I just came back from the bi-annual training retreat of the National Academy of Distinguished Neutrals (NADN), where I was one of the speakers.
I caught the second half of the program and each of these sessions was fascinating, as I describe below. I had never heard of NADN before, and I was impressed by the program organized by Darren Lee, the executive director, Lee Jay Berman, and John Freud. (I may have omitted some program organizers and, if so, my apologies.)
I met Antonio “Tony” Piazza when we were both baby mediators in the San Francisco Bay Area in the early 1980s. I saw him at a few meetings at that time but we weren’t close and I hadn’t seen him again until this training program.
He is a legendary mediator who lives in Maui and has an office in San Francisco. He has had a reputation of being a bashing and trashing mediator, in Jim Alfini’s words*, who the parties pay extravagantly for the privilege of having Tony bang their heads together until they settle. It sort of sounded like mediation for masochists. I have never heard of him attending conferences or programs like this, so I was particularly interested to see him in the flesh and hear whatever he would say.
He has a quiet, Zen-like manner and is very respectful, humble, and honest. He has changed his approach in some ways over the years and continues in others. It sounded to me as if he is a lot kinder and gentler than in the past but, with the parties’ permission, is still very candid about his analysis.
He insists on using a joint opening session and then uses caucuses with the parties to reason with them. Probably the most controversial aspect of his approach, at least for this audience, is that he doesn’t carry offers back and forth between the parties. I heard several mediators say that the lawyers they work with would demand a process in which the mediator shuttles back and forth with converging offers. Even so, people seemed very impressed with his approach and demeanor, as was I.
At this stage of his career, Tony really wants to give back to society and has offered to mediate major social conflicts pro bono.
Lee Jay Berman and the Ethics of Dealing with Biases
In some ways, Lee Jay Berman seems like the opposite of Tony Piazza. I have seen him at numerous DR events and he is much more gregarious than Tony seems to be.
Lee Jay led a session on working with one’s biases. We talked about how we may see some things and miss others. He had us do a particularly useful exercise of listing five things that bias us toward people and five things that bias us against people. Not surprisingly, we are often biased toward people like ourselves (or our images of ourselves) and biased again people like actual people we don’t care for so much.
He had us do an exercise in which we were given pieces of paper with numbers on one side that we weren’t supposed to see. The numbers reflected our status, with one being the highest. We held the numbers on our foreheads so that others in our group could see them but we couldn’t. We mingled for a while and then lined up according to our assumed status based on the way others treated us. This reminded me of being at an AALS meeting and seeing people check the name badges showing people’s schools and then noticing that their level of interest seemed related to the school’s US News ranking.
Of course, we all have biases and can’t just get rid of them. We can become more conscious of them and try to counteract them.
Debbie Goldstein and Thanks for the Feedback
Debbie Goldstein is a principal and the managing director of the Triad Consulting group, which Douglas Stone and Sheila Heen founded. You probably are familiar with Stone and Heen as co-authors (with Bruce Patton) of Difficult Conversations: How to Discuss What Matters Most. Last year, Stone and Heen published Thanks for the Feedback: The Science and Art of Receiving Feedback Well (Even When It’s Off-Base, Unfair, Poorly Delivered and Frankly, You’re Not in the Mood).
I can see why Debbie is a sought-after consultant. She is a great communicator who listens really well and fast and has a great sense of humor.
She presented some basic concepts from Thanks for the Feedback, including three types of “triggers” that can get pulled when people give and receive feedback – truth, relationship, and identity triggers. There are three types of feedback – appreciation, coaching, and evaluation – which can get mixed up, causing problems.
It is difficult both to give and receive feedback. She had us do an exercise in which we role-played giving and receiving feedback in a difficult situation in our real lives. Even experienced mediators struggled with this.
I had to leave to catch a flight before she finished her presentation, but she gave everyone a copy of the book, which I look forward to reading.
The topic of feedback has resonated for me since my first mediation training with Gary Friedman. He taught guidelines for giving and receiving feedback, which I adapted and posted on my website. In my Last Lecture article, Part II.B advises students and lawyers to learn to learn because they need to continue learning throughout their careers. Chapter 9 of my book, Lawyering with Planned Early Negotiation: How to Get Good Results for Clients and Make Money, suggests that lawyers (and other professionals) can improve their skills by getting feedback in various ways. Appendix W is a generic interview or survey that lawyers (and neutrals) can use and adapt to get feedback from clients.
Early Neutral Case Management Services
My presentation was based on an article I wrote in 2011, How Neutrals Can Provide Early Case Management of Construction Disputes. Although this was written specifically for a newsletter about construction disputes, virtually all of the concepts are relevant to any case.
The basic premises of my presentation were that:
- Mediators usually are used only at the dispute resolution phase of a case.
- Parties and lawyers could benefit from neutral case management services throughout a case.
- Most probably would not use such services but a significant number might, especially in complex and/or contentious cases.
Neutral case management services include management of discovery, confidential early analysis of important non-discoverable information (e.g., interests and priorities, expectations, business plans), management of use of experts, litigation planning a la Federal Rule of Civil Procedure 16, preparing for the dispute resolution process, promoting constructive relationships, and planning for arbitration or trial if the parties do not settle.
I was surprised to hear that many of the mediators already provide some of these case management services, especially in pre-suit mediations. It sounded as if they mostly do this on an hoc basis, rather than offering it systematically.
Some people in the audience noted that we focused exclusively in the court context and that they wanted to help clients deal with problems before they even start thinking about litigation. I suggested that they refer to the ABA Section of Dispute Resolution’s Planned Early Dispute Resolution User Guide.
In the litigation context, I suggested that mediators may want to “bundle” various pretrial and pre-mediation services into packages.
Of course, mediators and arbitrators do not control when they are engaged in a dispute. To make such a system work on a regular basis, some organization like NADN or the ABA Section of Dispute Resolution might develop and promote models that would legitimize the process and enable lawyers, neutrals, and parties to tailor the services appropriate in each case. Indeed, there was some talk that NADN might want to develop such models. Stay tuned.
*James J. Alfini, Trashing, Bashing, and Hashing it Out: Is this the End of “Good Mediation”?, 19 Fla. St. U.L. Rev. 47 (1991).