Mediation Theory Archives - NC Business Lawyer https://nc-businesslawyer.com/category/alternative-dispute-resolution/mediation-theory North Carolina Business & Construction Lawyers Mon, 07 Sep 2020 12:12:55 +0000 en-US hourly 1 https://wordpress.org/?v=6.6.5 https://nc-businesslawyer.com/wp-content/uploads/2020/03/cropped-Meynardie-Nanney_favicon2-32x32.png Mediation Theory Archives - NC Business Lawyer https://nc-businesslawyer.com/category/alternative-dispute-resolution/mediation-theory 32 32 Narrative Mediation in Civil Cases https://nc-businesslawyer.com/narrative-mediation-in-civil-cases https://nc-businesslawyer.com/narrative-mediation-in-civil-cases#respond Mon, 07 Sep 2020 12:07:55 +0000 https://nc-businesslawyer.com/?p=49910 Bob Meynardie was interviewed by Professor John Stephens as part of his mediation curriculum at the University of North Carolina School of Government.  Bob was asked to discuss the role, if any, of Narrative Mediation in the resolution of commercial and construction disputes. UNC School of Government InterviewDoes Narrative Mediation Have a Role In Civil […]

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Bob Meynardie was interviewed by Professor John Stephens as part of his mediation curriculum at the University of North Carolina School of Government.  Bob was asked to discuss the role, if any, of Narrative Mediation in the resolution of commercial and construction disputes.

UNC School of Government Interview
Does Narrative Mediation Have a Role In Civil Case Disputes?

Remote Interview - Narrative Mediation Interview - Bob Meynardie from SOG- ITD on Vimeo.

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]]> https://nc-businesslawyer.com/narrative-mediation-in-civil-cases/feed 0 Exploring Neutrals’ Neutrality: A Narrative Approach https://nc-businesslawyer.com/exploring-neutrals-neutrality-a-narrative-approach Sat, 04 Apr 2020 20:52:50 +0000 https://nc-businesslawyer.com/?p=49778 Neutrality and perhaps as important the perception of neutrality is one of the most precious assets a mediator brings to a mediation.  In facilitative and evaluative mediation, the two predominant models used in civil case mediation, mediators work hard to maintain their ability to engage the parties from a position of neutrality.  This tension is […]

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Neutrality and perhaps as important the perception of neutrality is one of the most precious assets a mediator brings to a mediation.  In facilitative and evaluative mediation, the two predominant models used in civil case mediation, mediators work hard to maintain their ability to engage the parties from a position of neutrality.  This tension is never higher than when we use evaluative skills as a neutral.   To the extent we evaluate the claims — either voluntarily or at the request of a party — the perception of neutrality can evaporate quickly.  Once a neutral expresses an opinion or evaluation, the parties may perceive that the mediator is defending that opinion instead of serving from a position of neutrality.  Facilitative mediation training spends a great deal of time dealing with this issue.  

Narrative mediation theory, which I have been exploring here, posits that actual neutrality is impossible because we are all subject to the inherent biases that are based upon who we are — gender, race, socio-economic backgrounds.  From the narrative perspective, a mediator cannot serve a wholly impartial function.  However, acknowledging the cultural biases that constantly influence us makes it much easier to treat the parties impartially.

Remember that narrative mediation theory is premised upon the belief that people understand the events in their lives — including the conflict events — as part of a story.  In order to understand those events people place them into the context of a story or narrative.  These narratives, in turn, are based upon assumptions (or discourses) that are different for different people depending upon their cultural context.  For instance, people from different countries or cultural backgrounds will interpret events differently because of the narrative through which they understand those events.

Understanding these differences, narrative mediators recognize that we too interpret events through our own cultural discourses.  In other words, we come to every mediation with our own biases in how we see the world.  This is perhaps obvious but what is important to learn here from the narrative perspective is that we, as “neutrals,” must critically examine those biases as they might affect our neutrality.  

Whereas it is true that mediators come into every conflict with inherent biases based upon their background and experiences and therefore are not neutral as narrative mediation uses that term, this is not the type of neutrality the Courts require of “neutrals.”  Nor is it the definition of neutrality that is critically important to serve impartially as a neutral in civil litigation cases.

Neutrality as we define it is better described as impartiality.  It is undoubtedly true that a 60 year old male caucasian mediator will not naturally place employment discrimination events described by a female person of color into the same narrative discourse as the storyteller.  It is also true, however, that a mediator who understands his or her cultural biases is far more likely to be able to understand the teller’s discourse and narrative than one who assumes he is neutral.  It is the ability to understand the narrative and its underlying discourses that allows a good mediator to demonstrate the impartiality necessary to serve as a neutral.

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]]> Is Your Mediator Stupid Enough? https://nc-businesslawyer.com/is-your-mediator-stupid-enough Fri, 03 Apr 2020 12:51:57 +0000 https://nc-businesslawyer.com/?p=49768 I recently read an interesting article by a mediation trainer suggesting that he actively encourages new mediators to become “more stupid.”  In the article, Michael Jacobs contends that “stupidity and ignorance are essential assets” of a good mediator.  His point is that mediators — like most people thrust in the middle of disputants — have […]

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I recently read an interesting article by a mediation trainer suggesting that he actively encourages new mediators to become “more stupid.”  In the article, Michael Jacobs contends that “stupidity and ignorance are essential assets” of a good mediator.  His point is that mediators — like most people thrust in the middle of disputants — have an almost insurmountable desire to figure out the problem and lead the warring factions to a resolution and that this should not be our role.  Jacobs contends that

The success of mediation is often in direct proportion to the mediator’s ability to resist the impulse to coax the parties in the right direction.

A facilitative mediator’s role, according to Jacobs — which parrots in some ways the narrative mediation model that I have begun to explore in this blog — is to “walk behind the parties and simply pick up the stuff they drop.”   The practice of stupidity is a recognition that the mediator’s role is not problem solving.  Instead, conscious ignorance is a pre-requisite to the process of discovery.  Listening (picking up what the parties are dropping) without judgment clouded by our own opinions (practicing stupidity) is for Jacobs the essential task of the mediator.  Does the not so simple task of listening with empathy to the  narrative constructed by the parties open the space to alternative narratives and resolution?

We have all had mediators who believe they understand our case better than we do after an hour long general session. If we hired that mediator because of his or her experience in the substantive area of law, they may have been justified in thinking that the parties wanted some forceful evaluative form of mediation.  It has never been successful in any mediation I have been a part of because there is always so much more to the conflict than just the substantive dispute.  

I think Jacobs’ point is that through empathetic listening and forcing the parties to explain their position rather than leading them toward a solution that may be obvious to a neutral is the best way to allow them the space to understand the other narrative.  That’s not exactly how he put it but is my narrative-based interpretation.  In any event, the article is worth your time.  Read it here.

Conflict ‘shrinks’ us.  The stories disputants construct … feature clear cut dichotomies of who’s right and who’s wrong.  This kind of clarity leaves little room for doubt.

And little room for a negotiated peace.

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]]> What Every Advocate Should Know About Narrative Mediation https://nc-businesslawyer.com/what-every-advocate-should-know-about-narrative-mediation Mon, 16 Mar 2020 14:13:00 +0000 http://nc-businesslawyer.com/?p=49683 Become a better negotiator by understanding the psychology of narratives.

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As briefly described in a previous post, I have been studying a mediation model called narrative mediation and implementing some of its techniques in my practice.  Narrative mediation techniques are focused on improving the relational aspects of conflict — that is improving the relationship of the parties.  This is why narrative mediation has a strong foothold in family mediation and community mediation in some places and why it is not a predominant model in civil litigation.

However, after a year or two of studying this model and using it in my civil litigation practice, I believe it is a mistake to simply ignore what we can learn from it simply because the model is focused on a different (broader) goal than simply resolving the dispute. Mediators and advocates alike can gain insights and sometimes a pathway to settlement that can be missed in a more traditional problem-solving model.  As a way of examining conflict it not only adds to a mediator’s toolbox but is useful to advocates in their negotiations.  For this reason, this post is the first in a series on narrative mediation as taught and how it is impacting my negotiations and mediations.

Why Should You Care About Narrative Mediation Theory?

In my experience as both an advocate and a neutral, one of the primary reasons that resolving conflicts is difficult is because the parties have different “facts.”  What do you do when your opposite party in a mediation (or negotiation in general) has a different set of facts.  There is only one objective set of facts, right?  So, the other side must be lying or acting in bad faith in some way.  This conclusion can be an insurmountable obstacle in mediation.

The question for a mediator (and an advocate trying to resolve the conflict) then is how do we help parties resolve a dispute when both parties have perfectly credible and completely opposing views of the facts.  Mediators try to find common ground, help the parties explore the costs and risks of not settling and the possibility that the judge, arbitrator, or jury might see those facts differently than they do.  In most cases, this analysis facilitated by a good mediator is enough to accomplish the task of finding a compromise that both parties can live with.  Mediation as civil mediators, myself included, were trained (primarily what is called facilitative mediation) is very effective but what if there were techniques that could not only help more cases settle but could help the parties find more than a grudging compromise.  In my experience understanding the narrative mediation perspective and some of its techniques offers such an opportunity.

Is there such a thing as objective truth?  Lawyers are trained to seek the truth; what makes good lawyers may be a conviction that there is an objectively defined truth.  But the focus on objective truths is a handicap in many mediations. Settlement in mediation is almost never reached by a determination of THE truth. Trying to find it may in some instances help the parties understand how their subjective understanding of the truth has lead to conflict but it often is not only a waste of time but may also lead to a loss of a mediator’s most important tool: perceived neutrality.  Time and time again as a mediator, the truth as understood in one room differs significantly from the truth in the other room(s).  Mediators hear completely irreconcilable versions of the facts all the time.  Fortunately, it is possible to resolve civil disputes without finding the “objective” truth.

Mediation is not good at discovering the objective truth, nor is that it’s purpose.

I often tell litigants that if they want someone to tell them they are right and the other side is wrong mediation is the wrong place.  This is why narrative mediation and the techniques employed by narrative mediators can be so valuable.

What Is Narrative Mediation?

Narrative Mediation has been described as both an approach and a methodology.  Although the methodology is important and shares many ideas with facilitative mediation, it is beyond the scope of this introduction.  Understanding the approach and the perspective of narrative mediators is valuable even without studying the model’s techniques.

Narrative mediation is based upon the premise that people understand facts (what we might call objective facts) by placing them  into a story or narrative.  That is, the facts themselves do not stand alone.  Usually, many details of the story are not known.  The gaps in the narrative are filled by assumptions that are framed by our past experiences, dominant story themes, and cultural context.  As Gerald Monk — one of the chief proponents of the model — said in an interview: “We have this capacity to, very quickly, make meaning of any human event by linking particular, discrete plot events and combining them, to be able to then tell a story. This capacity of human beings to make meaning through the story is a very central element of narrative work.”  Through what is called de-constructive listening, among other techniques, narrative mediation attempts to understand the basis of the “conflict narrative.”

Monk and others are focused on a different goal than simply settlement.  Since civil litigation mediation is focused on settlement, one of the primary benefits of understanding the narrative approach is to open the parties to the possibility that their facts might fit a different narrative.  To oversimplify, by helping the parties see the controversy from the other’s perspective hopefully leads to a loosening of the belief that the other is a “bad guy.”  This in turn opens the wider opportunity for compromise.

How Does This Help My Client?

Some civil litigation conflicts are based upon a different interpretation of legal/contractual rights and obligations, some are based on one party having the leverage to take unreasonable positions, and some are based upon a lack by one party or the other of a full understanding of the provable facts (Note the lack of the term objective facts).  Whatever the reason, conflicts that are not quickly resolved all meet the following generic description by Gerald Monk:

I think that all conflict, that I can think of, comes down to a mismatch of expectations about what you thought should happen.

Understanding the basis of the differing expectations provides space for possible resolution even if the goal is not restoring a long-term relationship.  Much of this exploration is probably better done with the help of a neutral but it is a mistake for advocates to rely solely on the mediator to explore the foundations of the conflict.  In any event, it has long been my belief that the more you know about what your neutral is trying to accomplish the more likely the neutral is to help you accomplish it.

In future posts I intend to explore in more detail the theoretical underpinnings of narrative mediation, how those theories guide the techniques of narrative mediation, and how these techniques differ (or are similar to) from what we do in facilitative and evaluative mediation.

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]]> Narrative Mediation https://nc-businesslawyer.com/narrative-mediation-2 Fri, 11 Jan 2019 19:42:28 +0000 http://nc-businesslawyer.com/?p=299 For the past 18 months or so, I have been studying and trying to implement in my mediation practice, techniques from a “discipline” called Narrative Mediation. Narrative Mediation is not new even though it is relatively new to me. John Winslade and Gerald Monk published “Narrative Mediation: A New Approach to Conflict Resolution” in 2000. […]

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For the past 18 months or so, I have been studying and trying to implement in my mediation practice, techniques from a “discipline” called Narrative Mediation. Narrative Mediation is not new even though it is relatively new to me. John Winslade and Gerald Monk published “Narrative Mediation: A New Approach to Conflict Resolution” in 2000. Winslade and Monk’s work in turn grew out of narrative family therapy concepts in use in Australia since the mid-1980s.

At the risk of over-simplifying, the techniques championed by Winslade, Monk, and others are based upon the idea that people understand facts within the context of a story or narrative. In a conflict, the narratives lead to differing understandings of those “objective” facts. Those narratives are based upon one’s point of view such that the facts are rarely completely objective. In other words, we all see facts through an interpretive lens.  A person’s point of view is in turn dependent on one’s socio-cultural context.  Unpacking the competing, conflict-laced narratives is part of the mediator’s job — according to narrative doctrine it is the whole job.

Consider the following hypothetical: employee has a non-compete and/or a non-disclosure. He leaves his employer and goes to work for a competitor. Whether or not the employee technically complies with the non-compete, the employer sees the move as a betrayal and believes that the employee is using confidential information to compete. Couple this with a predictable defection of customers and the employer “knows” that the employee is violating their agreement.  The only “objective” facts in this narrative are that the employee resigned, is working for a competitor, and the employer has lost some business.

The employee, on the other hand, left the employer because he was passed over for promotion or was slighted in some other way and believes he should be free to work where he is respected. So, he goes to work for a competitor just outside the geographic or other limits of the non-compete or he gets a legal opinion that the non-compete is unenforceable.

Both narratives lead to “legitimate” and hardened positions. The narrative mediator’s job is to help both parties explore the underpinnings of these narratives and understand the other side’s narrative. Even this cursory overview of Narrative Mediation would be incomplete without a mention of the need for the mediator to examine the affect of his or her own socio-cultural context on the competing narratives. Good mediators are neutral in the ordinary sense but interpret facts through a narrative too.

Mediators certified for civil cases in North Carolina are trained in what narrative practitioners call problem-solving mediation based upon the tenets of Fisher & Ury’s “Getting to Yes.” As an adherent to the facilitative approach based upon Getting to Yes, I recoil at the “problem-solving” moniker. Nevertheless, there is a lot to learn from the narrative methodology.

So, what tools does narrative mediation offer for a case like our hypothetical?   Follow my blog, as I explore some of the narrative concepts that I have begun employing and discuss how these tools supplement and can improve mediation outcomes.

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]]> The Mediator’s Role In Positional Bargaining – Part 1 https://nc-businesslawyer.com/the-mediators-role-in-positional-bargaining-part-1 Wed, 02 Sep 2015 02:38:15 +0000 http://nc-businesslawyer.com/?p=396 In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, […]

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In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution.

If, in fact, negotiations in mediation become an exchange of offers and demands that (hopefully) are moving toward each other, what is the value added by a mediator? Can’t the parties simply exchange these numbers without the benefit of mediation? As a practicing litigator and mediator, the theoretical answer may be yes but in practice negotiations rarely progress without an active, neutral intermediary. Given the practical reality, how does mediation and a good mediator affect the dynamic so profoundly?

In my experience, the primary value of mediation is that it facilitates the flow of information. We start with the premise that in the absence of some legitimate opportunity for resolution there is no reason for a litigant to share facts or their potential significance with the other side prior to trial. In addition, there are plenty of reasons to hold back. One of the mediator’s most important roles then is to help litigants understand the pros and cons of sharing information. Every litigator has faced the critical question of whether to play an important card at mediation in the hope of settlement when that card is better held close until trial if the case does not settle.

The strategic decision to divulge or not divulge key pieces of information is obviously a decision for the parties and their counsel. Mediators will always favor full disclosure as it is more likely to lead to settlement. However, mediators can facilitate this process by helping analyze the potential impact on the negotiations of the disclosure and the impact at trial as well as help analyze the impact of the timing of any disclosure on the settlement negotiations.

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]]> Getting to Yes: Focus on Interests Not Positions https://nc-businesslawyer.com/getting-to-yes-focus-on-interests-not-positions-2 Thu, 12 Dec 2013 02:49:11 +0000 http://nc-businesslawyer.com/?p=414 By far the most often quoted tenet of “the Method” is to avoid positional bargaining and instead focus on the underlying interests of the opposite sides. Fisher & Ury illustrate their point with the story of two people in a library arguing over whether a window should be open or closed. The opposing positions are […]

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By far the most often quoted tenet of “the Method” is to avoid positional bargaining and instead focus on the underlying interests of the opposite sides. Fisher & Ury illustrate their point with the story of two people in a library arguing over whether a window should be open or closed. The opposing positions are open on the one hand and closed on the other. Hearing the argument the librarian comes over and learns that one party wants the window open for the fresh air and the other wants it closed to avoid the draft. Both people’s interests are satisfied when the librarian opens a different window. The illustration is useful and the point obvious once it is pointed out to us but how often are interests easily ascertained and separated from the stated positions. Fisher & Ury’s example also illustrates the point that to reach an agreement it is not necessary to find shared interests. It only requires finding complementary interests (actually non-complementary interests that do not conflict are sufficient).

In civil litigation, the parties positions are pretty readily apparent. Pleading rules require the parties to state the factual and legal basis for their claims and affirmative defenses. In contrast, oftentimes parties are not consciously aware of their own underlying interests much less the interests of the opposing side. So, how do we go about determining the parties’ underlying interests — without addressing the respective interests a mediator is unlikely to be successful.

Fisher & Ury teach that the best ways to uncover underlying interests is to ask yourself and your opponent two questions: why and why not? First, try to put yourself in their shoes and ask yourself why are they taking the position they are taking? Then try to understand why they are not willing to do what you are asking them to do? Why and why not? Most times in mediation, the parties are in a better position than a mediator to understand their opponent.

The second step is to ask the opposing party why and why not. This is where the true value of mediation lies. It is difficult to ask anyone about the interests underlying a position without making them defensive about the position. If the exploration of underlying interests becomes a justification of the position the entire exercise is self-defeating. A good mediator can explore the parties’ underlying interests without the perception of attacking the positions.

In most civil mediations I have been involved with as either a mediator or an advocate both parties come to the table with a complex variety of interests. As I mentioned in a previous post, in one mediation I was a part of one of the counsel accused the opposite party of wanting only a pay-off. He had equated the party’s position (a civil action for money damages) with their interest and thereby trivialized the underlying interests. This mistake may or may not have been calculated but needless to say the mediation was doomed from the start.

It is fair to say that regardless of the strength or weakness of a party’s position, trivializing their interests is not a recommended path to resolution. It is also true that identifying and acknowledging the other side’s underlying interests goes a long way toward resolution even where positions are directly in opposition and hardened.

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]]> Getting to Yes: Separate the People from the Problem https://nc-businesslawyer.com/getting-to-yes-separate-the-people-from-the-problem-2 Tue, 22 Oct 2013 02:50:57 +0000 http://nc-businesslawyer.com/?p=417 The first tenet of what Fisher & Ury call “The Method” is to separate the people from the problem. Although I think I understood their point when I first read the book, over time what stuck with me was the title not the underlying principal. As an advocate and mediator dealing primarily with business disputes, […]

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The first tenet of what Fisher & Ury call “The Method” is to separate the people from the problem. Although I think I understood their point when I first read the book, over time what stuck with me was the title not the underlying principal. As an advocate and mediator dealing primarily with business disputes, it is tempting to try and simplify the negotiation by trying to convince the parties that they should put aside the emotional component and focus on the cost-benefit of settlement as opposed to the BATNA (Best Alternative To a Negotiated Agreement). When we do this we may speed negotiations toward resolution but in many cases we only speed the case to impasse.

“Getting to Yes” contends that every negotiator has two separate kinds of interests that must be addressed in the negotiation: 1) interest in the substance and 2) interest in the relationship. The point here is not to separate and dismiss the people problem but to identify, separate, and deal with it. (This is a good point to interject the question I am frequently asked: “Should I pick a mediator based upon his/her mediation skills or experience in the substantive area of law?” Ultimately, I believe the answer to this either/or question is yes, but that is a subject for another day).

“Getting to Yes” specifically addresses the negotiator’s interest in maintaining a relationship with the opposite party. Although the parties to legal disputes rarely want to actually maintain the relationship, this focus misses the point. The point is that there is an emotional (or non-rational) component to most disputes that cannot be resolved rationally. The choices are to ignore the emotional side or confront it. Only by identifying and confronting an underlying emotional or people problem can this obstacle be overcome. Sometimes when the stakes or costs are high enough the people problem can be ignored but ignoring it as either a mediator or an advocate is risky.

One of the most important aspects of the emotional side of a conflict is the way it colors the parties’ perception. I cannot count the number of times I have heard a client or an advocate recite a list of facts leading to the inescapable conclusion that the other side had bad motives when in fact those same facts might lead to a more benign conclusion on motive.

Fisher & Ury contend that conflict does not lie in “objective reality, but in people’s heads.” Lawyers are trained to deal with what we think of as objective facts but the perception of those facts can vary widely and is, at least as important as the actual facts. Perceptions are influenced by individual experience, prejudices, fears, aspirations. Watch any sporting event and note the absolute certainty with which two opposing fans perceive the justice or injustice of a close call. Neither side able to recognize that the call could have legitimately gone either way. Even more to the point, how many times do we conclude that the referee is either biased or bought off? Maybe he just saw the play from a different angle.

I completely agree with Fisher & Ury’s contention that the “ability to see the situation as the other side sees it . . . is one of the most important skills a negotiator can possess.” In my opinion, the ability to gain an understanding of the other side’s perception of the “objective reality” is one of the most important benefits of mediation. The ability to communicate the various perceptions and have them not only heard but understood is the most important skill a good mediator brings to the process.

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