Tag: Gary Shaffer

“I Feel Like You’re Not Hearing Me”

{4 minutes to read} My guess is that many mediators occasionally hear this in one form or another. Why is that? Is it because the mediator isn’t carefully listening? Do the parties and/or attorneys not fully understand the process and therefore have unmet expectations from the mediator? Some combination of the two? Or something else altogether?

In my experience, a party or attorney stating such a concern is usually expressing frustration that the mediation isn’t heading in the direction they want. If it were, the other side certainly would have given in by now, and the case would be over.

The success of any mediation hinges on trust—trust in the process and, most critically, trust in the mediator’s impartiality and attentiveness. However, when a party or their attorney believes the mediator is not truly hearing their concerns, significant difficulties can arise, threatening the integrity and effectiveness of the entire process.

What should the mediator do? And what should a party or an attorney do? There can be a delicate dance of sorts that goes on in any mediation. People don’t want to antagonize the mediator, whom they want to push for a favorable result. But they also want to know their position is being presented with full force. If a party feels their voice is being ignored or diminished, they may withdraw from active participation, become defensive, or even escalate their emotional responses. A once constructive atmosphere can devolve into adversarial tension. This not only delays progress but also undermines the mediator’s efforts to guide the discussion toward resolution.

And what about the mediator? In the abstract at least, they are supposed to be above it all, not invested in an outcome, nor wanting to be manipulated by the litigants or their counsel. Do mediators flinch when a party accuses them of not listening or failing to convincingly put forth their position to the other side? Or giving too much credibility to the other side’s positions? Sometimes, people blame the messenger and want to know you’re on their side. Whatever the bubble over the mediator’s head says (These people are just jerks…. I already told them twice….), the mediator needs to put ego aside and address the accusation.

There can be many facts and positions to keep straight during any mediation. Positions can change. New facts can emerge. Sometimes facts can even change upon further exploration. The beliefs of a participant, even if considered off base, need to be understood and responded to in a way that makes it clear the mediator has heard them. They reflect some aspect of the process. Here is where some basic reframing may be helpful. “So in other words, what you are saying is….” One doesn’t know what the response to this will be, but it may confirm a party’s position or it may force some modification of it. And of course, the mediator may have indeed missed or misunderstood something.

Regardless of the cause, it is crucial to set aside personal feelings and discuss the issues of the perceived slight. That will help restore faith in the mediator and in the process. Only then can the mediation proceed toward a successful resolution.

Gary Shaffer
Shaffer Mediation
Gary@ShafferMediation.com

Part 160 – New York Presumptive Mediation

{3 minutes to read} I have previously written about how the COVID-19 pandemic significantly changed the landscape for court-referred mediations in New York State. While there was some support for the courts sending cases to mediation, it was sporadic. Some judges who saw the value of mediation would suggest that parties try mediation. Occasionally, a judge would even order parties to mediation. But that was rare.

In May 2018, I and others put together a full-day CLE program about the underutilization of mediation in New York State. The program bore fruit in June 2019 when Janet DiFiore, the State’s Chief Judge, and Lawrence Marks, the State’s Chief Administrative Judge — who was a panel member at the program — issued a press release stating they intended New York to become a “presumptive mediation” state, meaning, as the name indicates, almost all civil cases would at some point be referred to mediation.

Sunset in Albufera of Valencia, Valencia, Spain.

Darkness and Mediation

{3 minutes to read} Someone once asked me what the key was to resolving a case in mediation. My answer was simple: “It starts getting dark out.” Funny perhaps, but truth is implicit in all humor. One of those truths is that almost all people participating in a mediation want it to succeed. Including those who say on the first phone call, “You know, there’s no way this case can settle.”

A related metaphor to the above is that mediation usually sheds light on things, though it doesn’t happen all at once. Facts emerge, positions get revealed, as do the reasons for those positions, and positions morph over time. Settlements are reached for all sorts of reasons, not the least of which is that everyone just wants to get it over with. Sometimes that happens in a day, several days, weeks, or even months. The desire to get a conflict over with and move on can often be quite a beneficial stimulus to resolving a case. And “when it gets dark out,” people say all sorts of things they couldn’t or wouldn’t have said at the start.

Who Needs to be There: Employment Mediation

Two businessmen talking in conference room

{4 minutes to read} As Tolstoy once said, all mediations are different because they all involve elements of unhappiness that need to be addressed. He did not directly write about who needs to be present or why at an employment mediation, but I’ll now tie up this little series on who needs to be present at a mediation. I have previously addressed this issue in the context of construction, divorce, and personal injury.

Employment mediations generally involve an unhappy employer and an even more unhappy ex-employee. Or an employee who was demoted, or not promoted, or has been harassed, etc. Cases can arise from an alleged breach of contract or discrimination based on age, race, sex, etc. The employer believes the actions it took regarding the employee were proper. The employee thinks otherwise. Add to this the fact that there may be multiple employees, not just one, complaining about the employer’s actions.

So, who does need to be present at the mediation for these cases to be resolved? The subtle but revealing answer is: It depends.

Who Needs to be There: Personal Injury

{4 minutes to read} As my last blog took all the mystery out of the still almost-new AI phenomenon, we now return to the issue of who needs to be present at a mediation. I have previously addressed this issue regarding construction and divorce cases. The obvious answer to the question of who needs to be present at a mediation would be the parties however, that is not always the case. This is particularly true in personal injury matters where sometimes neither the plaintiff nor the defendant is present.

Since motor vehicle accidents are the most typical personal injury cases, I’ll use those as the basic example. Defendants in personal injury cases are often represented by counsel hired by insurance companies. That attorney is always present, and now that so many mediations are done via Zoom, an insurance adjuster may also attend. The defendant driver? More often than not, he or she is not present, especially if that driver was already deposed. The Plaintiff’s attorney is at the mediation, and certainly the injured plaintiff, right? Maybe. But maybe not.

AI and Mediation

{7 minutes to read} I’ve been writing recently about exactly who needs to/should be present at a mediation. I’ll get back to that, but what about Artificial Intelligence — AI — the hot topic du jour? What role, if any, does AI have in the field of mediation? Some of you may recall that an AI therapist was created some years ago and at least one study showed it could be quite effective in addressing many issues people generally would discuss with your basic homo-sapien therapist. Scientific American recently provided an update on all this. To some extent, any means of generating self-reflection can be useful in helping people unwind personal problems.

Artificial Intelligence. Cyborg. Concept — Photo

So, how about an AI mediator? One can imagine inputting information into a program and having the program generate possible outcomes that might help resolve a dispute. For divorce mediations, Family Law Software (created by the same fellow who created what became Tax Cut), generates financial “solutions” for divorces once data is entered about income, expenses, taxes, children, etc. Change any of the information relating to those items, and voila, the program spits out new results. This in turn can be helpful in discussing different scenarios as to who will pay whom for what and for how long. The program cannot address the angry spouse who believes any result will be unfair for various reasons, all of which may be understandable. So far at least, that still requires the subtle touch of a human mediator.

AI probably will not, any time soon, be able to handle the nuanced conversations that often take place when opposing parties are together, or during a caucus where the mediator can explore delicate matters that may require some private discussion. The back and forth conversation itself is often what generates movement and ideas, and allows emotions to be expressed and used constructively. That said, one would have lost lots of money over the past 50 years betting against the development of new hardware and software that changed our lives in ways never contemplated at the time. Since March of 2020, the vast majority of mediations are done on Zoom and initially people wondered if online mediations would be less effective because people would not be physically together. However, that turned out not to be the case.

A recent piece I read about AI and mediation said that one positive aspect of AI is that it is less likely to make decisions based on subjective factors because they are not influenced by emotions or personal biases. However, resolving a dispute can often hinge precisely on people being able to express their “subjective” emotions about a factual dispute or even on relevant legal issues.

So what can AI do? I asked ChatGPT how it could assist in a mediation, and it spit out the following in about 10 seconds. It’s basically a guideline of how to approach a mediation. However, the references to ChatGPT are meaningless without any “how-to” examples. Indeed, if you artfully replaced the word “ChatGPT” with the word “Mediator” you would have a good example of how mediation works.

Introduction: Start by introducing the concept of ChatGPT to the participants. Explain that it is an AI-powered tool designed to assist with communication and brainstorming.
Establish ground rules: Set clear guidelines for the participants to ensure respectful and constructive engagement. Emphasize that ChatGPT is a tool to support the mediation process and that the participants themselves will make the ultimate decisions and agreements.
Define the issue: Clearly define the main issue or conflict that needs to be resolved. Provide an opportunity for each party to express their perspective and concerns.
Individual input: Allow each party to privately engage with ChatGPT separately. They can provide a summary of their viewpoint, goals, and potential solutions. ChatGPT can offer suggestions, ask clarifying questions, or encourage the parties to think more deeply about their positions.
Joint session: Bring the participants together to share the summaries generated by ChatGPT. Encourage open discussion and active listening. ChatGPT can be used to facilitate the conversation by summarizing key points, suggesting alternative perspectives, or posing additional questions.
Brainstorming and exploration: Use ChatGPT as a collaborative tool to generate new ideas and explore potential solutions. Participants can input their proposals, and ChatGPT can help analyze and evaluate them based on the input received.
Reality testing: Ask ChatGPT to simulate potential outcomes or consequences of different proposals. This can help the participants assess the feasibility and desirability of various options.
Reframe and re-evaluate: Encourage the parties to reframe the issue and revisit their initial positions. ChatGPT can provide alternative perspectives, challenge assumptions, or propose creative solutions that may not have been initially considered.
Facilitator guidance: As the mediator, it’s important to guide the process, ensuring that the participants stay focused and respectful. You can also provide additional context, ask probing questions, or suggest specific areas of exploration for ChatGPT.
Final agreement: Once the participants have explored various options and engaged in meaningful dialogue, guide them toward reaching a final agreement. Emphasize that the decision-making process is ultimately theirs, and ChatGPT only serves as a tool to support their communication and problem-solving efforts.

SO: Here’s my question to you: HAVE YOU FOUND A WAY FOR AI TO BE USEFUL IN A MEDIATION? If you tried, what worked and what didn’t? Did it save time, present useful ideas, suggest alternatives, prepare a draft of an agreement, and create grounds for constructive dialogue? Something else? Do tell, please.

Gary Shaffer
Shaffer Mediation
Gary@ShafferMediation.com

Who Needs to be There: Divorce

{5 minutes to read} In my last blog, I wrote about who needs to be present during a mediation involving construction matters. Now I’ll address who needs to be present in a divorce mediation.

Here’s the quick answer: The divorcing couple.

Aerial view of 3 empty chairs set for a meeting

Anyone else? Maybe.

Divorcing couples come in all shapes and sizes. Some have been married for 2-4 years with no kids, and insignificant mingling of assets. Some have grandchildren. Many are in between. Some get along well enough that they can be in the same room together (virtually or physically) without too much distress. However, often at least one person will be uncomfortable being in the same “space” with the other spouse. But that discomfort cannot and should not always be avoided.

In a 10-20 year marriage with a few kids, the couple will most likely be dealing with each other in some fashion for the rest of their lives, and having them learn to work through disagreements together may be critical for the entire family. That can be something learned through the mediation process. One question that arises is whether they can do that with only each other and the mediator present.

Who Needs to be Present at a Construction Mediation?

{6 minutes to read} This is the first of several blog posts on who needs to be present at a mediation for it to proceed smoothly. A resolution may not be reached even with all the proper players present. But without them, there is no chance. This blog will address construction cases.

Construction cases come in all sizes. They can arise from putting in a new bathroom to constructing a hundred-story skyscraper. And everything in between. Even small jobs may involve an architect, a GC, and a sub or two. For example, that new bathroom may require electrical work that is done by an electrician who is not an employee of the GC. If there is an electrical issue post-construction, does the electrician need to be present at the mediation? Probably, but has the electrician been sued? Of course, a mediation can be held without starting a lawsuit, which can be extremely useful assuming everyone agrees to participate. Maybe the homeowner and GC can work something out between themselves. In a small job, that’s often possible.

Show Me the Money!

{4 minutes to read} After Covid shut down most courts in March 2020, it became clear that mediation could be an essential means to move cases along. The number of court-based mediation programs started to expand, with enormously positive results. This in turn has expanded the use of mediation as a routine part of the litigation process. It has also raised a long-simmering issue about paying mediators for their work.

The history of mediation goes back many years. Its first major use in New York was largely through what are called Community Dispute Resolution Centers (CDRC’s), which, as the name implies, handled community disputes. These were often the types of disputes that arose between neighbors. Excessive noise, some kind of trespass, an argument that was persistent and maybe about to get out of hand, or even did get out of hand, meaning the police had been called. Indeed, the police were often the conduit for cases going to a CDRC, since they realized the conflict was more civil rather than criminal.

Genesis and Dispute Resolution

{4 minutes to read} Conflicts go back a long way. There’s no shortage of them. Some get resolved and some don’t. And the species has chosen many different ways to resolve disputes. One method with a long history is murder. It’s a quick solution, though not necessarily a long-lasting one.

Cain killing Abel, marble relief on the facade of the Milan Cathedral, Duomo di Santa Maria Nascente, Milan, Lombardy, Italy

According to the Bible, Adam and Eve get off to a rocky start. Even before the trials of raising a family arrive, Adam and Eve have some issues. You may recall the serpent convinces Eve she need not fear eating the fruit from the Tree of Knowledge of Good and Evil. She eats the fruit, gives some to Adam, who also eats it, and things go downhill pretty fast. God notices what happened, asks for an explanation, and the testimony is a model of accepting responsibility and trying to work things out.

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