Sincere apologies only, please

Today I woke up to another social media take-down: Britt McHenry suspended over her videoed tirade.  Her car was towed, she was pissed, and took out her rage at the clerk who seemed to handle the who thing incredibly well.

I can understand the impulse verbally vomit all over the messenger.  No-one likes to have their car towed and I am guessing the clerk wasn't particularly sympathetic to Ms. McHenry's predicament.  Of course, that's no excuse for saying vile things to another human being.

What upset me was Britt McHenry's Twitter apology: 

"In an intense and stressful moment, I allowed my emotions to get the best of me and said some insulting and regrettable things. As frustrated as I was, I should always choose to be respectful and take the high road. I am so sorry for my actions and will learn from this mistake. "

Twitter's 140 character limit is a perfect size for a sincere apology: it doesn't take much, own your mistake, express regret, offer to make amends, and maybe share what you learned. Ms. Henry's 300+ tweet, on the other hand, strikes me as the opposite of a sincere apology.

She starts with setting the scene: it was an intense and stressful moment (over which she had no control and certainly didn't cause).  Then her emotions (separate from her actual self) kidnapped her mouth and said some "things" which were insulting and regrettable.  Where is that clerk in her apology?  She didn't just curse our loud, she verbally attacked another person, but I don't see a trace of that acknowledgement.

Instead I see that Britt McHenry want's to take the "high road."  What is she talking about? Did the clerk insult her first, leaving her with existential choice?

Here is my recommended tweet for Britt:

"I was horrified to see myself abuse person who didn't deserve it.  I am sorry for my vile words, hope to learn from this & make amends." Assuming she means it...

The "value" of language

Last month I had a commercial mediation that took an unexpected turn.  It began as most of my mediations do - everyone gathered in a conference room, I framed the discussion with an opening statement.  Then, each of the parties explained their view, aided by their counsel.  I looped and summarized what I heard until all sides were nodding.  Then I asked to meet with each side privately and begin the process of moving the parties toward the possibility of settlement.

During one of caucuses, I asked one of the principals about the value meeting in a joint session as the first mediation step.  I didn't know what the response would be and would not have been surprised if the person said that it wasn't that valuable.

However, what happened after I asked the question really surprised me.  Before the principal even opened her mouth, the attorney leaped forward as if I had fired a bullet at the client and yelled "Don't answer that!!!  That is an inappropriate question, and this mediation is over!"  With these words, the attorney began to collect her papers and motion to her client to do the same.  

I was stunned.  I had mediated many cases and have never seen such a charged response to such a seemingly neutral question.  I quickly collected myself and asked if I could meet with the attorney in private.  After some coaxing on my part, the attorney agreed to briefly speak with me.

We went into a small conference room and I asked what caused the attorney to defend her client so staunchly.  I expressed my honest surprise and assured her that I was only trying to find out what happened.  After some hesitation the attorney told me that any conversations about the value of the case should be discussed with her, not her client. 

Suddenly the exchange made sense to me!  I explained that the word "value" in my question meant "importance" and was not intended to elicit a dollar figure.  The attorney accepted my explanation and the mediation continued.

As I reflected on this incident, I began to think about how often words and phrases, all spoken in English, carry such different meanings for the speaker and the listener.  As mediators, we are trained to listen for these differences, and be aware of how our questions can land.  When I train new mediators, I always stress these skills.  

Nevertheless, sometimes wires get crossed, and an innocently uttered phrase can land very differently than it was intended.  So, what's a mediator to do?

To me, awareness that a miscommunication can happen despite our best intentions is the first line of defense.  It's no-one's fault, it's just a part of life.  Taking on this perspective can help a mediator keep her/his balance when an incident actually occurs.

Keeping the ego in check is another piece of the puzzle.  I vividly recall feeling offended by the attorney when "she misunderstood my good intention" of trying to engage her client in a "constructive dialogue."  I was able to shake off that feeling, and was able to approach the attorney as a colleague in the process.  Without making that mental shift, I would have remained seeing her as "against me" and would have surely lost her willingness to cooperate further.  

Remaining curious is another mental tool I find helpful.  Following the jolt of indignation I felt, I remember becoming truly curious about what happened.  I felt confident that I didn't say anything wrong, so what could have caused this reaction?  I believe it was that sense of curiosity that made it possible for the attorney to engage with me and help me understand.

When to caucus

I supervised a mediation today between a landlord and a tenant. Both wanted to part ways - but were locked in a feud that kept the tenant from moving out. The landlord was arrogant, the tenant emotional and the mediators, earnestly albeit unsuccessfully,  tried to bring them toward a compromise.

At one point the mediators asked for my suggestion. I recommended moving from a joint session to caucusing with each party. I know caucusing is sometimes a controversial subject among mediators, so I thought I'd lay out my case for using a caucus, at least in this case.

In my experience, using a caucus has several advantages:

• Information-gathering: speaking with parties separately can yield a great deal of information that neither party is willing to share in front of their adversary. Sometimes the information is materially confidential (i.e. the disclosure would weaken the party's negotiating position) or personally embarrassing. Often, however, the parties are simply too angry and distrustful of the other to share any information, even if there is no reason to withhold it.
  
  
• Relationship-building: often, it is easier for the mediator to build rapport with each party by acknowledging each person's perspective. In a joint session, a mediator has to be much more careful to maintain neutrality and thus avoiding acknowledging each party too much. In a caucus, however, a mediator can use the time with each party to build trust and good will with the parties.
  
  
• Efficiency: during the initial joint session parties can spend a long time exchanging accusations, insults and threats. In cases where the parties have a relationship that will continue, exploring these issues can be an important step toward resolving the dispute. However, in situations where the parties will not continue to interact much after the case, spending time processing the origins of the conflict in a joint session can be a waste of time. It may be more productive for the mediator to listen to each party separately, acknowledge each party's version, and help each side move toward getting closure.
  

To be sure, caucusing has a few risks as well:

• Maintaining attention: usually, while the mediator works with one party, the other waits outside the mediation room. Sophisticated parties, represented by counsel may well be used to waiting. However, when a party consists of one person, he or she may become very anxious and upset if they are kept waiting for a long time.
  
  Whenever I ask one party to wait I like to assign homework. It could be something like writing out the best/worst outcome of the mediation, the top five issues that are important to raise, etc. I find that when the parties are busy working on a task, they don't think of themselves as "waiting" but feel engaged in the mediation process. Of course, I have to acknowledge their work when I meet with them by asking them to share their list.
  
  
• Building a shared reality: one of the benefits of a joint session is that the parties can fill in gaps in each others' stories. This could be very helpful in resolving a dispute, but only if the parties trust each other enough to accept new information. Often, new information introduced by one side is dismissed as a "lie" by the other.  The caucus can be helpful in minimizing the tension between the parties, however if the parties are not speaking to each other about their differences, they are likely to resist the mediator(s) when confronted with an alternate perception of the events.
  
  
• Honest expression of the conflict: In my opinion, this is highly useful if the parties expect to have an ongoing relationship (family members, neighbors, co-workers). However, if the relationship has been (or is being) severed, honest expression of frustrations is only important as catharsis, allowing for closure. In that case, the mediator can more effectively offer acknowledgment and leave each side to have their version of the truth.

In today's case, the landlord and tenant agreed only that it will be best for each of them if they go their separate ways. Given that shared preference, using a caucus would probably help each party move toward an acceptable solution.  However, the mediators certainly have a tough task getting each side to accept the other side's version of the events.

Working with a co-mediator

A former student contacted me today, asking about working with a co-mediator who had a different mediation style. It seems his approach was to help the parties solve their concrete problems, while my student's approach was to understand the relationship issues first.

Different mediators have different ways of approaching the process. Some like to move the mediation at the pace of the slowest party, others just the opposite - once the mediator understands the issues, s/he is ready to help the parties craft an agreement.

So, what can a mediator to do when the co-mediator's style clashes with their own? Here are a few suggestions:

• Whenever possible, speak with a new co-mediator about your and her/his style, preferences, etc. BEFORE the mediation begins. A quick chat will go a long way toward building trust between you and the other co-mediator, even if your styles are vastly different. During your conversation, agree on a signal you can use to alert the other person that you want to try a different approach, call for a caucus, etc.
  
  
• Avoid judging the co-mediator as being "wrong" or "bad" during the mediation. This can create an atmosphere of mistrust between the mediators, which will inevitably cause the parties to lose trust in the mediators, and the process. It doesn't matter if you would be justified in criticizing your co-mediator. The mediation is not the place for critiquing your co-mediator, even silently.
  
  
• At your first opportunity to speak privately with your co-mediator (you may need to ask for a caucus) let her/him know your perspective. Consider using a form of the "I" statement you probably learned in basic mediation training: "When I heard you say ____ to the parties, I was considering saying _____ . What do you think of this approach?" This will minimize the chance of making your co-mediator defensive and allow your point to be heard.
  
  
• Whenever possible look for ways to leverage each other's strengths. For example, your strength may be to connect with the parties emotionally, while your partner may be skilled at helping parties invent options. Or you may be trusted more by one party and your partner by the other. In that case, consider taking turns leading the mediation, switching as appropriate.

Whatever you decide, acknowledge the strengths of the other person's approach. Remember that your co-mediator, like you, is a person with talents and shortcomings, feelings and even an ego. Tread lightly when expressing your discomfort and avoid embarrassing your co-mediator.

To Be Or Not To Be ... a Mediator

Yesterday I received a call from a woman who had been enthusiastically pursuing a career in mediation, until words from one of her friends filled her with trepidation. In short, the friend warned:

“There are non-lawyer mediators who have "successful" practices but the ones I know of are social workers or therapists and the mediation is generally an offshoot of their practices. The problem with many is that they don't have the financial or tax expertise so there are significant gaps in their work product.. ... I do remember one story from years ago which had a dry cleaner moonlighting as a marriage counselor/mediator after hrs. No doubt it was spread by disgruntled and unemployed lawyers and therapists but was repeated in all the bars and nightspots to demonstrate the lack of regulations in the field.”

In actuality, one does not have to be an attorney to be a mediator. However, it is important to develop a specific mediation niche or expertise when starting a mediation practice.

To use a medical analogy, becoming a doctor is not enough when developing a practice. A successful practitioner will often develop expertise in a specific area - both for the purpose of developing a deeper knowledge, as well as to be able to attract patients who are looking for someone who deals with their ailment.

As the mediation field matures, specialization will become more common among mediators. And, of course, it makes sense to specialize in an area with which one is already familiar. So, a social worker might become a family-centered mediator, while a contract attorney might focus on contract disputes within their mediation practice, etc.

Two key questions for anyone starting a new practice is "How do I attract new clients?" and "How do I mediate disputes successfully?"

The answer to the first question is "marketing." A contract attorney who decides to branch out into mediation will most likely have an easier time attracting mediation clients because s/he is already known to people who have contract-related disputes. However, a constitutional attorney may have a challenge in attracting commercial mediation clients, despite having a stellar reputation in her/his field.

As a non-attorney entering the mediation field one should consider their most likely client base, as well as how her/his previous experience might be highlighted as relevant to mediation. For example, a nurse with geriatric care experience might want to pursue an elder-care mediation practice as opposed to a divorce mediation practice.

The second question rests on one's reputation, which is largely based on performance. This is where the comment about knowledge of financial or tax matters might be relevant to a specific type of practice. For example, while it is not necessary to be a Trust & Estate (T&E) attorney to mediate a dispute involving family members who are fighting over an inheritance, it is very helpful for the mediator to be familiar with T&E concepts (e.g. GST: Generation-Skipping Tax), as well as the legal implications of various ideas that might come up in the course of a mediation.

This is somewhat of a double-edged sword because a good mediator has to strike the right balance of knowing enough to understand the relevant concepts, but not to force her/his opinions on the parties (some would even say that a mediator should not offer any opinions at all, regardless of her/his expertise).

Most parties will not appreciate this distinction, which presents an opportunity for the mediator to educate potential clients about what questions to ask a mediator. Some may choose a field expert, others a [mediation] process expert. As long as the mediator properly sets the clients' expectations, parties may not mind bringing the mediator up to speed on the details of their case.

The mediation field has not yet caught up to other professions in the area of certification, peer review or public awareness. This lack of industry-wide standards allows anyone to call themselves a mediator without having to prove their qualifications. And as this issue is being addressed by the field, the "unqualified mediator" issue can be put to rest.

Mediators should be evaluated on the basis of their training, depth of experience, and effectiveness during a session. A profession or vocation are not good proxies for determining if a mediator is good. A recent article in the New Your Times makes this point.

Two of the best ways to develop your mediation skill set are to find a mentor who will help you develop your skills and find a grass-roots organization that needs volunteer mediators. Mediating community cases will enable new mediators to develop their own style, hone their skills and help establish their reputation.

In summary, to become a successful mediator, follow these steps:

• Invest in reputable mediation training
• Volunteer in a community dispute resolution center
• Determine your mediation niche and develop an appropriate marketing plan
• Draw on your current expertise and professional network to begin your practice
• Leave your clients feeling well-served by your work

As with any business, it will take several years to develop a solid practice, but if you enjoy the work, the field offers a great deal of promise and opportunity.

Dealing with an Inconsistent Boss

Recently a client asked me how to deal with her difficult boss. She felt angry and upset about her manager’s duplicitous management style. He professed a democratic, consensus-building style while making command decisions. At the same time he seemed oblivious to the inconsistency and its impact on his staff.

My client was less upset about the command style – her manager could run the office as he saw fit. The frustration came from the gap between the manager’s self-image and the actual actions. This gap created distrust, anger, and was the reason for her calling me. Below is my summary of the advice I gave my client.

What to do?
The short answer is approaching your boss about a pattern of behavior you find disagreeable is risky. There is a very small chance that your boss will thank you for opening his eyes to bad behavior and offer you a promotion for speaking truth to power. A more likely response is that your boss will get angry, dismiss you (and your complaint), and will not welcome your presence and ideas for many meetings to come.

Does that mean you don’t let your boss know what happened? Hardly. In fact, your boss’s alleged transgression is a great opportunity to practice your conflict leadership skills, as well as build a stronger relationship. Doing this, however, requires a soft touch and clear understanding of your interests, as well as your manager’s.


Step 1 – Determine the trigger.
Before approaching your manager, make sure you understand what happened. It’s important to determine the exact trigger (or triggers) so that you can effectively relay your complaint to your boss. Specific issues are more actionable and easier to address.

• When did you first feel that something was amiss? Was it in a meeting when you were caught off guard by a decision or was it an email that copied the world about something that thought was between you and him?
  
  
• What is so important about this particular issue that landed poorly with you? Was the actual conversation/email/etc. so egregious or was it a minor issue in itself, but served as a reminder of a larger issue? It’s an important distinction and we will return to it later.
  
  
• Did the way in which you found out play a role in your distress?Was getting the message in public particularly unpleasant? Or was the timing particularly poor? Maybe it was the method (email or phone vs. a face-to-face meeting).
  
  

Step 2 – Clarify the impact.
Now that you understand what triggered this incident, get clear on what effect that trigger have on you. It’s equally important to be clear about the impact the triggers had. Be mindful, however, of limiting the impact on you. Be careful to avoid the perception of trying to represent others (unless they specifically asked you to speak on their behalf).

• What was the emotional impact TO YOU of what happened?How did finding out what you did, in the way that you did leave you feeling? Offended? Betrayed? Livid? Alienated? All of the above? It is critical to accurately identify the impact of the incident on you. It is equally critical to contain these reactions to you and only you.
  
  We are often tempted to buttress our points by herding others’ experiences with our own (e.g., I am not the only one who feels this way. The whole group thinks so, too.). The likely impact of such a statement is alienation and defensiveness from the person hearing it. After that, there will be little chance the person will remain open to your point.
  
  
  
  
• Was there an impact on others? If so, identify it, and then reframe it as impact TO YOU.
  
  It is quite possible that in addition to the impact on your work, your boss’s failing impacted your staff, colleagues and others. You may even feel that it is your duty to inform your boss of this. However, in doing so you are risking appearing arrogant and giving your boss an easy excuse to dismiss your point. (After all, who do you think you are to purport to know better than your boss about the impact his action had on others? Or did you go talking behind his back? - See where this could go?)
  
  You will be on safer ground by describing this part of the issue as feeling protective of your subordinates who, might have to work late, etc. Phrasing the problem this way will make the point without intruding on your boss’s authority as well as make you look like a good manager who is concerned about your people.
  

Step 3 – Set your goal.
The last step before asking for a meeting is making sure you know what outcome you would like. It helps to be as specific as possible. Do you want your boss to be more inclusive or just more consistent about the style he applies? Becoming clear about what behaviors you would like to see is vital to having a successful meeting.


As soon as you determine your goal, understand that you might not even bring it up in your initial meeting. In fact, it might take several conversations before your boss invites you to let him know how to act differently. So, be ready, but not attached to this part of the conversation.

Step 4 – Choose your location and timing.
Once you understand the trigger, its impact on you and what you would like your boss to do differently, it’s time to meet with your boss.


Pick a time and place that is more conducive to him being receptive and engaged. Be sure to consider the time of day of your meeting, your boss’s mood, energy level, etc. Also think about where you would like to meet.


It would not serve your purpose to make your boss feel set up for a public shaming. Since you are taking the leadership role in approaching your boss, it is up to you to pick a place that is most appropriate and conducive to your conversation.


You could ask for a meeting in his office; a conference room, or, even a local coffee shop. Any of these could work, as long as he understands that your proposed location is aimed at making him feel more relaxed, comfortable, and free from public scrutiny.


Step 5 – Invite your boss.
When asking for a meeting, select an approach that subtly communicates the importance of the meeting to your boss. The manner in which you make the appointment is up to you, as long as it shows that you are serious about the meeting without making your boss feel caught off guard. Beware of making him feel forced to see you. If he does, it will make it that much harder to communicate your points effectively.


Your boss will likely ask what the meeting is about. Saying “I didn’t like what you did and want to discuss it” is risky as it will likely put your boss on the defensive. You might say something like “I received an email that concerned me” or “I heard something in a meeting that concerned me.” Using this phrasing you are being truthful and alerting your boss as to the broad theme of the meeting without making him defensive.


Step 6 – Have the conversation.
It is likely that the beginning of the meeting will feel tense, at least for you. This is natural and that feeling will go away quickly once you delve into the meeting. Of course, acknowledge the accommodation your boss made by seeing you. This will make your boss feel more relaxed, engaged and willing to hear your point.


In communicating the substance of your grievance, follow these rules:

• Be sure to stay on your side of the line between your boss’s actions and their impact on you. SPEAK ONLY ABOUT THE IMPACT.
  
  
• Avoid labeling your boss’s intention and actions.
  
  
• Be specific about the trigger(s) which caused your original upset (refer to Step 1). Make sure to limit your triggers to the number your boss can digest.
  

For example, you might say: “When I received your April 10 email, I became upset because of what I perceived as ...” or “When I heard you say ... in our April 10 meeting, I became upset because of what I perceived as ...” Use this specific language to allow for room between your boss’s intentions and your perceptions.


Once you explained your point, give your boss a chance to respond. Don’t overwhelm him with too much information and emotion. If your boss seems engaged in the conversation (even if it is only with his body language), from this point forward let him take the lead by remaining silent.

In most cases breaking the silence will take a few seconds. Your willingness to remain silent will let the boss know you are waiting for him to take charge of the conversation. From this point on, if he asks you more questions about what happened, answer them. However, don’t try to drive more points home, or insist that he take some corrective action unless he invites your suggestions.

You may have to wait for your boss to commit the same mistake twice and repeat this conversation at that time. If you do it effectively, each time your boss will be more trusting and more accepting of your suggestions (assuming you keep each conversation confidential).
If your boss tries to change the subject or avoid the issue during your meeting, bring it back to your point by restating the impact on you: “I am still upset about the email/meeting.” Remain respectful and patient - some people need longest to enter into a difficult conversation.

However, during your meeting, continue to come back to your point until you get acknowledgement. At some point your boss will likely acknowledge your point by asking you a question about it. Once he does, you have dialogue.