from past to future, from behind to ahead. This is a necessary perspective for mediation inasmuch as mediation is always about the future, what people can do, or not do, that serves their interests best.
Kibitzing
I like to kibitz, to make small talk, at a mediation before we get started.
First, it’s a great way to get to know other people.
Second, and more importantly, I think it helps to break the ice, to warm up the room, maybe to help ease the tension or stress of the disputants coming to the mediation.
I talk about all sorts of things.
I talk about the usual traffic and weather, I talk about family and I talk about other things that interest me (not sports), like …
the book I’m reading or one I have read, or
the latest episode of Downton Abbey or Nova (I like PBS), or
even the volunteer work I do or have done.
I ask people about themselves as well, what they do for a living, what they like to do for fun, what they will do this weekend, whatever.
People like to talk about themselves, and it relaxes them because it’s (usually) a safe topic.
I have to be careful what I ask the lawyers who attend the mediation.
Lawyers love to tell “war stories” about this case or that.
Sometimes, others run out of patience during these “war stories.” But lawyers are proud of the work they do, and allowances must be made for everyone.
And sometimes there are lessons in the “war stories” that will be useful to highlight litigation risk later in the conversation. So, war stories can be important.
I try to stay away from discussing politics.
In an election year, I think this will be a hard thing to do.
And religion, that can be a problem subject too, although much of politics appears to be religion these days.
Well, I’d better not talk about that any further.
Maybe it will rain this weekend. What do you think?
