Discussions

Lynn Johnson

According to the ABA/AAA/ACR and others, “Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to the dispute.”  Mediation is an intuitive process that when done right, “just works.”  Being the neutral third party, a mediator, who “does it right” takes training and practice. This article will explore where mediation came from, its common sense principles, and its potential to evolve.  

Without getting too philosophical, it’s not hard to imagine a story for the evolution of mediation.  That story might go something like this. As long as there have been people, there have been differences between each one of those people and all the others – people are unique.  The potential for disagreement exists when the needs or desires of any two people are not the same.  

People who are not involved in the disagreement can ignore it, support one of the disagreeing parties, or they can act as a neutral attempting to help the parties find a peaceful resolution. Whenever the relationship is important enough, or the consequences of the dispute severe enough, neutral outside parties can intervene out of concern for the parties. 

Historically, it is reasonable to think some people were better than others at helping disputing parties find agreement.  As a result, successful neutrals might have been asked to help more often. Successful neutrals got more opportunities to learn and improve their knowledge and skills. 

It’s likely that successes were talked about and passed on so it’s reasonable to assume that being a neutral, a mediator, evolved as did the skills and knowledge they learned.  Having successful outcomes and having successful resolutions that lasted, would seem likely reasons for mediation to sustain and become more widespread.    

Given that mediation has sustained and become more widely accepted, what are some of the assumptions and principles that are characteristic of successful mediation?  Since most mediation training shares assumptions and principles, that is a place to start looking for answers.

Common assumptions include: 

1. People know what’s best for themselves.
2. When people are given appropriate information and a safe environment for decision-making they can make good decisions.
3. Often what people ask for is not what they need or even what they want.
4. Agreements last longer when they are created by the parties themselves.
5. The mediation process can rely on common sense parties have and trust.
6. The best solutions offer what the parties need without requiring anyone to give up something they value.
7. People respond best when they feel respected and heard.

A core set of principles that support those assumptions includes:

1. Mediation works best when the parties are free to take part or not. 
2. Making the communications and other works of mediation confidential, inadmissible, and not discoverable, encourages parties to share more openly and effectively.
3. Having the parties be responsible for decisions about who the mediator is, what the process is and what the rules are is very important.
4. When parties can trust the “good faith” participation of the other parties, they can take part openly revealing relevant information that can make agreement possible.
5. Understanding that having an opinion or perspective that is different from that of the other parties does not mean you are right, or they are wrong.

As a dispute resolution method, mediation has unique strengths. Mediation is not rocket science, most people can use it effectively.  Most people naturally want the reduction of tension and the useless expenditure of energy that mediation can deliver.  Mediation relies on the collective knowledge and collaboration of the parties.  The mediation process is confidential, that contributes to more willing and open participation of the parties. Outside authority or agency is not required.  Mediation can be applied close to the issue and when it’s needed.  Since mediation is less expensive, it can be used by more people in more situations.  Further, mediation uses the skills and knowledge people use in their everyday lives.

Mediation’s use is growing globally. Whether it continues to grow or retreats into disuse is a question for history.  Reasons to be optimistic exist. Mediation is part of what people do naturally so it evolves with the integration of knowledge and technology into peoples’ lives.  It is available to the widest set of people.  Mediation relies on skills and knowledge that are distributed normally in the population.  Mediation can be applied to the widest range of issues including cross-jurisdictional and emerging technology disputes.  People intuitively trust mediation and practice it where and when they feel it’s needed.

Given all this, what is likely to happen to mediation as a practice?  Informal mediation is likely to stay as long as people find it useful.  But because informal mediation is informal, it may not fully take advantage of the evolution of knowledge and technology.  

The formalized practice of mediation must prove itself as have other professions such as medicine, law, psychology, chemistry etc. The the public must be assured that mediation practitioners follow agreed ethical guidelines and that information is easily available to help select appropriate mediators.  Practitioners must be assured that if they qualify to be identified as practitioners of formal mediation and adhere to the ethical codes of the practice, they can expect to enjoy the status and protection of a professional.

by Lynn Johnson

We all know there is no substitute for practice, especially in a skills and brains activity such as mediation.  In basic mediation training we learn a process, and we learn and practice the skills to carry out the process. Some skills, like flat-reflecting, are easy to learn and others like active listening need patience and lots of practice.

We’re taught to trust the process.  Generally that means that if we respect the parties, listen to them, learn their wants and needs, and help them explore options; sometimes a magical thing happens and an agreement appears. To make that “sometimes” more frequent we need to pay attention to what we did and how it was received. 

When we work as a team in co-mediation and when we practice role-plays in classes, we use “debriefing” to get feedback that helps us improve. Debriefing can be effective and powerful when a skilled mediation instructor is included.  But when we go out into the everyday world to mediate cases on our own, we may not have the help of another skilled mediator to give us that objectivity in debriefing. 

We can use professional development groups and in-service meetings for some of that valuable debriefing, both can be effective.  But they do not generally occur immediately after a challenging mediation. Further, the shared time they offer may not be as relevant as immediate post-mediation debriefing. 

 A variety of debriefing structures exist and some can be used independently, without requiring another skilled mediator.  Recently I was  impressed by a simple debrief/feedback structure the Clackamas County Resolution Services folks use in their training.  The structure is straightforward and flexible and can be used by one or multiple people depending on who was present at the mediation.  There are two or four questions/statements depending on your objectives.  Here they are: 

1. What I liked about my work in this mediation is . . . 
   For example, “When I noticed P was providing a variety of reasons the proposals offered by D were not acceptable, I asked him/her to describe what an acceptable solution would include.”   
   
   This question should be used to name three specific things you liked about what you did as the mediator.  They should be positive and give reasons why you liked them.  Try hard to find at least three of these.
   
2. One thing I may try is . . . 
   For example, “One thing I might try when parties are cooperating and generating options is to stay quiet but show by my posture and expressions that I am engaged and there to help.”
   
   This question should also be positive and name something you would like to try because you think it might reinforce the mediation process.
   
   (The next two questions may be more constructively used with a coach, but they can be used in self-appraisal as well.)
   
3. (coach speaking) A growth message I have for you is . . .
   For example, “A growth message I have for you is to trust you ability to apply the mediation process by putting the responsibility for progress into the hands of the participants.”
   
   (in self-appraisal it might look like this)  “I want to learn to be comfortable allowing the parties to . . . I believe this will re-engage the parties and uncover some real needs.”  
   
   This question should name a skill or concept that can drive learning to another level.    
   
4. (coach speaking) How I imagine that would look in your work is . . . 
   For example, “How I imagine this will look in your work is learning to be comfortable allowing the parties to explore options when you have a perfectly good solution in your own mind.”
    
   (in self-appraisal it might be aspirational but it must be realistic to be meaningful.)  “How I imagine that might look in my work is that I will be able to take ____ (some kind of challenging) cases and feel comfortable in my ability to provide quality mediation.”
   
   This should conceptualize the effects of the growth message.  
   

This series of questions/statements, especially #1 and #2, can be used by the mediator herself/himself, and a coach, a co-mediator, or a mediation supervisor, or even an observer or outside evaluator.  The goal is to have a simple yet effective process that you will use because it’s easy to do and it works; debriefing doesn’t work unless we do it. 

After our mediation experiences, like most of our personal experiences, we may ruminate on the extremes, basking in the achievements and finding “reasons” we were unable to do better.  This structure works because it identifies the positive elements of what we did, considers them, and tries to make sense of how they work.

(Any good ideas expressed here should be credited to Lauren MacNeill and Chandra Emery of the Clackamas County Resolution Services.  The not so great ideas are those solely of the author.)  

Some people think and plan and eventually get around to requesting that someone else do something;  other people see an opportunity and a need and make things happen.  Caroline Torosis is definitely one of the later group and the new ODR program at the DCBA is proof of that fact.

In 2014, Caroline Torosis attended the annual Online Dispute Resolution (ODR) Conference at Stanford and by the second half of 2015, she had an operational ODR program at L.A. County’s Department of Consumer and Business Affairs (DCBA.)  Online dispute resolution means many things to different people but for the DCBA it meant being able to deal with a case load that grew from fewer than 500 in 2012-13 to over 3000 in 2014-15.

The DCBA was fortunately well positioned to deal with the problem by having a trusted and efficient case management system and a great support staff in place.  However, lots of agencies across the U.S. have robust case management but never implement ODR in any real and significant way.  But the DCBA had Caroline Torosis and a staff of committed professionals in the DCBA office, as well as in IT support.

In order to implement ODR, the DCBA needed several new components as well as a well executed plan.  They needed:

• an online communication and collaboration tool,
• a scheduling system to arrange communications between mediators and parties,
• a web presence to allow parties to make first contact, find forms and learn about the program,
• a bunch of mediators trained in the concepts and best practices of ODR,
• a plan to put it all together, and
• the funding support of the DCBA and several other L.A. County agencies.

Starting with a strong and effective case management system provided a platform from which to develop the total ODR implementation.  Moving outward, toward the parties and the mediation process, required the development of processes and tools to enable the mediators and staff to capture case information, schedule meetings and communications events, and record the progress of the case.  This was accomplished by creating web based tools for scheduling and reporting to support the processes and procedures to use those tools.

The mediation staff needed communications and collaborations tools to support their online work – rather than trying to develop those tools, the DCBA chose to use the Zoom collaboration package.    Because Zoom is used by a number of other ODR programs it was possible for the DCBA to take advantage of an existing ODR training program that incorporates Zoom for chatting, collaboration, video calls, and end-user/party tools.  This eliminated the need for the DCBA to develop software for end-users/parties, other than web based tools supported by browsers.  Further, Zoom sessions provide simple links the parties can use to join a session without requiring user names and passwords.

Selecting Zoom as the mediation communications and collaboration tool realized one other significant advantage.  Using Zoom meant that the DCBA could leverage the expertise of Giuseppe Leone and his program to train mediators in the use of ODR.  It would be hard to overstate the importance of having a known tool for such a critical function and further having the experience of using that tool that Giuseppe and his program provided.

With the case management, scheduling, and collaboration components in hand and staff trained in the use of the tools, the only remaining components were the parties and the actual cases.  To find those parties and cases, the DCBA called on its existing administrative processes for filtering potential cases to identify those that were appropriate for ODR.  The DCBA also enhanced its web presence to provide potential parties web based tools to self-identify as potential ODR participants and request assistance.

It is important to acknowledge the importance of the role of technology support required in such a development.  Not only does the case management system have to have the normal security and administrative procedures IT administration demands, but so do all the special web procedures and processes developed specifically for the program.  Reducing the external requirements to a single package – Zoom, allowed IT to maintain the control required to ensure security and effective support.

Summary

The smart and effective use of available resources and best practices in the emerging ODR field made it possible for the DCBA to develop and implement a program which can serve a rapidly growing demand, integrates with other programs within the department, and can scale for use in other applications.  Anyone who has ever worked in a large bureaucratic organization such as the County of Los Angeles, understands and must appreciate the speed and great decision making that have gone into this development.  The ODR program at the DCBA stands as an example to hundreds of other agencies who have an acute and growing need for dispute resolution and especially the advantages provided by ODR.

• Remember settling the security deposit is part of the rental agreement and treat it seriously and honestly – the court will expect you have.
• Know your responsibilities. Make sure you have documentation to show your appropriate actions and understand the rules about “normal wear and tear.”
• Inform the tenants of their responsibilities and their rights. Refer questions to California Tenant.2
• Don’t cut corners – do it right. If you need help with an unusual situation – get help.
• Plan for potential outcomes. Calculate your costs, including your time.
  Do things to encourage

• Remember the rental agreement is a business contract and the tenant is your business partner in that contract – treat her/him as such.
• Know your responsibilities. Don’t cut corners – do it right.
• Inform the tenants about the process and what an Unlawful Detainer court will and will not decide.
• Inform the tenants of their responsibilities and their rights. Provide copies of or reference to the California Tenants document.2
• Plan for potential outcomes. Calculate your costs – know how much you can afford and how long you can wait to re-rent the unit.
• Do things to encourage good behavior and good outcomes.