Solution Focused Conflict Management

I'm reading such an interesting book, "Solution-Focused Conflict Management" by Fredrike Bannink. It occurs to me that there is an interesting dichotomy between the legal system, which is "problem focused" and the conflict resolution business which aims to be "solution-focused". Clients bring their problems to lawyers and they help them to address them by going back and seeking damages from those who have injured them. When they come to the mediator, we can either assist in that endeavor, or meet them where they are and assist in "getting out of the conflict" by changing their future--without any promise or hope of changing their past. Likewise, a client hires a lawyer to take action on their behalf in ways that they have been unable to do on their own. In solution based conflict resolution, the mediator gives the client back the responsibility and competence to make a decision which will affect change of their future. Bannink references a study which states that "a mediator can only mediate in the future tense." What an interesting challenge to mediate without regard to "how you got here" or "what is the problem?" to "how can you make small steps that will help you achieve your future goals?" It makes me see the world of hope and possibilities differently already.

Is "Settling" a Dirty Word?

I pride myself on settling cases. Most of the time, somewhere near the beginning of the mediation hearing, I explain to the parties that what we're after is a "compromise", not a win. Most of the time, they're satisfied with the outcome: it ends the lawsuit and usually resembles what is legally "right" or at least justifiable financially. And yet, when you "google" the word "settlements" you get a lot of images of uninvited housing developments in lands whose ownership is still under dispute. Does "settlement" also mean something like "staking out your claim"? Or consider the "settling" that takes place in so many homes in Southern California. That one causes cracks in our ceilings and walls after earthquakes have caused our foundation to tremble over so many years. Is that a good thing? What about "debt settlement"? That one gives relief to the debtor, so probably is analogous to the kind of settling I do for parties before me. And consider "settling down" as in making peace with your current situation. It appears to be subject to one's interpretation in ways that make my job that much more challenging. Do I dare to urge the parties to "settle" their lawsuit or is it useful to consider other terminology in light of the various meanings attached to the word?

Trust

Unless we're raised in an oppressive or abusive family or society, we generally grow up with a certain confident sense of trust. Some of us are better able to preserve the optimism than others. But it is this sense of trust which, in my view, allows a third party neutral to help settle disputes in matters that cannot be settled directly between the two parties. Indeed, in most cases that need a mediator it is precisely because the trust between the two disputants has broken down (or never developed). But without that trust (in somebody--either the adversary or the neutral), the dispute is so much harder to resolve!

A few examples: last week I mediated a business dispute in which the defense lawyer did not trust me (as the mediator) with his trial strategies, his evidence or the basis for his evaluation of the case. I figured this out early, when he negotiated my contract, because he didn't trust that I would not bill him for time beyond that for which I had been retained. Later, he sent sensitive documents to me via email, but wouldn't send them to my assistant, fearing that he would not maintain their confidentiality. The result was that I was as powerless as he and his client to settle that dispute. I spent the better part of 5 hours trying to gain that trust. It was evident to me that the lawyer or his client or both had been burned in previous mediations--and were not about to make themselves vulnerable in ways that needed to happen if the other side was to make major compromises in their position.

But it wasn't until today when I read the New York Times and Washington Post's story of the Israeli attack of the ship heading for Gaza that I understood why. We are now bombarded with so much dis-information, that we've all become a bit wary of trusting the sources we believed in as children. We are all left to "do the research" and make up our own minds what is truth and what is slanted by public opinion. We are all biased by the "side" we've taken in the past--striving to make it consistent with current conduct--rather than accepting that it may be a discordance or bad behavior. One account makes it clear that the Israeli's were set up by Hamas terrorists to act badly and look bad to the worldwide press. The other account (an essay by Michael Chabon in the NY Times, suggests that the Jews aren't, as we as children are told, smarter or more ethical than the rest of the world's population. Essentially, Chabon suggests that the particular Israeli's who performed this particular mission were acting on impulse without regard to higher ethics or intelligence.

Finally, on the personal side, I have been informally mediating a family matter between two close relatives. The trust one placed in the other has been called into question--and two men have had to question a lifetime of innocent trust in one another--about the loyalty of family and friendship as against opportunity and money lost and money gained.

Forgive my rambling, but I have to conclude that the common denominator is trust. Is it smart or expedient to begin with trust or should we all distrust until trust is earned? And can we conduct inter-personal relations, international relations or business relations this way? Is it good for us or bad? In my narrow world of mediation, I would at least posit that if you choose a mediator, you should lead with trusting her to maintain your confidences and work hard to help both sides gain the perspective needed to resolve the conflict between them...which, in my humble view, is always in everyone's best interest. Without some innocent trust, we may all fall down. But children are made of rubber and will bounce back. All of this distrust as adults could have much more dire consequences.

Aggressive Diplomacy in Mediation

Barack Obama used a phrase which I thought curious this morning in response to a journalist's inquiry about nuclear capabilities by Iran. The phrase was: "Aggressive Diplomacy". When I was an undergraduate studying International Relations, such a term would have been considered an oymoron. Good diplomats were never "aggressive". Diplomats were clever, cautious, prudent, facilitative, skilled, smooth, adept--but not "aggressive". To the contrary, they were the folks called in to "mediate" when world leaders became or threatened to become aggressive!

My mediation style has followed that early training. I have always seen myself more of a good diplomat than an aggressive purveyor of peace or conflict resolution. Now that I consider it carefully, I might also reach the conclusion that my early training in "diplomacy" at Pomona College got in the way of being a fully aggressive litigator for the couple of decades I tried that approach.

Just for a challenge, I thought I'd exercise Obama's approach and aggressively pursue diplomatic efforts. Today, I mediated a dispute between a brother and sister who had not had much interaction since their mother died 13 years ago and they inherited the family home jointly. There were many moments when the parties, both unrepresented, nearly gave up. In this instance, I had to be "aggressive" in my pursuit of diplomatic relations to reach a detente between them and help them move on. I found myself consciously taking a proactive role in the way Obama outlined in the Middle East.

Coincidentally, I had the pleasure of running into my first "boss" at the office today (participating in another mediation). A colleague introduced me and said jokingly, "She couldn't have been trained by you, she's too nice." His response was "She was mean when she was litigating with me!". So here's the challenge: for thirty days, I'm going to make an effort to "aggressively" mediate every case. I will be more than a dipolomat. I will do whatever I can to settle every case, even those that are lingering on my credenza. I will consciously observe the effect on the litigants and whether they accept my taking on that role. Who knows? This could portend the new world order!