February 2008

Six Styles of Mediation

by Jane Beddall on February 29, 2008

Hans Boserup, a Danish mediator, has published a book (available in English) called Six Ways in Seven Days. In it he describes what he calls six styles of mediation: generic, settlement-driven, cognitive-systemic, transformative, humanistic, and narrative. You can learn more at his website, www. uk.mediator.dk.

Without going into detail about his descriptions of these different modes of mediation, suffice it to say that they cover a range of perspectives and priorities. It doesn’t take much imagination to see that a process that is so flexible that it can be broken into six different styles can have wide application in a variety of circumstances.

With just a bit of imagination and creativity, parties to conflict — and their trusted advisors — can use mediation to fit the parties’ unique needs and help them find appropriate resolutions.

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Mediation and litigation: is it either/or?

by Jane Beddall on February 28, 2008

Mediation is often referred to as a form of “alternative dispute resolution” or ADR. Though some question whether traditional litigation is now the more “alternative” approach, and mediation and arbitration the more common, there’s another point to consider. Once you have embarked on a course of litigation, is there a point of no return, when it’s not possible to employ mediation?

In a word, “no”. Although even where mediation is not required before parties can pursue litigation, the time to mediate frequently occurs before a lawsuit is filed — or when court action is extremely unlikely. Yet parties can turn to help from a mediator well into the litigation process. The period of time just before trial is often ripe for mediation, but even cases on appeal are mediated.

A recent example is the “Bong Hits 4 Jesus” case that began with a school suspension in Juneau, Alaska in 2002. Last year the United States Supreme Court ruled against the student on federal grounds. I knew the case well: in January, 2007, it was the source of the moot court problem for my section of UCONN Law first-year students’ briefs. Now the case is back before the Ninth Circuit Court of Appeals for consideration of the student’s state constitutional claim and the parties are involved in mediation ordered by that court.

Mediation can still resolve disputes, even when a portion of the original conflict is resolved, or when there is a litigated result that is not yet final.

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"Nobody budgets for mediation and conflict resolution"

by Jane Beddall on February 27, 2008

“Nobody budgets for mediation and conflict resolution” is a quote from Montana Consensus Council Chairwoman Peggy Trenk, in a recent article, “Plug soon to be pulled on state mediation agency,” by Charles S. Johnson, in the Billings Gazette. The council was created in 1994 “to help groups and agencies resolve conflicts and reach consensus on issues” according to the article. In 2007, the state legislature gave the council a two-year budget that called for the agency to raise over half of its funding, or $240,000, through consulting fees. Those fees have proven impossible to raise. Yet, Council Director Judy Edwards estimated that conflicts among employees in state agencies cost the state as much as $23 million annually in absenteeism, medical bills, and managerial time.

Although the hope was that state agencies would spend less taxpayer money on litigation and less on the indirect costs cited by Edwards, the Consensus Council was “overly optimistic that there were funds in state government for workplace conflict,” according to Trenk.

So, what went wrong? Probably Trenk has it in a nutshell: traditional managerial and budgeting perspectives plan explicitly for litigation costs and overlook the indirect costs of workplace conflict. Mediation and conflict resolution? They aren’t part of the traditional mindset and don’t make into the budget — even though they would better resolve many of the disputes that are a part of any state government (or any large, and many a small, organization.) If it’s not in the budget, it’s hard to find the funds to pay for alternative dispute resolution, even if it saves money, time, and working relationships.

A wiser perspective leads to a smarter budget, which leads to faster, cheaper, better results.

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Toddlers, Neanderthals, and active listening

by Jane Beddall on February 9, 2008

A recent New York Times article, “Coping With the Caveman in the Crib”, by Tara Pope explored the challenge of communicating with upset toddlers. Pediatrician Dr. Harvey Karp, known for his book “The Happiest Baby on the Block”, has now written “The Happiest Toddler on the Block.” Explaining his view that toddlers’ brains are at a primitive stage of development, driven by emotion and instinct, he says that logic and persuasion are useless in dealing with a Neanderthal.

Dr. Karp says that all of us get “more primitive” when we’re upset and that adults have learned to use “active listening” with each other when one has a complaint. Through our communication approach we can improve the process of resolution.

When we are in conflict, we need to know that the other person has heard and understood our complaint. Only then can we move toward a resolution to the problem. If we attempt to jump ahead to the solution before we acknowledge each party’s position and identify the person’s actual interests behind the stated position, we are likely to fail. Either we reach no resolution to the dispute, or we reach one that will collapse.

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