Some things are Better Left Unsaid

     I lost an Uncle this week unexpectedly.  My father's youngest brother was a figure larger than life.  He was our family Accountant, bon vivant, treasured confidante and friend.  Through the years, he held the position of the "go to" consultant for most important decisions relating to business, finance, vacations and celebrations.  He was the guy who referred the family to virtually all professionals needed throughout my life:  bankers, lawyers (for adoptions, estate planning or litigation), investment counselors, even wine merchants, caterers and home decorators.  His loss will be felt deeply by all who knew and admired him. 
      He had an opinion on everything and was willing to offer it.  But here is what I learned last night from my older sister:  he was also willing to offer up that not all disagreements were meant to be fully vetted, discourse engaged in, transparency revealed and happy conclusions derived through consensus.  Indeed, it was his belief that some things were better left un-resolved, for the sake of peace in the family, or mutual respect or deference.  Essentially, he was willing to proffer that we might not accept his opinion or view of things, and that he would never accept ours, and that it was okay to disagree.
     I never had this conversation with my Uncle before his passing:  yet another position that remained unsaid.  Yet, I can see great wisdom and applicability in mediation.  Indeed, not every dispute ends in agreement.  Most disputes end in a rough resolution of the case that does not concede that the adversary was right or that one side or the other has been convinced they were wrong.  Most disputes end in a tacit agreement that the parties prefer to resolve the dispute quietly and confidentially rather than air the dirty laundry in court and expect that a Judge or jury will decide who is right and who is wrong and what damage has been caused.
     My Uncle was right, of course.  Some things are better left unstated. 

Make a Connection with Each Participant

     Over the weekend, I visited the Ronald Reagan Library in Simi Valley, California.  Though I was not a huge fan of the former President, coming from California, I remembered his early days as an actor (or at least re-runs of the Western movies watched by my mother and grandmother!) and then I remember his first election as our Governor.  Though many were surprised, his training as an actor, like another famous former Governor, gave him the gift of being a terrific orator.  He was comfortable on screen, delivering lines and being warmly embraced by the world of his viewers.  The Library momentos and film clips confirmed it.  In nearly every "take" he was seen to be addressing not a huge general audience, but me, the listener, as though I was the only one in the room.  Last Sunday, the library was extremely crowded with tourists, school children and locals.  Yet, I came away feeling as though I had made a new connection with a public figure who I had never met!

     The lesson for mediators and litigators is to work towards making a connection with every participant with whom you hope to make an ally.  Physically, stand a little closer to the one who you wish to engage.  Make direct eye contact.  Listen and respect each varying point of view.  As Lincoln famously said, ""Discourage litigation. Persuade your neighbors to compromise whenever you can.  There will still be business enough."

     To President Reagan's credit, he was an articulate spokesperson for peaceful transitions and stood in exactly the right place to take credit when the world events revolved in his direction.  He was everybody's ally in ways that serve his diplomatic efforts incredibly well.

Developing a Rapport with Every Stakeholder

It's important to understand something of our multi-cultural environment when mediating.  For example, many, but not all, cultures value the tradition of making eye contact with each individual, at their own level.  Others, like some Asian cultures, resist making eye contact, particularly where there is an age disparity between those in conversation.  Instead, averting the eyes or bowing to show respect may be indicated.

In mediation, it is always valuable to take a moment to reflect upon the particular cultural customs the disputants may hold and then engage in whatever appropriate methods there are to develop rapport.  Sometimes this takes a little small talk until you can find some commonality:  a love of pets, or travel or fashion, for example.  Other times, it takes a deliberate sitting at the level of the disputant (as pictured above, though I'll admit I've never had to stoop quite this low!).  Sometimes a genuine gaze into the eyes of the disputant will click and they will instantly feel heard, respected and understood as they reveal the core of their particular truths.

This week, I mediated a sexual harassment claim by a young woman who had immigrated to the United States and worked in lieu of rent at a Hotel.  Though she was clear in her mind about the boundaries and limits of what was allowable and not allowed at work, the laws in our State were not quite as explicit.  In other words, because of the blurred lines between working and living, her social life became part of her work life and the sexually hostile work environment that she claimed to have endured, was primarily a sexually promiscuous living situation instead.  She needed to be heard, and although it was challenging to understand her, given her thick accent and use of foreign expressions which didn't translate easily into English, I listened.

Her employer, a young entrepreneur who owned and operated several of these establishments, had no idea that his managers and staff were quite so involved in one another's personal lives.  They were regularly posting photos of one another on Face book, throwing birthday parties for one another and even loaning money to each other.  In his case, it was only by leaning out (as opposed to what Sheryl Sandberg advocates for women, "leaning in") that I could truly hear all of the conflict between these two erupt.  I figuratively and literally backed away from the conference table and just let each of them tell me their story for hours.  It was, after all, their dispute, not mine!

It was only after they were permitted to safely and fully express themselves to someone who had gained their trust by listening intently and looking them in the eye without judgment, that the matter could be finally and fully resolved.  The time and effort I put in at the outset to develop a rapport with each of the stakeholders (including the lawyers who represented them) paid off for all involved.

Avoid Taking Shortcuts in Mediation

       There is always a tension between the desire to get to the agreement and the arduous process of negotiation that takes you there.  This week, I had two very similar lawsuits:  both for wrongful termination in discrimination.  In both instances, the former employer claimed there was a non-discriminatory reason for the termination.  Both of the former employees had since found other work, but had never been given what they considered to be a genuine explanation for their termination, nor any compensation for the time and anguish they had lost.

       Since I knew how the first case had settled, I was eager to gently nudge the parties into the same pattern of negotiation in the second case.  For that reason, I thought it was safe to skip a few steps in the process.  I did not take the time to develop a rapport with the clients, choosing instead to forecast where I thought the case would end up to the lawyers.  I failed to get the clients to buy in to the process early on and ultimately hit a stall in the negotiations before it was completed.  This left a lot of uncomfortable explaining to be done by the lawyers to their clients. 

     Luckily, I sensed that the entire mediation was going too quickly for the Defendant (who wanted to slow down the pace of his moves in order to get to the strategic end-point at the right moment and not before).  For the Plaintiff, who had an infant at home, the negotiation was going painfully slowly, since she had been left alone during much of the day while I conducted the negotiation through her lawyers.  Once I circled back to both of the parties, we could begin the negotiation in earnest and I have every expectation that within a few days the case will settle.  Still, once everyone departs from a mediation hearing, each offer and counter-offer can take days to communicate!  No time savings there. 

     Those of us who mediate routinely, including counsel, need to be ever mindful that taking short cuts is dangerous and may ultimately slow down the resolution of conflict.