Author: Donita King

Dealing with Impasse (Mediator and Advocates – Each can help the process!)

In my experience, the most frequently asked question of alternative dispute resolution (“adr”) trainers and professionals is “how to handle and overcome impasse?”  It is my observation that successful mediators have two or three techniques they use with variation, that have helped them to overcome impasse in some instances.  Unfortunately, there is no technique that works all the time. In some cases, impasse can not be overcome, no matter how skilled the mediator or how hard the mediator tries. The cases that have the best opportunity and potential to overcome impasse are those where the mediator and the advocates incorporate and adopt the principles and actions explained below. Of course, it is a basic fact that impasse is unlikely to be overcome, even with the employment of the best techniques by all the professionals involved, if any of the parties is not emotionally ready to shift internally.

 

Parties may not be able to proceed for any number of possible reasons. There may be fear, inability to think of good options, anger, or one of the parties may have a feeling of being coerced into something they do not want. Some strategies for dealing with impasse follow.

  • Look deeper for underlying interests, concerns, or fears. Often if those get addressed, parties find it easier to move on.
  • Explore the use of appropriate experts to offer a different perspective or additional input on the issue(s).
  • Explore the emotional and financial costs of not settling.
  • Remind the parties that the issues will be decided at some point by someone but negotiation is their opportunity to maximize their control.
  • Look for a different approach. For example, the parties often are trying to get concessions from each other. When this happens, defensiveness sets in and it becomes a tug of war. The mediator can help them come at this from another angle by asking what each would like to offer in response to the concerns and preferences of the other. Or ask: “What would it take for you to let go of that”?
  • The mediator or advocate might suggest short-term solutions, allowing the parties to try out some of their ideas before deciding on the final agreement. The parties will need to be clear, perhaps in writing, that this is short-term and is not meant to be the final solution.

 

Practical Tips – Considerations Summary:

 Parties are at an impasse when they are finding that they are unable or unwilling to move forward. Impasse

can occur for various reasons including:

  • parties having anxiety about their needs not being met,
  • parties may believe that the options available to them are not in their best interest,
  • one or the other of the parties may refuse to cooperate for vindictive reasons,
  • foot dragging which can be a form of passive aggressive way of dealing with the other party,
  • parties may not be clear on their rights, and
  • parties may not trust each other to live up to any agreements they might reach.

When the mediator or advocate, along with the parties feel stuck, there are a number of ways to get beyond such impasse.

  • Conduct separate meetings (caucus). Go deeper into interests and feelings. Explore additional options, evaluate options, and help develop proposals. Provide for some reality testing; what will happen if there is no resolution here? What is your best alternative to a negotiated solution? Will the alternatives give you what you want? How much will you be involved in determining the outcome?
  • Check if the parties wish to take a break. Sometimes taking a break and coming back later gives parties time to reflect and develop new perspectives to bring to the negotiating table.
  • Summarize gains made and ask what the next steps should be. This can help the parties see that they are not very far apart, or that they have demonstrated an ability to develop solutions.
  •  Focus on the future and away from the past. When parties focus on the future, they are moving away from the blame game (history) to talking about how they want things to be different in the future.
  •  Leave the issue for now and move to another. Putting a difficult issue on the shelf and dealing with others that are easier may give new hope for dealing with the difficult one later.
  •  Gather more information. Sometimes getting more information from experts such as an attorney, accountant, management, or other authority on the subject will make it easier to move forward since better information leads to better solutions.
  •  Discontinue the session and set up another time to meet. This may be a good time to assign homework to the parties, to get information, summarize their ideas, bring questions, or
  •  Ask the parties, in caucus, what they need in order to move on. This question often gets to the root of what is leading to the stalemate. It is not unusual that a party’s needs can be addressed either by the mediator or the other party.
  •  Introduce experimentation. Help the parties to agree on a short-term solution that they can try and see if it will work for them. They may find that the solution works for them or that it needs some fine tuning to serve as a long-term solution.

 

Resources:

  1. Goodwin, C. (Summer 2008) Troubleshooting Impasse in a Collaborative Case, Collaborative Review, 10(2), 12-13.
  1. Berman, Lee Jay (August 2008). Impasse is a Fallacy http://www.mediate.com/pfriendly.cfm?id=4154

 

Five Suggestions for Neutrals with Culturally Diverse ADR Participants (What Advocates Should Know)

DKingLawOfficesI have always felt that the philosophy or motto of a mediator or arbitrator (simply referred to as a “neutral” in this article) should be the same as those in the medical profession – “First, do no harm”. The reason for this is obvious. A neutral needs to establish trust and credibility from the beginning. A neutral needs to be able to inspire confidence in him or her self with the parties if the process, mediation or arbitration, is to have a chance of succeeding. I come from two distinct cultures (Mexican and African-American) and have worked with those from many cultures all my life. It was in undergraduate school when I became involved in international student associations that I started to pay attention and became consciously aware of cultural differences and similarities. Over the years I sharpened my awareness and began to impart what I have learned to my colleagues and ADR students and mentees. This article is just a brief sharing of some suggestions that might be of help to those acting as a neutral in particular, and in the legal profession, in general.

First, let me start with a disclaimer. I am of course, first, last, and always, an attorney. This article is not a comprehensive treatise on what should and should not be done in certain culturally diverse situations, nor is it meant to contain the “A to Z” rules for how to conduct culturally diverse processes. This is written to share a few practical tips that might be helpful and hopefully will lead the readers to consider following up with research of their own for more information.

It should not come as a surprise to anyone that the numbers of culturally diverse individuals in the United States in general and Virginia in particular is increasing substantially. According to QuickFacts from the U.S. Census Bureau (1), White persons not Hispanic make up 65.6% of the Country’s population, African-Americans make up 12.8%, Hispanics make up 15.4% Asians make up 4.5%, American Indian and Alaskan Natives make up 1.0%, Native Hawaiian and Other Pacific Islanders represent .2% and Persons Reporting two or more races make up 1.7%. In 2008 the Country’s population estimate was 304,059,724 people. Based on that number, even one percent is 3,040,597.24 people! The same set of statistics report that in 2000, foreign born persons made up 11.1% of the population. I don’t know what the statistics are in 2009, but I would find it surprising if the numbers of culturally diverse (non White) individuals have not increased. In any event, an effective neutral needs to familiarize him or her self with the cultures in the environment in which the neutral serves. I therefore make the following five practical suggestions for neutrals who find themselves working with culturally diverse individuals – not as a means of stereotyping, but as tools to provide assistance as appropriate in the ADR process.

Practical Suggestion #1: Observe and Follow: By this I mean “take your cues from the culturally different individuals”. To the extent that you can follow suit and still maintain your role as owner of the process – demonstrating control and following proper neutral rules and procedures, you should endeavor to behave as these individuals if the behavior is not problematic, but conducive to creating a comfortable and civil environment. How are they acting toward each other when civil, and how do they act toward you? Are they soft spoken to you? Do they look you in the eyes? Do they address everyone by their surname? Watch their eyes and expressions. Do they appear to be offended by a particular behavior, item, or observation? Are they acting in a familiar manner with anyone? If so, who? If not, don’t try to give them a “big ol’ down home” relaxed welcome! They are likely to find it offensive. If they keep their jackets on and do not loosen their ties, your attire should appropriately mirror their formality to the extent possible. Too often I have found neutrals who figure that they should just do things as they always do and it’s up to the client to adjust, not the neutral. I can tell you that my experience and the experience of others has been that when the neutral adjusts to the extent practical and possible, the culturally diverse clients feel more at ease and are appreciative on a sub-conscious level if not a conscious one. Very often things will shift a little as the process progresses and the client will start to do a little adjusting themselves.

Practical Suggestion #2: Be Mindful of Personal Space: Pay close attention to the participant’s preference for personal space and guide your placement at all times and the placement of the other participants accordingly. The last thing you want to do is place the culturally diverse participant(s) in a place where they are uncomfortable. At best they may be unable to focus; at worse they may become miserable and act accordingly. There are some, Nigerians for example, who like to minimize the space between themselves and another with whom they are conversing. Usually that space is considerably closer than those of us raised in the U.S. prefer or are comfortable with. To a Nigerian, a person who backs away is saying “I don’t want to get to know you or share space with you”. If possible and unless there is a good reason for not, hold your ground when you feel a culturally diverse person may be invading your personal space, as long as you do not think or feel that they are deliberately acting aggressively towards you. Remember, “First, do no harm!”

Practical Suggestion #3: Be Sensitive to Pace: We in the United States are often told we move too quickly on things and are impatient. Asians tend to be more meticulous than we native born U.S. citizens; even when they (the Asians) are facile with the English language. I always have quite a balancing act when I have mediation with an Asian not born in the U.S. and a U.S. non-Asian native. The U.S native wants to move things along and the Asian wants to slow the pace down so that they can carefully manage and address the details. Know that you may be called upon to slow the pace down, perhaps take more breaks, and allow time to extend preliminary civilities when working with non American-born Asians and other groups with similar cultural customs or practices.

Practical Suggestion #4: Make Preliminary Inquiry: When you are meeting with someone from an ethnic group or country with which you are unfamiliar, make inquiries and, or, do some basic research. Perhaps you know someone who is familiar with that particular culture. Go to a book store or do a preliminary search on-line for some basic information so that at least you can avoid doing something offensive. You may be surprised at the wealth of information available from various sources. All you have to do is look around and ask for information. A quick and brief search or inquiry could help you avoid a problem in the first instance and, or save you the time it would take to try to repair any damage done as the result of an avoidable mistake on your part.

Practical Suggestion #5: Scrutinize Your Environment: We are so use to our environment that we often no longer see what is there and certainly not as others may see it. When a decision is made as to the location of the arbitration, mediation or other ADR meeting, closely scrutinize the environment where the process is scheduled to take place. Is there anything that might be considered offensive to the culturally diverse participant(s)? If food is being served and the participants are Hindus, do you have the beef next to or touching the vegetables? What kinds of artwork or artifacts are present? What about the meeting location? Is the meeting location next to a place that might be uncomfortable for the culturally diverse participant(s) to traverse? Again, if you can avoid something that might offend or make the culturally diverse participant uncomfortable, it would be helpful and more productive to do so.

These are just a few practical suggestions for neutrals that might make working with culturally diverse individuals more comfortable and easier for all parties involved.

1)http://quickfacts.census.gov/qfd/states/00000.html (9/03/09): Source U.S. Census Bureau: State and County QuickFacts. Data derived from Population Estimates, Census of Population and Housing, Small Area Income and Poverty Estimates, State and County Housing Unit Estimates, County Business Patterns, Nonemployer Statistics, Economic Census, Survey of Business Owners, Building Permits, Consolidated Federal Funds Report
Last Revised: Tuesday, 18-Aug-2009 08:12:35 EDT

Civil Cases and the Collaborative Process – Virginia Update – Marshall Yoder and Donita M. King

In the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed – Charles Darwin

            Collaborative practice continues to grow in popularity as a dispute resolution model in Virginia, the United States and Internationally.  As of last count, collaborative practice in some form existed in 29 countries as well as in nearly all states domestically.  Collaborative practice has it roots in domestic relations cases but is also beginning to take hold as a model in many other types of disputes; just as mediation developed some years ago. For example, collaborative practice has been used in the following non-family law matters:

  1. A business breakup and reorganization involving two equal owners of a health care services company.
  2. A sexual harassment case involving an employer which was resolved successfully for both parties in four months.
  3. A trust administration dispute among family members arising out of a will contest concerning the treatment of assets contained in the trust.
  4. A homeowner-contractor dispute which was resolved in four months using a combination of collaborative attorneys, a case evaluator and a mediator.
  5. A conflict over a will that arose while a couple was going through a divorce when the husband died unexpectedly, which created a standoff between the deceased’s wife and his mother.
  6. A dispute among family members involving an elderly adult with failing capacity and what to do about the elder’s assets, healthcare issues and long-term treatment.
  7. A construction defects case involving multiple parties, including a commercial general liability insurance company.
  8. A business breakup between a four person ownership group of a bio-tech company.
  9. A dispute between a non-profit organization and an independent service contractor which was resolved in three months.
  10. A performance/disciplinary action/near termination case involving a case between a faculty member and a private

What all of the above cases had in common was that at some level, the dispute involved relational issues. In Virginia, this determination is made through knowledgeable consideration under Rule 1.4 of the Code of Professional Responsibility, so as to inform the client in an appropriate case, where the collaborative process would be the most likely beneficial process under the circumstances.  In businesses with corporate counsel, there is a need to contain the budget on legal expenses as well as a need protect the client’s time, interests, and brand. Collaborative attorneys, as well as all attorneys, should inform such counsel of the viable alternative of the collaborative process to accomplish these objectives. Corporate counsel brings the business knowledge as a client. Where the services of good, knowledgeable and experienced collaborative counsel is utilized, the relationship with litigation counsel can be preserved by corporate counsel and limited to those cases where such counsel is most needed. After an appropriate pilot program to profile  which cases would likely be better suited to the collaborative process, the corporation could conceivably benefit financially and better protect its brand and relationships; certainly something worth exploring. Small businesses can do the same as usually the business leader is very sophisticated and can work with collaborative counsel the same way he or she would work with a traditional attorney with the added benefit of counsel who is focused on not just a purely legal solution. See Comment [2] to Rule 2.1 of the Rules of Professional Conduct (“Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations such as cost of effects on other people, are predominant.”)

So why bother with the collaborative process when the traditional lawyer is a good negotiator? It is axiomatic that people require alignment in their disputes.  We see this when people ask to bring “support persons” with them to mediation sessions.  Indeed, it is the lawyer’s obligation to align with his or her client in a given dispute.  Alignment is no less important in a civil dispute as in a family law matter.  Collaborative practice harnesses the power of the alignment dynamic, while at the same time, redefining the lawyer’s role as creative solution-generator acting in concert with his or her client and the other client and their collaborative counsel.  The traditional lawyer’s ability to act as a creative solution-generator is limited and often hampered by the necessity to protect and advance the positions of their clients in the adversarial process.

At the heart of collaborative practice is a focus on the underlying interests of the parties and helping them extricate themselves from the “muck” of positions in which they are stuck.  The model is especially appropriate for businesses that are focused on their bottom line and wish to avoid the enormous expense associated with full-blown discovery and litigation. The explosion of electronic data in litigation has led to the creation of cottage industries designed to manage, sort and organize sometimes hundreds of thousands of pages (or more) of documents, the vast majority of which are likely not to contain harmful or helpful information.  Imagine if the real dollars paid in simply assembling and reviewing these documents were instead focused on the underlying interests of the parties to the dispute.  In collaborative practice, there is recognition that information is vital to clients making informed choices so there is full disclosure of relevant information without engaging in formal discovery.

At its most practical, the model recognizes that over 90% of all civil cases resolve prior to trial (over 98% in federal court alone).  Rather than focusing on an event that is likely never to occur and engaging in negotiations that are largely driven by a litigation model (affectionately termed “litigotiation” by Professor Marc Galanter), collaborative practice simply allows a focus on the more likely outcome of settlement to take place first.  It is a transparent process in which the parties brainstorm options with their counsel, eventually evaluate those options, and then work together to a durable agreement that satisfies the interests of all parties.  However, attorneys are by no means the only members of the team and financial neutrals, consultants, and coaches are being used as needed by the clients.

Collaborative practice principles are also being used before disputes even break out, particularly in estate planning areas where the parents may need to have difficult conversations with their children regarding the planned disposition of their assets.  In the Atlanta area, collaborative practice is being used in court proceedings involving conservatorships.

The International Academy of Collaborative Professionals now boasts a membership of over 3,400 professionals of which over 150 designate themselves as civil practitioners.  The IACP has an active civil committee as well which is focused on tying civil collaborative practitioners together on an international basis.  In Virginia (which has one of a few statewide collaborative practice organizations), the civil committee of the Virginia Collaborative Professionals is currently developing plans to spread the growth of collaborative practice through public outreach, trainings, appropriate case referrals, and partnering with local ADR organizations such as community mediation centers.

 Often civil cases are referred from family law practitioners who are also using the collaborative model in their domestic work. Many marriages now involve family businesses and business partnerships. Again; the model is well-suited to any dispute which involves potential continued or anticipated relationships.  The civil collaborative attorneys in Virginia are working together to bring this alternative to those clients and professionals who would benefit from its use; not as the only option, but certainly a viable beneficial option where appropriate.