By Dan Gephart, May 27, 2923
In the first of this two-part article, we talked to the Federal Labor Relations Authority’s Michael Wolf, who is director of the Authority’s Collaboration and Alternative Dispute Resolution (CADRO) program about that program’s success. [Editor’s note: Visit here to learn more about CADRO and its services.]
Wolf described CADRO’s style of mediation as “situational” as opposed to “facilitative or evaluative or some other label.” The key, per Wolf, was that the “parties define success.”
We wondered how CADRO’s approach applied to agencies trying to resolve disputes internally. [For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] We caught up to Wolf in between mediations and picked his brain on this important topic.
DG: What do you think is the biggest obstacle to resolving disputes?
MW: It depends. I realize that is not really an answer, but there is no other simple response that is also accurate. Most disputes we see in CADRO erupt from a set of unique causes, characteristics, and obstacles to resolution. From the standpoint of a third party who has no stake in the outcome, we help party representatives identify their obstacles and then help them adopt what they believe to be the most effective way to overcome those obstacles. This approach tends to result in parties that are more invested in making the outcome successful when compared to an outcome imposed by an outside source of authority such as a judge or arbitrator.
DG: What physical environment best creates an atmosphere for successful mediation?
MW: With rare exception, it is best for the physical environment to enable the mediator and participants to be free of unnecessary distractions, engage with an appropriate level of confidentiality, communicate effectively, utilize joint and separate sessions, consult with sources of information and authority when necessary, and be able to fulfill external responsibilities when required.
- The location should be reasonably available and accessible.
- Cost should not be a factor in whether a party is adequately represented.
- The space should not create a perception of favoritism or bias.
- The need to work outside of “normal” business hours might be a factor.
- No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.
I’m sure there are other considerations, but these are what immediately come to mind. I view available options based on five potential methods of engagement:
- Synchronous and in-person
- Synchronous and remote
- Asynchronous and in-person
- Asynchronous and remote
- Hybrid – a combination of synchronous and asynchronous, in-person and remote
Each of these methods of engagement give rise to a different set of considerations concerning the physical environment. For example, if one or more participants is expected to engage remotely, the impact of differential technology skills, equipment, support, and access could affect both process and outcome of the mediation.
DG: You’ve been an advocate for the appropriate use of technology in mediation.
MW: I’ve been an advocate for the appropriate use of technology in mediation since at least the late 1990s when I was the FMCS Director of Mediation Technology Services. Today, CADRO mediation and settlement conferences would not be possible without a very heavy reliance on technology and remote engagement, both synchronous and asynchronous. I am not a believer in the use of technology to repair fractured relationships, but I have found it highly effective when used appropriately to mediate labor disputes.
At the same time, I tend to be “old school.” I prefer in-person engagement for disputes that are complex, serious, and consequential. But I also recognize that in-person engagement can enable disputants to misunderstand each other as well as understand each other. At times, in-person engagement can cause a disputant to feel threatened and therefore become defensive, maybe misinterpret what is said and done, and become a barrier to success.
Sometimes mediators can control the physical environment. Other times, we have more control over the factors that impact and result from the physical environment. A skilled mediator should be able to spot the issues on the fly and make necessary adjustments when needed.
DG: Can you name a few steps that someone in a dispute can do to bring two sides together – even if they are on one of the sides?
MW: Let me start with a few of the things I suggest that person should not do. They should:
- Not pretend to be neutral if they are linked to one of the disputants.
- Not try to determine or shape outcome.
- Do their best to not be influenced by judgements or assumptions about the disputants or their issues.
- Avoid the urge to offer advice (except about process).
- Not try to save either disputant from themselves.
- Actively avoid shifting the balance of power between disputants.
- Not try to shape the disputants’ “truth.”
- Avoid becoming so frustrated that they feel compelled to adjudicate the matter.
- Not reveal matters shared with them in confidence.
Above all else, “do no harm.”
Now a few ideas about what they might do to help. First and most importantly, listen actively! Second, help them agree on a problem statement that is in the form of a question to which they both seek the answer. If they can’t agree on the question, it is unlikely they will agree on an answer. Jointly attacking the question can also help them avoid attacking each other. Third, help each person first explore separately and then share jointly why they care so much about the answer to that question. Write down the reasons they care (bullet list, not long paragraphs). Help them compare and contrast what they care about to see what their lists have in common. Generally, they will find it easier to agree on solutions if they share a common list of reasons why they care about the answer to the question.
Fourth, facilitate joint brainstorming of possible answers to the question. Encourage both to offer at least several ideas. The more the better. Get them to think outside the box. Discourage criticism of each other’s ideas. Try to write down every idea, even the ones that seem wacky. Encourage them to build on each other‘s ideas. Then discover the ideas that rise to the top and help them explore whether one or possibly a combination of ideas might be worth trying.
If they seem to agree on one or more ideas as a path forward, help them develop an action plan to implement the ideas. Follow up in several days and then again in several weeks. Help with any operational issues. Refer the matter to someone with expertise and experience if necessary.