Many attendees at the 2006 annual conference of the Section on Dispute Resolution had to look twice when they saw one of the characters pictured here walking the conference halls. When most learned that these were actually colleagues – the question was the same: Why would these self-respecting mediation professionals play dress up?
First Hint: The educational session was titled, “Heavy Metal Mediation”
An interesting name for an ABA conference, but what does rock and roll have to do with mediation? Answer: it was about a taking a Rock-N-Roll attitude toward mediating commercial cases. But why the make-up?
Second Hint: The message is in the medium.
The rest of the course’s title was, “Real Tools for the Real World of Commercial Mediation.” The message was about more than getting outside of the box –it was about tearing the box to shreds. It was three hours of “forget everything you learned in Mediation 101” and “if it isn’t broken, break it!” and “rules are made to be broken”. Convention had no place in this two-part skills session, and that message needed to be driven home emphatically. There needed to be no doubt about the unbridled permission that the attendees were given to break most ever rule ever taught in most conventional mediation trainings. The best way to deliver such a message? BE the message. LOOK the message. DRIVE the message home with an unforgettable visual. After all, most Americans are visual learners, and for this message to capture the very sophisticated mediator attendees on all levels, it had to have visual, auditory and kinesthetic components to it.
Third Hint: The message was very serious.
The message was an important one: Mediation, as it is taught in most settings, does not resemble what the civil litigation community seeks when hiring a mediator. Hard core litigators do not hire mediators because they have reputations for being sensitive, empathetic, active listeners who facilitate communication without affecting outcome. Mediators peddling these skills and processes to the litigation community and are fast convincing themselves that there isn’t a career path in mediation. The data doesn’t support the conclusion. Mediators who want to be facilitators and transformers have two choices, and selling those skills to the litigation community is not one of them. Facilitative mediators can find other outlets to practice their skills, such as workplace conflict in enlightened organizations and family law, or they can get serious about figuring out what the litigation marketplace values.
If this sounds like a harsh approach, the people behind the make-up want mediators to know that it is. On purpose. The mediation community in 2006 must either meet the needs of the litigation community as they are today, or be prepared for a massive exodus from the profession in the coming years.
For now, those wanting to practice facilitative mediation, help parties feel listened to, connect with the better part of the participants and appeal to the better part of the humanity in those with whom they are attempting to resolve conflict, need to learn some of the skills from the dark side, hereinafter known as Heavy Metal Mediation.
OK, so Make-Up, but what was the message?
This session unabashedly discussed the realities of mediation including such taboo subjects as manipulation, intimidation, mediator tactics, mediator ego, lack of real confidentiality, and how to void a mediator liability policy (with a special guest appearance (sans make-up) by Betsy Thomas from the band at Complete Equity Markets).
One example of the taboo issues this group raised was the question about why mediators try to ascertain the parties’ underlying interests if not to use them to manipulate the parties later in the negotiation? When a party tells the mediator that they really cannot fund a full-blown, scorched-earth litigation campaign, while this might be confidential from the other side, doesn’t the mediator simply use that information late in the day when that party is holding out, resisting movement toward settlement? Successful commercial mediators from the Dark Side will say (at 5:30pm), “But I thought you told me this morning that you couldn’t afford to go that route. Isn’t it in your best interest to move toward settlement at this point?”
While many self-respecting mediators may have just gasped, and perhaps rightly so, the ugly truth is that the litigator sitting next to that party wants the commercial mediator to say that to their client – in part because they cannot.
The presenters told the attendees that those who are faint of heart should not pursue commercial mediation. One said that commercial mediation is for meat eaters. Commercial litigators demand that the mediator have an energy to play an active role in the mediation. Surveys and feedback have consistently shown that in most litigated cases, the attorney-advocates want the mediator to play an active, rather than passive, role. Some have made fun of what they call “potted plant” mediators.
Brash statements? Yes! Necessary to hear? Absolutely. For many mediators, this is the reality of the commercial marketplace. Successful business development requires defining the marketplace.
Kendall Reed, a Los Angeles mediator explained, “In KISS, Berman, Obradovic, and Kichaven have identified a brilliant metaphor for today's successful mediator: virtuoso technical skills combined with outrageous, in-your-face energy!”
Those in attendance took copious notes as the presenters talked about what not to do, and described how each of them work hard to get outside of the box to create, invent and manufacture settlements when none appears possible. This is what the real world of commercial mediation demands. Litigators want die hard closers. They are paying mediators thousands of dollars a day, and they expect results.
The presenters went out on a limb.
Lee Jay Berman and Jeff Kichaven from Los Angeles, and Michelle Obradovic from Birmingham, Alabama knew that the message was so important that they were willing to risk sacrificing hard-earned professional capital to drive this point home. Outfitted in full face make-up and authentic KISS wigs and T-shirts and costumes, they ventured out among the retired judges, seasoned litigators, academic educators and successful practitioners who are their colleagues and put their reputations on the line in order to create a visual anchor for those who attended the session.
All three are Fellows with the International Academy of Mediators. Berman and Kichaven are affiliated with Pepperdine’s Straus Institute, and Obradovic with Cumberland School in Birmingham. These are serious mediators, all three of whom are rarely seen out of a business suit.
“Really good mediators are really quite unique. These three showed us that, and showed us that really good mediators are, likely, also risk takers.” said Samuel “Chic” Born with the Ice Miller firm in Indianapolis. “The fact that they ‘played’ characters from a KISS concert not only implicitly – but explicitly – demonstrated that the work we do must continually involve…being creative. That is, in my judgment, the mark of an effective mediator.”
In addition to the costumes, the Heavy Metal Mediators continued to deliver the wake-up call by occasionally going so far as dancing around or climbing onto the tables to make their points. Attendees said it was a great reality check for them.
“Platinum all the way to "Heavy Metal Mediation: Real Tools for the Real World"! The presentation format was great fun and kept focus riveted for the entire session, but the fast-paced, thoughtful discussion of mediation tools used by three highly-skilled mediators really stole the show.” said Jack Sylvester, a mediator from Maine.
Some Highlights of the Content
One important point had to do with evaluative mediation. Kichaven said that mediation often works best when lawyers want the mediators to help "break bad news" to their own clients about the downsides and weaknesses and risks of their own side of the case. Mediators uncomfortable with this kind of evaluation are unable to help the attorney. Kichaven emphasized that mediation rarely works when lawyers want the mediator to "make them understand just how weak their case is" where “them” means the other side.
Berman said that “cost of litigation” analyses are dead and should be buried. While a very real economic component of any case, sophisticated litigants do not need mediators to hit them over the head with it. He said that a cost of litigation argument is a mediator’s weakest tool and, if used at all, should be used in a way that suggests that the parties must have already considered this, but that it might bear repeating.
Kichaven said that it is foolhardy not to consider the lawyers to be the mediator's "clients," He cautioned that it is foolish to disagree with a lawyer regarding their evaluation of a case, emphasizing that they know and have analyzed their own case better than we know or have analyzed their case (or at least they THINK they have!). Berman says that the mediator knows the least about the case of anyone in the room – both at the start of the mediation, and at the conclusion. Some mediators might disagree with these statements, but should not forget that mediators are only told what the parties want them to know. Kichaven reiterated that mediators will almost never persuade a client to believe anything different than their own lawyer has told them about the strengths and weaknesses of their case.
Obradovic talked about convening, saying that she uses confirmation letters and checklists mostly to ensure that counsel prepare for the mediation and to spur them into having preparatory conversations with their clients. Berman echoed that for him briefs serve the same primary purpose – to force the attorney to think about the strengths and weaknesses of their case and their settlement posture, and forward it to their clients to read.
Preparation and working with counsel to set the mediation up for success was touted by Obradovic. Where convening and pre-mediation are taught in most typical mediation trainings, Obradovic emphasized that most mediators miss important opportunities to discuss various process design options, such as the need for multiple sessions or whether to negotiate in phases such as classification of injuries, damages for each class and attorney's fees. While Obradovic said that the mediator should continue to guide the parties in their preparations up until the mediation day, all three agreed that this is best practice, and that finding the time in a busy mediation calendar is the biggest challenge, litigators expect this level of service for the fee they are paying.
Berman challenged that it is the mediator’s job to ensure that the right people, with the right authority are at the mediation. He said that this is part of convening, and that the parties count on the mediator to do this, and that to think otherwise and be “hands off” is naive.
Berman also claimed that, in truth, the mediator is the one responsible for impasse. He said that impasse was nothing more than poor planning by the mediator, and referenced his article in the materials titled, “Impasse is a Fallacy.” He challenged every mediator in the room to take the responsibility for being the only professional in the room who sees both sides of the case, should understand each side’s negotiation strategy, and should see early in the day if the negotiation is headed for an impasse and head it off before it happens, rather than letting it occur. He told the mediators present that they needed to maintain a bird’s eye view of the mediation, rather than allowing the parties and their counsel to steer their attention to minutia. He challenged mediators to stop having conversations that begin with, “Yeah, but…” and take responsibility for moving the discussion toward, “What does this mean to us in the big picture of this case?”
Those who shared the Heavy Metal experience with Berman, Kichaven and Obradovic will likely never mediate the same after this experience as they did before it. The message was highly practical, the presentation was passionate, and the costumes created an unforgettable visual pneumonic. Berman introduced the session by telling the audience that the presenters were going to challenge them. It ended with him respectfully suggesting that they go home and take one of those rubber wrist bands from a fundraiser, flip it over, and with a marker, inscribe WWKD on the bracelet and wear it to their mediations as a reminder of the experience from that day and to motivate them to be unique, take risks and get out of the box of traditional mediation.
The inscription? An light-hearted, humorous acronym for “What Would KISS Do?”
For those who did not attend the session in person, the audio CD is available through the ABA Section on Dispute Resolution. Don’t let the Parental Advisory Label scare you.