Tag: ADR Participants

Client Participation in Mediation – To Speak or Not to Speak

The purpose of mediation is to give the parties an opportunity to have a discussion and possibly develop a solution to a dispute. The assistance of a skilled and experienced mediator helps to provide the parties with a facilitator who can assure a neutral environment, help the parties to explore options, and use proven techniques to overcome impasse.

A good mediation allows for creativity in problem solving and empowers the parties to come up with a solution tailored to their particular circumstances. In addition, the parties have an opportunity to vent and have their feelings acknowledged. This enables them to move on emotionally and psychologically, which serves to help them shift the focus from blame, battle, and defense, to problem-solving. The problem is that many advocates do not realize that in order for mediation to be effective, their clients must participate – be engaged. That means they have to talk. Otherwise, it is just a settlement conference where the parties abdicate control to their attorneys. A settlement conference does not provide for the flexibility, creativity, client venting or control in resolution development process.

 A mediator’s job is to get the parties to talk, so that the mediator has an opportunity to address hidden agendas and emotions that are at the route of their decision-making. Many times, advocates tell their clients not to talk, but to let the advocate do all the talking. It is immediately apparent to a mediator when a lawyer’s client has been so advised or instructed. In these cases, progress tends to stall and potential for success becomes more remote. Other times it is readily discernable that the client is afraid to speak and feels that they have hired the lawyer so that they do not have to speak. Good lawyers and mediators in this situation patiently and gradually work to increase the party’s comfort level and encourage them to speak, until they are doing so easily, shifting the mediation into a higher level and accelerated pace in the resolution process.

 An advocate who wants to make the most of the mediation opportunity for the client should work with their client to prepare the client for actively participating in the mediation process. Here are some suggestions for client preparation.

 

  1. Take the time to explain the mediation process.

Be thorough in your explanation and discuss the roles of each of the expected participants. Printed materials or videos available on the internet or published by various agencies or organizations are often helpful.

 

  1. Be specific about your client’s role and what is expected of them.

Go over carefully what is expected from the client by you, the mediator, and the other parties (including attorneys). Practice a bit with your client some scenarios in mediation to enable them to get comfortable with the process; specifically, opening, hearing from each party in joint session, caucusing, etc.

 

  1. Find out what your client needs to be comfortable in their environment.

Does your client have any special needs or preferences? Do they smoke and need smoke breaks? Can they sit for long periods? Do they have hearing or speaking problems (naturally soft voice or stutter?) Perhaps you can arrange for a seating arrangement that might be more conducive for your client’s participation.

 

  1. Give your client some positive examples or anecdotes of successful mediations.

Since your client may not have personal or professional experience with mediation, you can substitute with the positive experiences of others by anecdotal information. This gives your client a vicarious point of reference to draw from, and may also serve to give your client examples as to how they might like to participate.

 

Like anything else, preparation is the key for successful client participation in order to maximize the potential benefits of mediation.

 

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