Greg Bond The word “manipulation” has a bad name. It is usually used to denote devious and underhand behaviour. If we say that someone is being manipulative or that someone is a manipulative person then we are usually disapproving. Mediators are manipulators, and master mediators are master manipulators. I respond here to Rick Weiler’s recent post, in which he presented the idea that tough and even abusive mediators may well get better results. I found this rather repulsive when I first read it, and I would not recommend mediators insulting their clients. I certainly object to the underlying idea that whatever it takes to get to settlement, it is settlement that counts. The research Rick Weiler quotes states that “hostile mediators can positively influence negotiators’ motivation and ability to resolve conflict.” Yes, sometimes we feel we have to ask difficult questions, and sometimes we state what we see as hard truths, but I would like to think I never treat my clients disrespectfully and even thereby coerce them to settlement. And yet, a mediator who, as in Rick Weiler’s scenario, tells his or her clients he or she is not willing to have time wasted so they had better work hard on sorting out their dispute (if such a mediator exists), is using this kind of language because he or she wants his clients to “move on and move forward,” something many would see as a perfectly genuine goal of mediation. The mediator wants the clients to do something, and he or she uses this tough strategy for this end. And so: when I sit between my clients and the door to make it just a little harder for them to walk out, or when I engage with one person I feel needs more support, or who I feel needs to be heard, or who needs to be kept in check (whatever my hypothesis is), then I am manipulating. And I am doing so because I believe that this will increase the chance of a good process and a good result. When I practice the skills of active listening, and invite clients to tell their stories, and show that I want to understand how they felt, I am doing this because I am hypothesizing that this will be good for the outcome of the mediation. I am even taking the audacious step of assuming it will be good for the people whose concerns need to be heard. That it will transform them, even. Thinking about it, this is pretty presumptuous. When mediators suggest caucus, they are manipulating. When mediators ask about the alternatives to agreement, they are manipulating. When mediators ask their clients to stick to an agreed agenda they are manipulating. When mediators summarize the main issues or interests, but cleverly leave out what they think might not be helpful just at this moment, they are manipulating. And when mediators do not use empathy, but choose to “move on,” they are manipulating. Mediation is in essence the art of manipulating people, isn’t it? Well, yes it is. Webster’s dictionary defines manipulation as “to manage or utilize skillfully.” I suppose mediators can go along with that. A further definition is “to control or play upon by artful, unfair, or insidious means especially to one’s own advantage.” Well, as a mediator I do “control or play upon by artful means” (or try to), but are these means sometimes “unfair” and “insidious,” or even to my “own advantage”? There are important questions here about the relationship between a mediator and his or her clients. What right do we have as mediators to expect clients to gain a new perspective, and yet this is what we do, all the time? What right do we have to expect them to think of creative solutions? What right to ask them to see the other party’s point of view? A courtroom judge does not do this. He or she listens to the arguments and decides according to the law. It is not a judge’s main aim to change or persuade the parties in any way. It is a mediator’s aim to do precisely that. I draw several conclusions. First of all, I ask myself if am I really interested in the people I work with as people, or more in their role as figures in the process of the mediation (as in the game of chess, for example). If the latter, it would be time to retire from the profession. Do I really care? Secondly: I need to know that I cannot care too much, that there are limits and thus things that mediation cannot achieve, and that I cannot achieve as a mediator, and that I should not be trying to achieve these things. Thirdly: I have to tread carefully. All the time, when mediating, there can be three storylines going on in my mind: the first is the storyline the parties are presenting and which I am trying to understand, the second is the storyline in my own mind in which every intervention I try, every question I ask, every approach I take (whether I am the empathetic nice guy or the tough dealbroker) is something I am doing consciously. I need to be aware that I am doing x, y or z, and to choose that intervention with a readiness to drop it at any moment if it isn’t working. It is like a film running constantly in my mind and that film is the process: what am I doing now, what am I asking now and why, etc. (The third story line concerns my own emotional reactions and my efforts to stay aware of them so as not to let them confuse matters, but I will have to write another blog about this theme, as it would distract here). And my practice? Not insulting, no. Hopefully not coercive. Respectful yes. Not hell-bent on settlement (and not measuring my success as a mediator by settlement rates calculated in percentages), but nonetheless focused on solutions. Occasionally insistent. Sometimes submissive. Above all, I say openly to my clients that I will be asking questions and guiding process, and if I ask or suggest anything they are not comfortable with, they should ask me to explain it, or resist it or refuse it and ask for something else. I do not say this just in an opening statement (which is probably the most overrated thing we learn in much mediation training), but repeat it throughout the mediation, at moments when my hypothesis on good manipulative process tells me that it is opportune to do so. I often make my reasons for a process-based move transparent. In other words, I tell the parties that I will be manipulating them and I then ask them to influence the ways in which I do it. After all, getting a buy-in on your own manipulative process is another of the artful mediator’s manipulative tools, isn’t it? More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/24/mediator-manipulator/
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Alan Limbury Court cases are an important source of guidance for mediators, disputants and their lawyers. They remind us that the law casts a long shadow even when a mediation appears to have resolved successfully. They can rescue us – helping us identify and avoid previously unforeseen difficulties. Here’s an example Mr. and Mrs. Studer moved from Switzerland to Australia and in 1984 Mr. Studer purchased some 20 hectares of land for $A82,000. The contract of sale noted that the land was subject to 3 unregistered leases. Mr. Studer negotiated the departure of 2 of the lessees. The remaining tenant, whose rent was $A1 per year, had an option to renew her lease and an option to purchase her portion of the land. She had built a house there. She had also lodged a caveat (a warning, registered on the certificate of title, to intending purchasers, such as Mr. Studer, of her priority interest in the property). In order to allow Mr. Studer to become the registered owner of the whole of the land, the tenant removed her caveat at his request, claiming this was on the express basis that it would be reinstated afterwards, thus protecting her interest in the land. However, once registered as the owner, Mr. Studer took steps to evict the tenant, claiming she was occupying an illegal house on an illegal subdivision. The tenant sued to set aside the registration, alternatively compensation, claiming she had been induced to remove the caveat by fraudulent representations. The mediation In May 1991 the dispute went to mediation before a retired judge. Mr. Studer was represented by a barrister and a solicitor. A shuttle mediation followed opening statements. The retired judge circulated, making suggestions and trying to resolve the matter. After 8 to 10 hours, Mr. Studer agreed to pay the tenant $A100,000 by instalments, secured by a mortgage. In due course he was unable to pay the instalments and had to sell the property. The proceedings against the lawyers In 1992 Mr. Studer sued both his lawyers. He settled the claim against his barrister. He claimed his solicitor had put undue pressure on him to settle, alternatively failed to make a proper assessment of the parties’ respective cases, as a result of which the solicitor advised him to make a settlement that he should never have made. At trial the solicitor said he had advised Mr. Studer that, win or lose, he would end up $A100,000 or more out of pocket and that the retired judge had said it was quite plain that the case was not going to settle unless Mr. Studer made an offer of at least $A100,000. Mr. Studer said part of the pressure put on him was that he was told that the mediator was not available after 4 o’clock. It was argued for Mr. Studer that:
In October 1998 the trial judge dismissed Mr. Studer’s claim, finding that his will had not been overborne; that the solicitor had not unduly pressured him; and that the solicitor’s advice to settle was based upon a proper assessment of his case. Mr. Studer appealed In November 2000, the appeal was dismissed. The Court of Appeal held that the solicitor acted with proper care and skill in preparing for and conducting the mediation and that his firm advice to settle on the available terms was sound. The solicitor had not overlooked anything, had appreciated the serious difficulties in his client’s case and acted professionally and properly in the best interests of his client in bringing pressure to bear upon him to settle on the best available terms. So what might be some lessons? For lawyers: it is permissible to put pressure on clients to settle, so long as the pressure is appropriate in all the circumstances, having regard to an accurate assessment of the strengths and weaknesses of the client’s case. [Not an easy test to be confident of satisfying!] For disputants: even if you have unqualified authority to settle, do not hesitate to bring along as a “support” person someone whose approval of any eventual resolution would make it easier for you to make the decision and to live with it. For mediators:
More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/22/mediation-lessons-from-the-cases-part-3/ A great fear of mine is that with the blossoming of artificial intelligence (AI), my skills as a mediator will be replaced by a robot. This fear crept into my conscious again upon reading an article posted by Nick Hilborne on February 19, 2019 entitled , “Robot Mediator settle first ever court case.” Evidently, in a court case in Canada, Graham Ross, a mediator and online dispute resolution expert used AI algorithms using Smartsettle ONE software to assist two litigants in settling a civil money claims lawsuit. The issue was £2000.00 (approximately $2650.00 USD) in fees due to a trainer from a client for personal training sessions. A previous attempt at mediating by telephone had failed. One of the parties, being aware of the Smartsettle ONE software, agreed to try it as did the other party. The software is rather straight forward: It allows parties to make offers and counter-offers by moving flags along sliders – a green one seen by the other side and a yellow flag which is not. Mr. Ross described the yellow flag as “effectively a blind bid”. Mr. Ross said algorithms learn the bidding tactics and priorities of the parties employed and help “nudge” them into a settlement, without revealing their secret bids. “The system uses algorithms to help parties avoid the negotiation dance where they put forward offers which are not their best. It also rewards the party that makes the biggest effort to settle.’ …Settling the case would not reveal anything about their negotiating policy. That’s the beauty of this.’” (Id.) The article ends with the author noting that this tool will not put mediators out of business but will simply be an additional tool to help them resolve cases. This assessment is probably accurate. While this software may be helpful in straightforward cases, it cannot take into consideration, much less deal with the often-emotional side of resolving disputes. We make decisions largely based on emotions, and most conflicts are fraught with emotional overlays and components. It takes a real live human, not a robot, to actively listen to a party’s story, reframe it and empathize with the party and her story. Every party needs to be heard, and only after a party feels that she has been heard, is she willing to move forward towards resolution. This is simply beyond the realm of a robot, even Hal of A Clockwork Orange fame. So.. while I have some fear of being replaced by a robot or AI software, deep down I know it will never happen as the “human touch” is irreplaceable. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Will I Be Made Redundant? appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/will-i-be-made-redundant/ Originally published in Law360, April 9, 2019 Typically, if a matter settles at mediation, the parties will enter into a settlement agreement then and there to ensure that the matter has indeed settled; there will be no buyer’s remorse or change of mind the next morning. Often included are provisions that the settlement agreement may be enforced by a motion to enforce the settlement, pursuant to California Code of Civil Procedure Section 664.6 and that the court will retain jurisdiction to enforce the terms of the settlement agreement. In Mesa RHF Partners LP v. City of Los Angeles et al, and Hill RHF Housing Partners LP v. City of Los Angeles,[1] the Second Appellate District Court in California just made it tougher for the trial court to retain jurisdiction on a motion to enforce the settlement. It ruled that the parties themselves, and not their counsel, must make the request to the court. For counsel to do so, will not be enough. In both matters, the plaintiffs sued the city of Los Angeles seeking declaratory and injunctive relief challenging payments that they had to make regarding the city’s establishment of a Downtown Business Center Business Development Improvement District in downtown Los Angeles (first cited case) and then the San Pedro Historic Waterfront Property and Business Improvement District and the San Pedro Property Owners Alliance in Los Angeles (second cited case). Both lawsuits challenged the tax assessments for such services. Eventually, both lawsuits settled, and the parties agreed that the plaintiffs would be remitted the amounts that they were paying by way of assessments for these districts. Both settlement agreements contained the provision that the court would retain jurisdiction to enforce the terms of the settlement agreement pursuant to C.C.P. §664.4. Further in the request for dismissal of each lawsuit, counsel inserted the provision that the court would retain jurisdiction to enforce the settlement pursuant to C.C.P. § 664.6. Section 664.6 provides:
Approximately, five years later, the city ordinance creating the districts expired. In negotiating the renewal of these districts, the city of Los Angeles took the position that the terms of the settlement agreements expired with the expiration of the ordinance creating these districts. The appellate court agreed with the denial but based its affirmance on a lack of subject matter jurisdiction. Citing C.C.P. §664.6, the appellate court noted that the requests for dismissal were not signed by the “parties” as previous courts have construed the statute.[2]
The court refused to accept the request being made by the attorneys as being sufficient. Rather, it “… must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves…”[4] In response that this may create a “Catch 22” or burden on the parties, the court stated that this requirement was not all that complex: The attorneys could have either attached a copy of the settlement agreement to the requests for dismissal,[5] or they could file a new action for breach of settlement agreement, or
Citing Levy v. Superior Court,[7] the appellate court made it clear that the California Supreme Court determined that the term ‘parties” as used in §664.6 refers to the actual parties (That is, plaintiff, defendant, cross-complainant, cross-defendant, etc.) and does not include or refer to the attorneys for the parties. In Levy, supra, the attorneys for the plaintiff and defendant entered into a settlement by signing a letter agreement on behalf of their respective clients. When it came time to sign the actual settlement agreement, the plaintiff refused to do so. The defense lawyer then filed a motion to enforce the settlement pursuant to C.C.P. §664.6. The trial court denied the motion. The defense lawyer then sought a writ of mandate from the Court of Appeal, which was denied. The defendant then sought relief from the California Supreme Court, which after discussing the several previous cases on the topic, held that the word “parties” in §664.6 refers to the actual plaintiff and defendant, etc., and not to their counsel. Thus, the settlement agreement at issue was not enforceable as only the attorneys and not the actual parties signed the agreement. Being bound to honor the Supreme Court’s determination on this topic, the appellate court in the present case held to the same effect: The actual parties must be the ones requesting the trial court to retain jurisdiction; the attorneys’ request is ineffectual. Consequently, simply providing either in a settlement agreement or in a request for dismissal that the court retains jurisdiction to enforce a settlement agreement pursuant to C.C.P. §664.6 will not be sufficient. A document signed by the parties in the form of the settlement agreement either attached to the request for dismissal or attached to a stipulation and proposed order or having the parties themselves sign the stipulation and proposed order must be submitted to the court for it to retain jurisdiction. Otherwise, a party seeking to enforce the settlement agreement will be left with the undesirable alternative of having to file a whole new lawsuit for breach of contract. The moral: Be sure to have the actual parties make the request to the court to retain jurisdiction in case a motion to enforce the settlement becomes necessary. Otherwise, should a party breach the settlement, a whole new lawsuit alleging breach of contract will be needed to enforce the settlement. The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] B288355 (filed 3/29/19) ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Getting California Mediation Settlements Enforced Is Now Harder appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/getting-california-mediation-settlements-enforced-is-now-harder/ The other day I stumbled upon a tweet mentioning a “velvet hammer”. Wondering what it was, I googled the reference and came upon an article discussing its meaning and use; Why the ‘velvet hammer’ is a better way to give constructive criticism by Stephanie Vozza. Taking issue with the what she calls the “sandwich method” for delivering bad news in which someone starts off with something positive, then discusses the negative and then ends on a positive note, the author recommends the use of the “velvet hammer.” ( For more on the “sandwich method, see, The Power of a Positive No by William Ury (Bantam Books, New York , 2007).) The formula is simple: Start with, “Got a minute? Great. I need your help.” “It should be said in a way friendly,” says Baldridge. “Nothing about this is scary. And ‘I need your help’ is an international surrender of agenda. It’s a disarming way to get attention sincerely and genuinely. And you do need their help because their behavior is becoming problematic.” Next, say, “I noticed that [problem behavior goes here.] (Pause) I was wondering what’s causing this problem (pause), because it cannot continue. What do you suggest we do?” “The word ‘because’ is one of the 30 most persuasive words,” says Baldridge. “Everyone wants to know what comes after it.” Also, asking what the person suggests we do is powerful because people are persuaded most by their own words, says Baldridge. The approach is designed to be nonthreatening, compassionate, and open-minded. It finds positivity in the way you communicate, manage, and lead, especially when you need to correct a problematic behavior. (Id.) The author claims that this velvet hammer works because it is “… actually a verbal contract you are creating with another person to better yourself….”. (Id.) She does caution that one must be careful with the words used as words are powerful and using the wrong word can produce the wrong outcome. She also mentions to be careful about the tone; again, using the wrong tone can send the wrong message. (Id.) Finally, the author points out the importance of separating the people from the problem. By asking the other what would she suggest be done, it frames the issue as “us against the problem” rather than “me against you.”(Id.) I can envision using this approach during a mediation when I must be the bearer of bad news. Rather than using the good news/bad news approach, I can try using the velvet hammer in the hope that it will help the parties separate the people from the problem and move the problem towards a resolution. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post A New Tool in my Toolbox! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/a-new-tool-in-my-toolbox/ Originally published in Law360, April 9, 2019 Typically, if a matter settles at mediation, the parties will enter into a settlement agreement then and there to ensure that the matter has indeed settled; there will be no buyer’s remorse or change of mind the next morning. Often included are provisions that the settlement agreement may be enforced by a motion to enforce the settlement, pursuant to California Code of Civil Procedure Section 664.6 and that the court will retain jurisdiction to enforce the terms of the settlement agreement. In Mesa RHF Partners LP v. City of Los Angeles et al, and Hill RHF Housing Partners LP v. City of Los Angeles,[1] the Second Appellate District Court in California just made it tougher for the trial court to retain jurisdiction on a motion to enforce the settlement. It ruled that the parties themselves, and not their counsel, must make the request to the court. For counsel to do so, will not be enough. In both matters, the plaintiffs sued the city of Los Angeles seeking declaratory and injunctive relief challenging payments that they had to make regarding the city’s establishment of a Downtown Business Center Business Development Improvement District in downtown Los Angeles (first cited case) and then the San Pedro Historic Waterfront Property and Business Improvement District and the San Pedro Property Owners Alliance in Los Angeles (second cited case). Both lawsuits challenged the tax assessments for such services. Eventually, both lawsuits settled, and the parties agreed that the plaintiffs would be remitted the amounts that they were paying by way of assessments for these districts. Both settlement agreements contained the provision that the court would retain jurisdiction to enforce the terms of the settlement agreement pursuant to C.C.P. §664.4. Further in the request for dismissal of each lawsuit, counsel inserted the provision that the court would retain jurisdiction to enforce the settlement pursuant to C.C.P. § 664.6. Section 664.6 provides:
Approximately, five years later, the city ordinance creating the districts expired. In negotiating the renewal of these districts, the city of Los Angeles took the position that the terms of the settlement agreements expired with the expiration of the ordinance creating these districts. The appellate court agreed with the denial but based its affirmance on a lack of subject matter jurisdiction. Citing C.C.P. §664.6, the appellate court noted that the requests for dismissal were not signed by the “parties” as previous courts have construed the statute.[2]
The court refused to accept the request being made by the attorneys as being sufficient. Rather, it “… must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves…”[4] In response that this may create a “Catch 22” or burden on the parties, the court stated that this requirement was not all that complex: The attorneys could have either attached a copy of the settlement agreement to the requests for dismissal,[5] or they could file a new action for breach of settlement agreement, or
Citing Levy v. Superior Court,[7] the appellate court made it clear that the California Supreme Court determined that the term ‘parties” as used in §664.6 refers to the actual parties (That is, plaintiff, defendant, cross-complainant, cross-defendant, etc.) and does not include or refer to the attorneys for the parties. In Levy, supra, the attorneys for the plaintiff and defendant entered into a settlement by signing a letter agreement on behalf of their respective clients. When it came time to sign the actual settlement agreement, the plaintiff refused to do so. The defense lawyer then filed a motion to enforce the settlement pursuant to C.C.P. §664.6. The trial court denied the motion. The defense lawyer then sought a writ of mandate from the Court of Appeal, which was denied. The defendant then sought relief from the California Supreme Court, which after discussing the several previous cases on the topic, held that the word “parties” in §664.6 refers to the actual plaintiff and defendant, etc., and not to their counsel. Thus, the settlement agreement at issue was not enforceable as only the attorneys and not the actual parties signed the agreement. Being bound to honor the Supreme Court’s determination on this topic, the appellate court in the present case held to the same effect: The actual parties must be the ones requesting the trial court to retain jurisdiction; the attorneys’ request is ineffectual. Consequently, simply providing either in a settlement agreement or in a request for dismissal that the court retains jurisdiction to enforce a settlement agreement pursuant to C.C.P. §664.6 will not be sufficient. A document signed by the parties in the form of the settlement agreement either attached to the request for dismissal or attached to a stipulation and proposed order or having the parties themselves sign the stipulation and proposed order must be submitted to the court for it to retain jurisdiction. Otherwise, a party seeking to enforce the settlement agreement will be left with the undesirable alternative of having to file a whole new lawsuit for breach of contract. The moral: Be sure to have the actual parties make the request to the court to retain jurisdiction in case a motion to enforce the settlement becomes necessary. Otherwise, should a party breach the settlement, a whole new lawsuit alleging breach of contract will be needed to enforce the settlement. The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] B288355 (filed 3/29/19) ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Getting California Mediation Settlements Enforced Is Now Harder appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/getting-california-mediation-settlements-enforced-is-now-harder/ The other day I stumbled upon a tweet mentioning a “velvet hammer”. Wondering what it was, I googled the reference and came upon an article discussing its meaning and use; Why the ‘velvet hammer’ is a better way to give constructive criticism by Stephanie Vozza. Taking issue with the what she calls the “sandwich method” for delivering bad news in which someone starts off with something positive, then discusses the negative and then ends on a positive note, the author recommends the use of the “velvet hammer.” ( For more on the “sandwich method, see, The Power of a Positive No by William Ury (Bantam Books, New York , 2007).) The formula is simple: Start with, “Got a minute? Great. I need your help.” “It should be said in a way friendly,” says Baldridge. “Nothing about this is scary. And ‘I need your help’ is an international surrender of agenda. It’s a disarming way to get attention sincerely and genuinely. And you do need their help because their behavior is becoming problematic.” Next, say, “I noticed that [problem behavior goes here.] (Pause) I was wondering what’s causing this problem (pause), because it cannot continue. What do you suggest we do?” “The word ‘because’ is one of the 30 most persuasive words,” says Baldridge. “Everyone wants to know what comes after it.” Also, asking what the person suggests we do is powerful because people are persuaded most by their own words, says Baldridge. The approach is designed to be nonthreatening, compassionate, and open-minded. It finds positivity in the way you communicate, manage, and lead, especially when you need to correct a problematic behavior. (Id.) The author claims that this velvet hammer works because it is “… actually a verbal contract you are creating with another person to better yourself….”. (Id.) She does caution that one must be careful with the words used as words are powerful and using the wrong word can produce the wrong outcome. She also mentions to be careful about the tone; again, using the wrong tone can send the wrong message. (Id.) Finally, the author points out the importance of separating the people from the problem. By asking the other what would she suggest be done, it frames the issue as “us against the problem” rather than “me against you.”(Id.) I can envision using this approach during a mediation when I must be the bearer of bad news. Rather than using the good news/bad news approach, I can try using the velvet hammer in the hope that it will help the parties separate the people from the problem and move the problem towards a resolution. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post A New Tool in my Toolbox! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/a-new-tool-in-my-toolbox/ Constantin-Adi Gavrila The good news is that the Romanian Government has taken a step towards availability for dialogue, communication and negotiation by regulating a mediation procedure between tax authorities and taxpayers. The not so good news is that there is no role provided for a mediator in this procedure called mediation, that in fact is negotiation. Once again, for the authorities in 2019, there is no difference between negotiation and mediation, thus regulating a novel mediation model, “mediation without a mediator”. ”The tax mediation procedure” Specifically, in January 2019 the Law no. 30/2019 for the approval of Government Emergency Ordinance no. 25/2018 regarding the amendment and modification of certain normative acts, as well as for the approval of fiscal-budgetary measures. Through this law, among other provisions, the Romanian Tax Procedure Code was also amended by introducing a “Tax (Fiscal) Mediation Procedure” regarding the extent of the tax liabilities of taxpayers and optimal solutions for their extinction. Through the regulated ”mediation procedure”, with the transmission of the payment order, the authorities will provide taxpayers with information on the possibility of initiating a mediation procedure. Tax authorities have the obligation to hold a meeting with the taxpayer who expresses his/her appetite for dialogue within a certain timeframe. About mediation and mediators According to art. 3, lit. b) of EU Directive 2008/52 / EC, ‘Mediator’ means any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation. Law no. 192/2006 on the mediation and organisation of the profession of mediator in Romania defines mediation as a way of amicable settlement of conflicts, with the support of a third party specialized as a mediator, in terms of neutrality, impartiality, confidentiality and with the free consent of the parties. Thus, mediation relies on the trust which the parties invest in the mediator, as a person capable to facilitate negotiations between them and to provide them with support for the settlement of the conflict, by reaching to a mutually convenient, efficient and sustainable solution. The International Mediation Institute defines mediation as a negotiation process facilitated by a trusted neutral without power to make decisions. The fact that mediation is defined in many different ways is also recognized by doctrine. No wonder the understanding of mediation also creates confusions for the policy makers, not just among citizens and the private sector. What is the concern? However, the existence of a third independent party, the mediator, with the role to facilitate the process of communication and negotiation between the parties is one of the common elements in the variety of approaches to mediation and the role of the mediator. This element is missing from the “Romanian Tax Mediation Procedure”. In other words, if we think of the Latin origins of the term “mediation”, in the ” Romanian Tax Mediation Procedure” there is nothing and no one in the middle, between the two parties – the tax authority and the tax payer. (the word “mediation” comes from Latin, where “medium” means “middle” or “center”, and the verb “mediare” means “being in the middle” or “dividing in the center”.) The purpose of this post refers to the unfortunate use of the term “mediation” in legislation and the causes that have generated such confusion as to what the mediation is in fact and what is the role, the utility and the necessity for the mediator. Short term solutions If we only think about the misuse of the term “mediation”, the solution is simple, replacing it with “negotiation” and solving the problem. In this way, negotiation would be the rule and mediation become an instrument that can be used if the tax authority and the taxpayer decide that the mediator’s intervention might be useful – otherwise unlikely in the current circumstances. Or, it remains a mediation procedure, but with a very clear role for the mediator. Four possible causes We ask ourselves what are the possible causes that have led to this situation? Why? Because if these causes are not identified, regardless of the jurisdiction we are discussing, situations like this will still occur and we will still try to deal with effects. Otherwise, if their causes are correctly identified and eliminated, similar confusions and their effects can be prevented in the future. First of all, it’s worth a look in the curricular areas of the educational environment. Indeed, from the first years of school to the highest academic levels, including legal education, with a few exceptions, we do not find programs aimed at understanding, preventing and amicably settling conflicts, practical information about the science and art of communication, or ways to stimulate cooperation in the dispute resolution space. In addition to factors related to the lack of certain trends in educational programs, once again, with some exceptions, the educational environment generally seems to be based on competitive paradigms in which it matters to be strong, to be the best, to win, in which the majority decides over the minority. The alternative paradigm is based on the idea of collaboration, remedy, compassion and inclusive tools, and other values that in some cultures are considered signs of weakness. A second possible cause is that, given the limited understanding of mediation in the educational context described above, its use is not sufficiently stimulated by the law, which leads to extremely limited use with a few exceptions, as is the case with Italy and, more recently, that of Turkey, also based on the Italian model. In other words, on the one hand, without being actually used, mediation cannot really be understood, but on the other hand, if potential users do not correctly understand what mediation is, they will not require services, so will not generate practice. It’s a chain of weaknesses. The third possible cause we have identified is the lack of effective mechanisms to ensure and improve the quality of mediation services. Whether we are looking at the case of Romania in particular, which has provided us with the “opportunity” of this debate or the European Union in general, again, with the exceptions, we cannot talk about the existence of mechanisms to ensure and improve the quality of mediation services. Such mechanisms are important and necessary, especially when we are talking about a new paradigm based on the principles of restorative justice, a paradigm that ”hits” the mentality of people and institutions, especially in certain cultures. It should be noted that another cause may be the lack of public policies on mediation in the European Union and Member States’, the lack of concrete action plans for the development of mediation and the highlighting of the values it promotes – a culture of dialogue, understanding, availability for prevention and amicable settlement of disputes, in which there is no equal sign between availability for communication and weakness, where the courts are not the first, but the last stop in the ”justice route” to which only those who cannot prevent conflicts or cannot solve them amicably at the previous ”stops”. Final reflections The “Tax Mediation Procedure” can over time become a “mediation procedure” or can be called as it is, in fact, a negotiation one. Of course, even if it is called a negotiation procedure, as it is actually described at this time, the parties will be able to decide from one case to another if they want to benefit from the independent facilitation of a mediator, mediation being thus a possibility. Of course, these situations are possible amid ineffective communication within or between the professional body of the mediators and other stakeholders, including the institutions responsible for adopting public policies on mediation. Therefore, it is desirable for institutions to consider sustainable, long-term solutions. Perhaps the time of “the field of 1000 roses” has passed and a coherent approach based on real impact studies, including at EU level, is needed. If the negotiation is the whole, mediation is the part. Therefore, if we name the whole after the name of the party, we generate confusion about which one is and which is the other. The confusion in itself is not a problem. The problem is that, in the current context, in which society still does not correctly understand what mediation is, it may be the perception that the mediator is the representative of the state, of the institution or of the stronger party, in no case an independent person. Such perception would be very dangerous because it would interfere with the mediator’s independence, a value that, in fact, lies at the foundation of the mediation procedure. -- Extract from Law no. 30/2019 for the approval of Government Emergency Ordinance no. 25/2018 regarding the amendment and modification of some normative acts, as well as for the approval of fiscal-budgetary measures: ART. 2301 The mediation procedure More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/14/mediation-without-mediator/ The other day I stumbled upon a tweet mentioning a “velvet hammer”. Wondering what it was, I googled the reference and came upon an article discussing its meaning and use; Why the ‘velvet hammer’ is a better way to give constructive criticism by Stephanie Vozza. Taking issue with the what she calls the “sandwich method” for delivering bad news in which someone starts off with something positive, then discusses the negative and then ends on a positive note, the author recommends the use of the “velvet hammer.” ( For more on the “sandwich method, see, The Power of a Positive No by William Ury (Bantam Books, New York , 2007).) The formula is simple: Start with, “Got a minute? Great. I need your help.” “It should be said in a way friendly,” says Baldridge. “Nothing about this is scary. And ‘I need your help’ is an international surrender of agenda. It’s a disarming way to get attention sincerely and genuinely. And you do need their help because their behavior is becoming problematic.” Next, say, “I noticed that [problem behavior goes here.] (Pause) I was wondering what’s causing this problem (pause), because it cannot continue. What do you suggest we do?” “The word ‘because’ is one of the 30 most persuasive words,” says Baldridge. “Everyone wants to know what comes after it.” Also, asking what the person suggests we do is powerful because people are persuaded most by their own words, says Baldridge. The approach is designed to be nonthreatening, compassionate, and open-minded. It finds positivity in the way you communicate, manage, and lead, especially when you need to correct a problematic behavior. (Id.) The author claims that this velvet hammer works because it is “… actually a verbal contract you are creating with another person to better yourself….”. (Id.) She does caution that one must be careful with the words used as words are powerful and using the wrong word can produce the wrong outcome. She also mentions to be careful about the tone; again, using the wrong tone can send the wrong message. (Id.) Finally, the author points out the importance of separating the people from the problem. By asking the other what would she suggest be done, it frames the issue as “us against the problem” rather than “me against you.”(Id.) I can envision using this approach during a mediation when I must be the bearer of bad news. Rather than using the good news/bad news approach, I can try using the velvet hammer in the hope that it will help the parties separate the people from the problem and move the problem towards a resolution. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post A New Tool in my Toolbox! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/a-new-tool-in-my-toolbox/ John Sturrock A number of recent mediations have reaffirmed some essentials which I share here in the hope that they might be helpful to others: It’s not all about the money. Mr A had a very substantial claim against a bank running into hundreds of thousands of pounds Sterling, most of his life savings. When I asked him, early on, what he needed from the mediation day, he replied “I’d like them to apologise”. The bank’s advice was that it had done everything it could and that it had no legal liability. A familiar situation. However, the bank’s representatives found a way, authentically, to convey their deep regret that Mr A had experienced losses. They said they would do everything they could to ensure it would not happen again. Mr A was very pleased with what was said. The matter settled for a modest sum overall. The Bank and Mr A conducted the final stage of the negotiations themselves, with support from advisers. Both parties left the mediation process satisfied with the outcome. When wheels have come off, re-engage the key players. Day two of mediation was designed to build on day one several weeks earlier. However, the parties had not made the expected progress. In private initial meetings, one party expressed frustration and a feeling of lack of respect being shown by the other party – and a desire to conclude the process and proceed with litigation. The engagement between the mediation days had been at a level below the key players. When the principals came together in a private meeting with me, they were able to hear from each other about their mutual frustration with what had happened. They agreed that they needed to oversee the process. Much progress was then made in joint meetings in which the subordinates addressed the main issues under the watchful eye of the principals. The less senior people (including professional advisers) behaved in a different way with each other as they explored why they had not made progress, where the difficulties lay, and what needed to be done to make faster progress. The most senior people watched, asked questions, summarised, and provided guidance and leadership. The parties probably achieved more in half a day than for several months. Get under the surface. In a long-running claim worth many tens of millions, the decision-makers appeared to have reached the end of the road. In an effort to find a way forward, we spent four hours going through my ‘Questions for a Difficult Meeting’ questionnaire. The parties prepared privately first and then, meeting together, they alternated in giving their responses. The nature of the questions is such that they needed to dig deeper to look for answers. This opened up new levels of understanding about pressures, outside constituencies, alternative courses of action, changed realities and validation required for amounts sought. It led to a further discussion about possible settlement figures. Ask questions. Similarly, in a difficult mediation involving very senior directors in a company, impasse had been reached. Or so it seemed. But the more questions I asked, about their own ambitions, what others would say about them, how they might have contributed, what they might change or do themselves to make a difference, what questions they needed to ask, what pressures each was under, what they might be missing, and so on, the more they could see for themselves what needed to happen. I am a great believer in party autonomy. Questions, used well, compel people to take responsibility. Use a worked example. Many of us struggle with figures. Few of us really get to the bottom of what the numbers are telling us – or might tell us if we understood them. In a mediation involving a business partnership in which property was being divided up in a separation, the lawyers had spent several hours trying to explain what it all meant. Eventually we got the flip chart sheets up and the parties themselves began to map it all out. It wasn’t easy as there were so many variables around land valuations, compulsory purchase possibilities and development proposals. And the taxation aspects were uncertain. However, for over an hour, we worked it through. One of the parties was moved to say: “The figures are so much easier to understand than the lawyers’ words”!! Enough said. A satisfactory deal was done. Encourage forward-looking momentum. When the going gets tough, maintain a process and be clear what that is – and try to ensure that the parties continue to commit to it. It has been said (by Deepak Malhotra in his excellent ‘Negotiating the Impossible’): “Stay at the table even after failed negotiations – if you are not at the table, you are on the menu”. The job of the mediator is to (a) try to offer the best possible process for the circumstances; (b) keep in touch with and support parties even when there seems to be an impasse and (c) be prepared for a window of opportunity to open up, perhaps unexpectedly. Keep looking for it. In my experience, it often does. And we rediscover that most people, whoever they are, wish to resolve their disputes by agreement. Provide food. Continuing with the idea of eating, it is encouraging to have endorsement of the value of bringing all the participants in a mediation together to share food. I do this whenever I can, with everyone meeting for breakfast after my initial private meetings. A buffet lunch can also be useful where people can choose to linger and chat if they wish. I find it is useful to explain why I am doing this and I can now provide academic support that it works: see ‘Shared Plates, Shared Minds: Consuming From a Shared Plate Promotes Cooperation’ by Woolley and Fishbach, Association for Psychological Science 2019. More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/10/its-not-just-about-the-money-and-other-food-for-thought-for-mediators/ |