When a recent case was scheduled and one client would not be present in person, an attorney called me to discuss the client’s participation by telephone.  After a short discussion, we decided to have the client (let’s call her Meg) participate via Skype.

Neither attorney had experience with Skype.  Both clients were experienced Skype users.  After some initial reluctance, all agreed to Meg’s Skype presence for mediation.  Still on the day of mediation, concerns surfaced.

We started early.  As a frequent user of Skype, I was comfortable.  I conducted telephone mediation as an appellate mediator for several years.  Thus, I was conscious of the differences the telephone could add and subtract.  With telephone mediation, you have to shift your focus.  Listening to tone of voice is exceptionally important.  Deep sighs and tempo are important as are pace and pauses.  My first course on mediation in 1997 was from Judy Mares-Dixon and Bernard Mayer at CDR Associates in Boulder, Colorado.  Judy was blind and demonstrated that when you cannot see, your focus alters and you pay attention to other details.  Judy encouraged us to try to heighten the use of all of our senses.

And, as we know, watching body language is also important.  It accounts for 50-65% of our communication.  While negotiating in-person, noticing body language happens out of the corner of your eye if you are trained.  With Skype, you must focus more on the images on the computer, intentionally noticing the clues.  Turning the computer so that the client can see body language of counsel and/or the mediator is also key.  One benefit of a computer is that unhelpful body language, exasperated sighs, and/or difficult conversations can be edited by simply turning the screen.  For example, if an attorney has a difficult message to convey, he can gather is thoughts, take a deep breath and relay the response in a more controlled manner.

My role as the mediator was tuned into new ways of helping lawyer and client through their negotiation process.  And, Skype was helpful for their difficult negotiation.  They were not trapped in the same room.  They could take brief breaks, eat a snack or read their mail during the breaks.

There were other benefits as well.  Meg was more relaxed.  Due to the issues in the case, she did not want to be physically present.  Whether or not her fears were justified, Skype alleviated her concerns.  As the mediator, I also thought about my tone of voice, the occasional problem of voices that break due to connectivity problems, and the ways those problems may be more difficult to control.

I also had an interesting experience when Meg muted us as she conferred with a support person.  As we watched her body language, it was clear from her crossed arms and angry expression, she was becoming frustrated or angry.  Perhaps she thought since we couldn’t hear, we would not know.  Out of courtesy and deference to her desire for privacy, and knowing that she may not understand what I could see, I felt it was most appropriate to end the call and send her a chat message.  My message stated, “We decided to hang up for now.  Give us a call when you are ready.”

As the case was nearing settlement, I sent the proposed settlement to Meg in a file on Skype.  She was able to print the document, ask questions, sign the final version, scan it and send the signed agreement back. We did run into technical problems on several occasions.  I would mediate via Skype again, but I recommend it only with a trained professional mediator who can work with the subtle communications differences and with a mediator who has technical Skype experience.

In a recent series of mediations, I encountered a number of people who began to “hate” each other.  Each time, allowing the parties to talk resulted in far less hatred.  Picture a conference table full of men in dark suits in one room angry about a dispute regarding a contract.  Distrust and hatred were palpable.  Down the hall, the other party to the contract was sitting with his spouse and his attorney.  He was sad and frustrated.  Both sides were distressed and disturbed.  They were good friends but significant problems had arisen.  A lawsuit had been filed, and for many months neither side had talked to the other.  The legal issues were complicated.

I mentioned early in the process that a few select men may need to speak to each other.  Attorneys were reluctant.  Clients were intrigued but wary.  After ordinary attempts at settling the dispute seemed to be yielding no results, I brought the key people together.  They shared stories.  They cried and laughed.  They solved their problem.  All indications of hatred disappeared.  Like so many others, these good people appreciated the opportunity to discuss the issues in a controlled setting with a trained mediator.

That day I felt I was working to correct that pull of hate, as I do more often than not.  ”Hatred paralyzes life: love releases it.  Hatred confuses life: love harmonizes it. Hatred darkens life: love illuminates it.” Reverend Martin Luther King, Jr.  Thanks Dr. King for reminding me of why I love my job.

But, this is not realistic.  So . . . what do you do if you need to negotiate by email?

1.  Be clear and concise but not terse.  Generally, the recipient will only read a line or two – maybe three if you are lucky.  They will skim.  So, get to the point.  Explain your interests, the options, your other alternatives clearly.  Read the email to see if it is too abrupt or interpreted to be rude.

2.  Be professional.  Open and close the email as you would a letter.  When I receive an email, I notice whether it is terse or professional.  Although I try not to be affected by lower case letters and strange spelling, I feel the informal language indicates the person writing the email does not care about me, the topic or my impressions.  Email messages from phones are different.  If a person responds to me from their phone, the informality is more acceptable to me.

3.  Read the email aloud to yourself.   Pause.  Think.  Read.  We send emails too quickly.  According to Psychology Today, studies have shown that nearly half of the time, recipients were NOT able to correctly interpret the tone and tenor of the email. Humor can be misinterpreted, mild displeasure can be read as a tirade, and serious comments can seem sarcastic.  We all have difficulty hearing our voice or email as anything other than what we intend.  Some people can effectively use dashes, dots, spaces — to indicate pauses.

As with all negotiations, pay attention.  Be professional.  Be clear about your priorities, and negotiating by email will serve you well.

Fast forward to 2011.  If you haven’t, I highly recommend you watch “Buck”, a movie released last year during the Sundance Film Festival.  Buck Brannaman, the real life horse whisperer, uses skill, gentle but firm guidance, humanity, listening, learning, patience — to train horses.  He quietly mentions the problem often lies with the people, the owners, rather than the horse.  He is not just whispering to the horses, he is talking to the owners.  He is teaching horses to work with people and people to work with horses. He is a mediator between horses and their owners.

But, how does Buck do it?  He first bonds with the horse.  He builds trust.  He then begins to work with the horse in predictable ways.  He is patient.  He watches the horse’s reactions.  He listens.  He simultaneously works with the owner.  He asks the owner about the problems with the horse. He listens. He explains his approach to the owner.  He is bonding with the owner.  He is gently guiding the owner to train the horse differently, with guidance rather than force.  To many it appears that he is training the horse.  But, he is clearly working with both the horse and the owner.  In one instance, Buck tells an owner she has too many horses and cannot be providing a quality of life for any of her horses.  Like many horse owners, she sees her horse and the horse training process differently and feels Buck has worked a miracle.

Mediators use a similar approach to guide clients and their attorneys to work together to resolve conflict. Mediators build trust with both sides based on years of experience as professional neutrals.  Mediators listen, learn and help people process the legal arguments and the various ways the court could rule. Mediators reframe the problem so both sides see it differently.  Force is not helpful; straightforward analysis is helpful.  The clients begin to form solutions.  With proper timing and careful presentation, mediators deliver hard messages about the problems with their case.  Cases often settle, and people feel the mediator has done his or her “magic.”

Don’t make the mistake of hiring the iPad Mediator — or, let’s say, the mediator who does not work hard to help the parties settle the case.  Find a mediator who will work your case, stay with it until it is settled — unless, of course, you don’t want to settle.

As mediators, we often meet these so-called “crazy ones.”  They are involved in litigation. They start businesses.  They take risks.  They see things differently.  Others may be frustrated with them, but experienced mediators can utilize their (seemingly rebellious) energy, their differentness, to help solve the conflict.  They can make life interesting and enriching. They often find themselves in conflict because they are not fond of rules.  Or, they view rules differently.  They may think about things on a vastly different level. Perhaps they are detail-oriented, even obsessive.  Rushing them is a mistake.  Perhaps they are big picture oriented.  Getting them to sit still while the other side processes can be crucial.  Often it is not what we say to such people, it is how we say it and when we say it.  Often both sides see the other as outrageous.  Our charge is to help both sides see the other’s perspective and find solutions – without labeling either side “crazy.”

This is a sneak preview of my presentation in Reno, Nevada on October 19, 2011 — “My Neighbor is a Sociopath: Working with Difficult Personalities,” for the Northern Nevada Chapter, Community Association Institute.  See, CAI Nevada.

Mediation and arbitration are two methods of resolving disputes without going to court.   Arbitration is similar to court in that an arbitrator (rather than a judge) listens to evidence and makes a decision.  Unlike court, the parties (rather than the state) select and pay the arbitrator. However, if you are unhappy with the arbitrator’s decision, you have little recourse.  Generally, you cannot appeal am arbiter’s award except under limited circumstances.  Over the past few years, arbitration has become somewhat disfavored in some areas of law because many believe it does not save time or money, and arbitrators are reputed to “split the baby” rather than strictly apply the law.

In contrast, in mediation the parties hire a mediator to help the parties reach a mutually acceptable solution.  The mediator does not make a decision.  The mediator helps the parties find a solution both can agree upon.  After the case is settled, the parties enter into and sign an agreement, and neither side can or needs to appeal because they have agreed. Mediation is favored in most lawsuits, but community association cases are particularly good cases to mediate because often fostering good relations or expediting settlement is more important than winning in court.

How does this play out?  For the community association with significant leaks in the roof, the parties will likely agree to mediate. As a Board member you should have been informed that a multi-party construction defect lawsuit is expected to last 2 to 3 years – and is estimated to cost at least $250,000 in attorneys fees, depending on your jurisdiction.  Let’s say the repair will cost $2 million.  There is no guarantee the association will win the lawsuit, receive a $2 million award and be able to collect it.  The roofer and the general contractor may be bankrupt and unable to pay the amount awarded by a court.  Insurance may or may not cover it or be in effect.  In many instances, the insurance companies will seek to shift the responsibility.  Your lawyer may advise you there may not be coverage, even if you win.  Faced with all of this, attorneys often suggest hiring a mediator to assist in resolving the dispute and getting a settlement rather than taking these risks.  In mediation, the roofer, the developer, the architect, and the general contractor will likely agree to pitch in to fund some of the cost of the repairs.  You will likely compromise for a smaller amount, but the lawsuit is over.  More importantly, your board has incurred much less in attorney’s fees, and the amount available to fund the damage is no longer uncertain.  Possibly most importantly, the board can begin to hire contractors to fix the damage before the weather hits.

Some consumers of mediation services believe they need someone “with authority” who will tell the clients or attorneys what to do or make them see the light.  Likely you do need a person who understands the law and will provide an effective reality check of how a court may rule — but be careful.  An authority figure without proper training or skill as a mediator may blow the deal.  What you really may need is a mixture of skills — such as Eric Galton of Austin, Texas or Jeff Kichaven of Los Angeles, California ( Master of Mediation Moves Up), both involved in the International Academy of Mediators.   At times, attorneys may need a mediator with expertise, for example, in appellate law or Chinese culture.  At other times, subject matter expertise is less essential — the clients need a mediator who listens and provides a reality check they can actually hear. Whatever the case, select your mediator carefully and focus on what will best serve the interests of the clients.

1.  Research the mediator on the internet.  Is the mediator experienced?  Check out their webpage and/or blog.  Have they attended extensive training?  Have they mediated frequently – at least 100 or more cases a year for a few years? Are they involved in professional organizations?  Do they have “reviews”  such as references on their webpage and/or comments of attorneys and clients?  What can you glean about their expertise and style on their webpage?  Do they seem appropriate for your case, your clients, the other clients?

2.  Call people.  (You can email, but the answers will not be as frank.)  What do consumers of that mediator’s services have to say?  Attorneys?  Clients?  Can the mediator handle difficult and yet typical conflicts such as the client who wants to litigate as a matter of principle?  Can the mediator move parties past impasse to a signed agreement?

3.  Interview the mediator.  How will the mediator handle the mediation process?  Does the mediator call parties in advance?  Will the mediator actually read briefs?  Does the mediator adjust the mediation process for each case?  Or is each case conducted the same?  How will the mediator handle and organize this kind of a case?  You can and should ask all of these questions.

4.  Does the mediator have a joint opening session?  Why or why not? Most professional mediators will be flexible on this point.  Like most mediators (particularly those involved in the International Academy of Mediators, see www.iamed.org), I talk to attorneys in advance. I generally ask whether a joint session would be useful.  I mediate many cases with complex legal issues, multiple parties, and/or high emotional content, so advanced discussions are important.  In most instances, the clients and attorneys have an opinion about the usefulness of the joint session that must be carefully and thoughtfully discussed.

At the current time, most attorneys want to avoid the joint session, particularly if they have not been in a mediation with a skilled mediator.  They have seen the joint session “blow up”, and have spent hours trying to calm a client.  Experienced mediators understand how to make a joint session productive, and how to allow parties to have an effective conversation.  A brief pre-mediation discussion between the mediator, the client and the attorney can assist enormously in determining if a joint session is a good idea, and, if so, how and when to have a joint session.  The mediator can also assist the attorney and client in making the joint session productive.

For example, in a recent case two people who were in litigation regarding their business venture were privately discussing with me whether a joint opening session would be helpful.  Both parties were naturally hesitant — they were in a lawsuit.  They had been close friends some years back.  One party was pretty angry due to the protracted litigation and concerned he would rage out of control.  The other party was willing to talk.  One attorney had prepared an opening statement and documents to share and wanted a joint session.  The other attorney was opposed to a joint session because his client was angry.   I talked to both clients and explained the concerns on both sides.  I suspected that because the clients had been friends, a joint session would be important at some point in the mediation.  After obtaining both sides agreement to have a joint session, I asked both attorneys to keep their comments factual, not emotionally charged or argumentative.  The joint session was helpful, an efficient use of time, and allowed the parties to begin negotiating more quickly than usual.  Hours were saved because they heard the concerns from the other side, and did not spend time questioning me about the other sides motives, concerns and priorities.  After the negotiation was over and the documents were signed, the parties met again and thanked me for the manner in which the mediation was conducted.

In another case, the clients insisted they must remain separate.  However, as the negotiation progressed, they wanted to speak to each other in a controlled setting.  They were in a lawsuit that had lasted more than 4 years regarding property.  They attended church together, and they were neighbors.  They wanted to clear the air.  The joint session was warm and friendly.  Attorneys were not present.  The clients were able to resolve the dispute in a manner neither side had discussed privately, but resulted from joint brainstorming.

I think about these stories when I listen to attorneys casually discussing the mediator selection process.  They are clearly interested in mediators that their clients like and trust.  They do not like mediators who tell both sides simultaneously that their case is weak and don’t identify real weaknesses.  And, they do not like mediators who lie.  They like mediators who listen to their clients and yet move the process along, despite long-winded, unfocused, emotional or entrenched clients.  They also much prefer mediators who “get it done”.  And, they  appreciate prepared, organized mediators with the ability to use different skills depending on the case.

If you take time on mediator selection, you will likely experience an efficient effective mediation process that results, more often than not, in a solution that both sides actually feel ok about.

On June 23, 2011, the Oslo Forum Network hosted a discussion entitled “Talking to the Taliban.”  This year the forum invited “real-life Taliban” to the table to talk, according to The Economist.  In 2003, the Centre for Humanitarian Dialogue launched the Oslo Forum Network to enhance the status and reputation of mediation as a profession and to improve “conflict mediation.”  The forum provides unique opportunity for professional mediators to share their experiences in a “discreet and informal setting.” And, the forum is promoting gender diversity of the professional peace mediators of these armed conflicts.  Bonus.

Imagine sitting in a room with leaders of foreign countries working on a mediated solution.  I have heard both Roger Fisher and Bob Mnookin discuss these conversations.  I have never known the extent of Fisher and Mnookin’s experience as professional mediators versus their experienced as Harvard professors, but it seems their involvement was at least an improvement over using diplomats.  Not that there is anything wrong with diplomats. Its just that for years these efforts have been led by diplomats, largely because they are respected and trusted, not because they are trained to resolve conflict.  Maybe the warring countries could find deeper and more satisfactory resolutions to their conflicts with a professional mediator?

Seems similar to the waning propensity in the United States to use untrained retired judges to mediate legal disputes. Trained judges can be very effective as mediators, it is the untrained retirees who cause concern.  Like diplomats, retired judges are trusted and respected, and often parties want them to use their muscle to force a solution.  But, like diplomats, they often lack the training to read cues, understand underlying concerns of both parties, read between the lines and help warring parties reach a sustainable and deeply needed resolution to their conflict.  Besides, often using muscle is the opposite of what parties in conflict need.  Perhaps we can find some peace for armed conflicts if we indeed shift to using professionally trained mediators.  We can only hope.

Generally, lawsuits are brought by individual persons.  Class actions are exceptions.  A class representative must be part of the class and suffer the same injury to justify allowing a class action.  The district court had permitted the class to be certified on the basis that the claims shared enough “commonality” to raise the question of whether Wal-Mart’s had a single set of corporate policies that may have unlawfully discriminated against female employees.

Yesterday the United States Supreme Court in a 5-4 decision reversed the district court, ruling that questions of law or fact were not common to the class.   According to Justice Scalia’s opinion for the majority, “Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”

The dissent disagreed, stating that the district court’s finding of commonality should not be reversed absent an error or law or an abuse of discretion.  In other words, the trial court’s finding should be affirmed unless there is something really wrong with it.  The district court’s findings provided that women fill 70% of the retail positions and only 33% of management positions, women are paid less than men in almost every region, the salary gap widens over time, the systems for promoting employees were sufficiently similar to raise issues common to all class members, and Wal-Mart’s gender bias permeated the corporate culture.

So, is that the end of it?  Hardly.  Businesses think the decision will curb unmeritorious class actions.  Plaintiffs’ attorneys think it will deter legitimate claims because individuals will have difficulty obtaining counsel to fight large corporations.  The attorneys for the plaintiffs said they will regroup, initiate individual claims, and determine how to bring class actions perhaps by regions.  Let’s hope they all think about settlement too.