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Should Workplace Conflicts use Mediation?

©2017 Bill Eddy, LCSW, Esq. and L. Georgi DiStefano, LCSW Mediators are being increasingly asked to help resolve workplace conflicts in a peaceful, non-litigated manner. However, at the same time, concerns in the workplace about bullying and unequal relationships have seemed to discourage face-to-face mediation. Can these two trends be reconciled? It’s important to address these issues. Many workplace conflicts escalate into major disputes, involving organizational time, money and emotional energy. Some of them turn into legal disputes or administrative decision-making. There may be claims of sexual harassment or bullying (where laws have already been approved to discourage this behavior). Some of these require investigations which often leave the organization unclear as to what actually occurred, or major splits occur within a department or division during and after the investigation is completed. First: Workplace Coaching (with EAPs or others) The approach that we recommend is to start with coaching. If possible, start with coaching before any formal action or disciplinary action has been taken. This gives the opportunity to focus on the future, which is one of our strongest recommendations overall. We have developed a structured coaching method called New Ways for Work: Personal Skills for Productive Relationships. It’s designed to teach basic conflict resolution tools that are increasingly lacking in today’s blame-filled world. This coaching method can be done in three sessions, by an EAP, a management coach or an outside therapist or coach. The focus of the coaching is four essential skills: flexible thinking, managed emotions, moderate behavior and checking yourself. Each of these skills are included in a New Ways Workbook which includes several simple tools and practice exercises. The simplicity of this method and the positive emphasis on future problem-solving helps make it an appealing process and we have had many people say they appreciate these skills for all areas of their lives. By learning self-management skills in a coaching setting, many of the problem behaviors may be reduced or eliminated. There is no need for defensiveness, so employees or managers are more open to learning. And its short term, so that people don’t feel burdened or punished, which can block helpful learning. One or more parties to a dispute can be expected (required?) to learn these skills. Second: Determine if There is Progress After one or more parties to a dispute have gone through this coaching, someone can assess how seriously it has been taken. This could be a manager, H.R. or an outside consultant or mediator. Each individual can state what he or she is working on regarding their own self-management skills. “I’m working on using more flexible thinking, so that I can see more solutions to problems that may come up.” Or: “I’m working on managing my emotions better during a disagreement.” These types of statements indicate that progress can be made if the parties in conflict could sit down together. You don’t want to have another bullying session. Instead, if those in the dispute can talk and listen to each other, while openly taking responsibility for his or her own behavior management, then they may be able to move forward and resolve or reduce the workplace conflicts. Of course, readiness for mediation should be determined after some coaching sessions have occurred. This is a common mistake: asking two people in conflict to sit down and talk it out without learning any tools for doing that first. The emphasis has to be on learning skills, which can then be used to solve problems. Third: Mediation Once it has been determined that a mediation is going to occur, the parties to the conflict can be told to bring questions and proposals to the mediation. These are skills that they can learn in New Ways for Work, which can be used to make the mediation more productive. When conflicts are particularly tense, this approach can help all parties stay focused on what to do in the future, based on their proposals. When people come in cold to a mediation, there is a high risk of it turning into blaming each other. So we keep the focus on the future and on proposals and what to do going forward. This future-focused, proposal-focused approach has kept many conflicts from suddenly flaring up again. No one has to be defensive, because the future hasn’t happened yet. Another aspect of successful mediation of workplace disputes is to minimize or eliminate storytelling—talking about how awful the other person has been in the past. This tends to plunge the parties back into the dispute, and tempers can easily flare up. It will be important to use a mediator who can keep this structure and discourage focusing on the past too much. Ideally, the mediator will be familiar with the skills taught in the New Ways for Work coaching, so that they can be reinforced and used to help resolve the issues. Conclusion This is a brief look at how workplace mediation can be structured for success. Rather than ignoring a conflict or spontaneously firing one or both people, this approach can be used to contain the conflict and teach some skills at the same time. This gives people a chance to act responsibly, which is essential if they are going to continue their working relationship. With the coaching, they will also learn new skills to help them in other future disputes. With the mediation, they can hopefully salvage the positive in their relationship while minimizing the negative. Too quickly these days, we are afraid to take the time to learn the skills to then resolve disputes. This approach provides one way of doing that. Read more about workplace conflict and mediation in these books: It’s All Your Fault at Work! Managing Narcissists and Other High-Conflict People; and Mediating High Conflict Disputes   BILL EDDY, LCSW, ESQ. is the co-founder and Chief Innovation Officer of the High Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and is viewed globally as the leading expert on managing

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The Mediator’s Role in Decision Making

©2017 John C Edwards, Esq. In a previous article, I wrote about the importance of leaving the critical decision making up to the parties to a mediation, especially if the party has a “high conflict personality.”  (I will refer to people with a high conflict personality as an HCP.)  As a mediator, my goal is not to make decisions for the parties, rather it is to help create an environment that allows the parties to be reflective, logical and thoughtful in their approach to conflict resolution and decision making as opposed to reactive, persuasive blaming that almost never solves the problem at hand and frequently leads to escalating conflict. It’s important to allow HCPS to make their own decisions for a number of reasons. HCPs typically suffer from cognitive distortions which lead to a preoccupation with blaming others, all-or-nothing thinking, and unmanaged emotions which lead to extreme behaviors. They do not respond well to being told what they should or must do.  One of the hallmarks of HCPs is the utter absence of insight, so therefore they do not respond well to advice, admonishments and threats, and even if they are induced into accepting a resolution that they feel has been forced on them, there will likely be negative consequences in the future. Catch the HCP’s EAR At the High Conflict Institute we have been educating professionals dealing with HCPs in legal disputes to build connections with HCPs by communicating with Empathy Attention and Respect (EAR®) and by focusing the HCPs on taking their concern about the past and making proposals for the future.  Focusing on the future can interrupt the cycle of high conflict thinking and blaming and help put the HCP in a mental state more conducive to logical productive decision making. I have come to realize that helping create an environment for logical decision making is perhaps a mediator’s most important task, even in cases in which the parties are not HCPs.  As a mediator, I am most assuredly not a decision maker, but I am very much in a position to be a decision “influencer.”  Using EAR® is always important, but can I and should I be using other tools and techniques to help influence parties to make decisions to resolve their conflicts at mediation? The Issue Is Not The Issue In his fascinating, influential book “Thinking, Fast and Slow” (2011. New York, Farrar, Strauss and Giroux), Daniel Kahneman, Professor of Psychology Emeritus at Princeton University and winner of the Nobel Prize in Economics, explains the profound effect of cognitive biases on human decision making.  In the everyday world that I inhabit (civil litigation mediations) I am continually astounded by the decisions made by people that are not economically rational, and that are often based on intuition and anecdotal evidence, and I am not limiting this to HCPs.  Although cognitive distortions may be at the heart of HCP behavior, everyone has cognitive biases, and these biases profoundly affect our decision making. A thorough examination of “Thinking, Fast and Slow” and how it addresses the processes involved in human decision making is beyond the scope of this brief article, but one of the key points describes a “puzzling limitation of our mind: our excessive confidence in what we believe we know, and our apparent inability to acknowledge the full extent of our ignorance and uncertainty of the world we live in.” In civil lawsuits this manifests itself in an overconfidence in what will be the likely outcome of a trial and underestimates the role of chance in events.  When each party assesses their chances of winning at 75%, we know they can’t both be right, and more likely than not, neither are right.  When faced with this dilemma, I know that it serves no purpose to argue or attempt to persuade either or both that the analysis they have come up with is wrong.  After all, who am I to predict the likely outcome? Priming for Decision-Making Numerous psychological experiments have confirmed the powerful effect of priming on the human mind in the context of behavior and especially decision making.  Priming occurs as a result of our associative memory, in which each idea is linked to many others.  Many civil litigators think of priming only in the context of numbers, which leads to the typical negotiation over money wherein the plaintiff demands $1,000,000 for a case with an expected value of $200,000 and the defendant offers $5,000.  Priming effects, however, take many forms, and are not restricted to concepts and words. There are many examples of this that can be found in Thinking, Fast and Slow, as well as in a new book I have found to be very helpful, PRE-SUASION, a Revolutionary Way to Influence and Persuade (2016. New York, Simon and Schuster) by social scientist Robert Cialdini.  Cialdini explains how the best communicators capitalize on “privileged moments for change” in which audiences become receptive to a message before they receive it.  To change minds, we must first change “states of mind.” We know how important this is with HCPs, but the revelation for me is how important this can be in any case.  My goal is not to alter the party’s attitudes, beliefs, or experiences (after all, mediation is not therapy) but rather it is to channel the party’s focus of attention just before requesting a relevant action.  Cialdini provides a great deal of scholarly work that demonstrates that savvy communicators who learn this skill can increase the chances that the message they send will be accepted.  I think that is a great skill every mediator should attempt to learn. Resources: High-Conflict People in Legal Disputes John Edwards, Esq., earned his J.D. from the University of San Diego Law School and received his mediation training at Harvard Law School. After years of litigation, he began his mediation practice here he has successfully mediated hundreds of cases. Contact us about reserving John for your speaking or training needs:

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Numbers vs. Feelings: Different Perspectives in Divorce Mediation

©2016 Shawn D. Skillin, Esq. In divorce mediation, there is almost always a numbers person and a feelings person. The numbers person was probably what I refer to as the “Managing Partner” in the marriage. The person who balanced the accounts, took care of getting the bills paid and the taxes done, made the investment decisions, etc. This spouse was often the more organized and logical partner in the marriage. They are more logical in their decision making, they are linear thinkers and often have a good grasp on how this divorce thing is going to look from a logical perspective. They are often focused on practical matters: schedules, finances and logistics. The other spouse is often the “feelings” person. Numbers aren’t really first and foremost in this person’s mind. They are worried about where they will live, will they have enough money, are the children going to be ok, will they ever find love again. They are often slower to process the practical issues of divorce. How do you bring these two parties together into a space where decisions and planning can take place? It’s not always easy. Recognizing where each person is coming from is the first key. You have to take each client “where they are at.” You can’t fit a square peg into a round hole, so once you’ve identified this problem, start chipping away at the sharp edges. Help the “numbers person” to recognize that the “feelings person” needs some time to process their feelings so they can take in the practical information and be ready to make decisions that will stick. Pushing them forward too quickly will only result in a one step forward, two steps back scenario that ultimately frustrates the “numbers person” even more. With the numbers person, my favorite saying is “slower is faster.” Assist the “feelings person” by acknowledging their feelings, but gently reminding them that being involved in the decision making process requires their active participation. Help them figure out what they need to help them move forward. Gently remind them, that if they fail to make any progress, the other person may ultimately get so frustrated they will end up in court just to move things along. Help them to outline what information they need and what resources they may need utilize to help them move forward. Set deadlines for getting certain tasks done. By acknowledging where each party is, the mediator helps normalize the situation for both parties. This can make everyone feel heard and more comfortable in moving forward. Shawn Skillin is an attorney, family law mediator, collaborative divorce practitioner. She is a sought-after speaker, trainer and consultant at the High Conflict Institute. She is the co-founder of the Family Resolution Institute, in San Diego, and is a senior mediator at the National Conflict Resolution Center. Learn more about Shawn and contact us to learn how she can help train your group.

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