Lecture "Learning from the World of Mediation Clinics" (in English)

my name is hman I am labor judge at Regional labor Court I'm here with marusan are supervisor judges of the fourth edition of the Practical module on mediation so we are here opening this talk which will wrap up the fourth module of the Practical handson program on mediation opening this to the 2 the Brazilian Regional labor Court also for the labor public Ministry and the school training for the regional labor Court employes welcome you all for this talk this closing talk of our modu of our course which has already trained hundreds of mediators and it's

an honor and a joy to welcome here my I'm not going to call her my former Professor but my always Professor Mrs Stephanie blondel welcome Professor blond Professor blond is an associate profess professor faculty director at The Institute for disp resolution where she leads the St mediation Clinic teaches various courses including mediation theory and practice psychology of conflict and ethical lawyer she plays an important role in the humans negotiation Academy and teaches the course mediating liated in several this is a onewe program that I strongly recommend to all of you before joining she managed count

alternative dispute resolution program was the alternative dispute resolution coordinated for Seattle City government where she also imped an employment mediation program she recently received the Southern California mediation Association president award in3 she she received another award from Association the L Rand Flory award now allow me English to her well first of all I want to share with my colleagues that very recently Professor Ste Stephanie lost her beloved father and here I want I wanted to express my condolences for the painful loss and wish that you and your family find the strength to deal with your

father's passing we are all moved by your presence today and your eort to be here is something that Inspire us mediators to move forward in the face of adversity that being said my initial invitation to Professor Stephanie was made at the quest of the public Ministry of Labor instead public TR they approached me for a recommendation of an excellent professor and a huge talk and they were very pleased when they learned of your name unfortunately participation there was not possible but I decid to take a risk and invite you to today's event and I am

grateful that you accept Stephanie was my professor in the mediation Clinic during my master's degree in the US and there she was responsible for teaching mediation in practice my colleagues and I would go to the judicial courts to observe comate and mediate and from there we brought back good experien best practice and let's say not so good moments sometimes we would debrief discuss cases and receive feedbacks something very valuable for mediators and Professor staan that is basically what we do in the 60 hour practical program that ends today with your lecture nobody nobody better than

you to be here today and to talk about the learnings we have in this very important stage of mediation we are looking forward to your approach you are very welcome and the stage is is all yours you so much thank you so much thank you um I appreciate uh Professor Hoffman Judge Hoffman for having me here and all the other esteemed professors judges prosecutors that are joining us today I appreciate the invitation to speak with you this morning and talk a little bit about the practical skills of mediation of which you have just I I'm

hearing and learning completed your fourth module um as you've already heard my uh bio and my background I have a special appreciation for labor courts um as well as the entire judicial system I have spent my career in court annexed mediation or labor mediation those have been the two Prim AR places that I have run panels of mediators so I worked originally my first jobs in mediation were in Court Annex mediation where we would show up on the day of hearing and try and mediate cases then I moved into the world of labor and employment

and I have returned to the world of Court Annex mediation as I run a clinic at Pepperdine law school this Clinic trained mediators from around the world as well as domestic us lawyers in the skills of mediation my personal Rand Detra reason to be is to help people take the theory of mediation and put it into practice what we call table skills to focus on the table skills of mediation and that's what I am here to talk about I've organize this particular talk as you can see around lessons from the world of clinical education so

those things that people routinely and archetypally do incorrectly as they're transitioning from the world of advocate into mediator so we see patterns um this is my experience I've trained now over a thousand mediators and the practical skills and how they take the skills and translate them into the practice of mediation can be quite typical I think in the initial problems that arise so I'm going to reflect on this particular aspect of teaching mediators um over the years I've run what we call practicums where you take mediators and put them through skills based boot camps and

then in Washington state where I was from we ran a practicum where people needed to comedi six real well observe first six mediations then com mediate six mediations then move into six real um solo mediations all of those actually were cases um grievances UNF labor practices they were Court Annex cases or lawsuits and so that practical skills uh training that that under um underlied um the the the experience of learning to be a mediator is critical so the first thing I want to start with is looking at what are those skills that make good mediators

I'm not going to spend a lot of time on this particular slide because as you can see it's words words words words and as we're dealing with interpretation um that may be frustrating I'm going to focus on a couple of these competencies but as we're taking mediators from beginners to um proficient the these are some of the things that we look for to make sure that those mediators have competencies part of what we look for is do the mediators understand more than the rote linear model because the mediation model as you've learned is so much

more than being able to bring people through the stages in the mediation but being able to adapt and take certain stages using them out of order if that's what the particular parties need or to return to different stages because of the circular nature of conflict and people's conflict narratives so this nonlinear approach is just as important as The Beginner's linear approach the ability to flex into that we're also assessing whether or not people can use those skill sets that you've been taught active listening if you're choosing the right tool and using it for the right

time if you're able to build rapport with each of the parties if you're able to understand and effectively use what we call the batna and watna so I'll spell that out B A TNA a or w a TNA if you're able to talk about the next stage which of course in Court Annex mediation is always the lawsuit the grievance if you're able to talk about that next stage in a way that without overusing your power helps people understand the risk that they're facing we look to make sure that the mediators know how to use impass

breaking techniques and we look to make sure that people are able to close because um you can mediate all day and unfortunately I have watched mediations that go on all day but at a certain point uh there needs to be those closing techniques these are the mediator competencies that we look for now I'm going to pause and go on to what I've chosen which are seven archetypal new mediator mistakes those mistakes are as follows new mediators tend to under utilize the skill of Interest identification interest identification I'm sure you've been taught and I don't want

to repeat what you've been taught but I'm going to go back around and circle on that skill for a moment and highlight basically take my yellow pen and underscore the important aspects in an attempt to get usually lawyers who who I'm teaching and judges to use a skill that is not part of the language um of legal discourse new mediators tend to misunderstand the Persona of mediator and tend to underutilize their skills because they may misunderstand the breadth of that particular skill new mediators tend to do something we called reality testing too soon which means

they tend to ask those questions of risk and cost in a way that does not fully utilize the skill to its I'll call it its um best ability reality testing is one of the most effective and impactful skills that a mediator has but used too early or used too frequently it's not as effective most me new mediators Str struggle with using reality testing and maintaining Rapport at the same time that is a difficult skill that's a difficult skill um I still am challenged by this skill and we'll talk a little bit about it new mediators

tend to ask questions that are too long and sometimes confuse the parties so there is a value in pacing your questions or in asking longer questions as juxtaposed by short crisp [Music] questions my final two num mediators tend to misunderstand the value of empathy or misunderstand the actual definition of empathy and therefore the Practical skill set as applied and finally new mediators underestimate their value as a person not involved in the conflict and um we will talk a little bit about that at the um at the end it sounds like a funny statement but there

is um quite a bit of wisdom and being able to harness the value of um not being involved so that's our agenda and I'm going to quickly cover these seven points this morning then leave some time for question and answer for you first new mediators underuse interest identification so we'll talk about the skill of Interest identification and then talk for a second about reframing and you've been taught the skill of interest I'm quite sure but I'm going to um like I said highlight it use my yellow pen to highlight it because what I do do

not think most mediators do despite having been taught the skill is a problem solving skill is change the vocabulary words they use into a vocabulary of interests interest identification is the vocabulary of conflict resolution so rather than thinking about interest as something I use in a sentence to define or ask a question question or recap think about the entire narrative that you are speaking in as interest based and part of the theory there is if we use interests then the parties will start to use interests I'm going to come back to that in a moment

first I want to cover what are interests and I'm I'm I'm sure you're aware this is the definition of Interest I use they are one-word statements of needs and values and interests are always positive why one word one word statements of needs and values because we're more likely to help the parties get out of their conflict narrative that Loop where they're going around and round we often call it may tagging in the United States I don't know that's the name of a particular washing machine brand but when you look at an old washing machine where

there was you know you can see the clothes going around and around that perseveration or that Loop where the parties get lost in their conflict narrative we are more likely to be able to stop that perseveration if we are able to identify that value in a powerful and impactful one word what happens is that when most people use phrases or longer sentences to to identify interests it doesn't have the same sort of value of translating the conflict narrative from um what should I say translate the conflict narrative from um being stuck into the language you

need in order to negotiate so for examp example I'm going to take a very simple example of a a workplace where someone is talking about a boss who is a micromanager so employe says they're down my they're down my neck they're looking over my shoulder all the time I can't get anything done I can't um they they think I can't can't even add 2+ two now listen to the two different interventions the first intervention is going to be an identification of interests that's long and the second one is going to be a onew statement of

mean and value so here's the first so it sounds like you need to be able to be trusted in the workplace and you need to be able to have some space and to um to um be respected as an intelligent member of this workplace okay that was one now that is good right that was very good and it might really be an important and meaningful intervention at some point in the conflict resolution but it does something different than this next one so let me give you the second one autonomy is important to you can you

now give me an example of what autonomy looks like okay so you see that second one was the transition statement into actual negotiations or problem solving or in a law suit the terms of an agreement so when we think about interest identification think about it as more than a narrative paragraph but narrowing it down to that onew statement of needs and values where you then can ask questions to allow the parties to identify the terms that would meet that me Interest so in this way interest identification is the transition skill between fighting and negotiating and

the mediator's job is to be that bridge but that one word statement is is critical the other uh important aspect of Interest identification is that interests are always positive and this is something that I see new mediators doing quite a bit they sneak back down into the concept of interests um being values that they hear but not necessarily positive values so for example if you're working with a party and the party says this is a plaintiff and the plaintiff's saying um in in a caucus form of mediation I want them to pay for everything they've

done to me they have made my life horrible and I want them to pay the first word that comes to my mind is Revenge right and what we ask new mediators to do is to think of Revenge because that is a need and value that we're hearing very I mean if you're like me you're hearing that very strongly and you've heard this before most certainly but revenge is not a positive word so instead we label the word Revenge as a strategy revenge is a strategy to meet a deeper underlying interest revenge is a strategy to

meet a deeper underlying interest and what that might that be and you know with the narrative I just gave you you may not know you may not quite know um What the deeper underlying interest is but it might be something like closure accountability justice and that's where we as mediators then take that concept so let's say it's justice justice is important to you here and then I might be a little bit more reflective I might say something if I'm being a more evaluative mediator I might say something like justice is something that I see so

many of the parties who come before me in the mediation room trying to achieve and it's always interesting when Justice is ju opposed with a money value a dollar amount because few people feel a sense of justice with any dollar amount so let's talk more about how this dollar amount might be a symbol of Justice it's a symbol of Justice because you've gone to the top of the insurance cap it's a symbol of Justice because it's a symbol of justice and you help the parties think through that so in that way you transition someone from

RE Revenge to some other deeper underlying interest our interest words are these words which you've been exposed to this is just by way of a little bit of review but they're words like stability reputation acknowledgment appreciation fairness and as you know fairness is very different than Justice which could be very different than equity which could be very different um than dignity and those are words that often come up in labor disputes so this question and I'm sure you've heard the orange story what about the Orange is important to you I only put this up here

because there's this you know kind of quintessential story and conflict resolution about the orange and and seeing that there is more than what underlies the the um peel of the orange but there are the segments and that's where the interests are and the potential for integrative Solutions and I just put this up here as as a little joke um I think that question to get at interest which is what about the Orange is important to you or what about the blank fill in the blank is important to you is so important that I actually have

thought about getting it tattooed onto the inside of my wrist as you can see I've thought better of it I have not done that um and it looks terrible so I'm not going to do that but I have thought that this next question what about the Orange is important to you is that important um of a question for a mediator it is the question that comes back over and over again okay so that's um that's our first concept which is what the interest words I'm going to give one quick example um because now that you

have the interest what do you do with them I'll give one quick example and then we will um move on here's a scenario and for the the interpreters I will read slowly here a dispute between a labor and man man between labor and management has emerged based on interpretation of the collective bargaining agreement labor reports that regular um Labor Management committee meetings which are called for in the agreement are lacking they have not happened labor also reports they did not receive safety protocol and policy from management as required by Federal Regulation management reports labor has

regular scheduling conflicts making Mee meetings impractical if not impossible management accuses labor of trying to set up litigation unnecessarily so I've taken a very simple dispute one that would likely not rise to the level of a grievance in the US I have no idea in your beautiful country um but I did want to use this example to illustrate the layer of interests because there are often interests underneath the interests so on the face here of this particular little scenario we see that labor has interests the ones that they articulate labor would articulate in this particular

conflict that they are interested in protocol procedures safety but what are underneath those interests because those are all one-word statements of needs and values but sometimes we use interests um as a tool when underneath this layer of Interest it might be something like respect it might be something like valuing the relationship likewise management can often have the same interests as labor Management's interest and safety may be equal to if not greater than the labor interest and safety and from their perspective protocol and policy maybe different protocols and different policies are equally as important but management

also has an interest here not to be treated disrespectfully so respect is their interest as they don't want to be gamed they don't want anything gaming to set them up for litigation right so so there are different layers of interest and that's something else that the mediator is regularly looking for that sometimes can be missed of course the skill that you've learned no doubt in order to address this is you remove the bad guy from the sentence um and you try and identify that interest so we call this reframing and reframing is simply saying protocol

is important to you respect and I often don't even need to finish the sentence sometimes it's just a word ah respect um and that is often the thing that will break an impass or bring us um to fruition I recently was training a new group of mediators and they were all JDS they were all our jurist doctors all of our um new young lawyers and they have completed many of them 32 units in dispute resolution then we send them out to the court in their final kind of Capstone class and the reflection I got from

one of them is oh I heard all of these role plays where you know really respect was the issue and I didn't believe it and recently after having gone out to the court and completing her 18 cases she says what I learned was that actually it often was respect that those role plays that no doubt you all have um similarly been put through a series of was reflected back in terms of the litigant in the Court Annex mediation system so okay I'm going to um bring us to our next lesson that first one was the

longest um the next are crisp um new mediators tend to misunderstand the Persona of mediator and I want to introduce you or it may not be an introduction it may be a um review of a concept called multi partiality or Omni partiality or articulating your role as a mediator so in the Orthodoxy mediation across the world really we think of the mediator as the neutral the same way that you think of as a bench officer often as the neutral the judge the hearings examiner that type of thing however there is an active stance that the

mediator often takes that is something different than than neutral if you look up synonyms in English English language for neutral they're and they're words like disinterested they convey a lack of connectivity to the parties and that's wise in Court Annex Med in in in the courts often because the bench officer or the finder of fact does have an arms distance for valid reason the mediator has adopted this role often of the neutral as disinterested in the US at least I think this is because we do not teach neutral language we don't teach people how to

ask open-ended questions in in our country having an opinion is everything and being able to articulate that opinion and and it's an indiv idual istic culture in many ways and so the individual has a thought and many new mediators stepping into the role don't even know how to clean up their language in a way that sounds like they're not for the other side so new mediators in our country overdetermine the concept of neutral so they tend to be disconnected it takes a while I believe in order to practice the language of not being connected to

then step into a different Persona of the mediator and the Persona of the mediator that is the most effective when we do studies of the mediation Advocates and that means the people who are showing up at mediation as advocates the lawyers what they say is they want a mediator who's working for them this is tricky someone's working for you at the same time they're neutral right so there's an analogy and I don't know if you've seen the Thomas kilman scale before I'm going to assume you may have but we have conflict styles where you can

see on these two axes that this axes which is asserting your own interests versus asserting the interests of others are the positions of competing I assert only my own interests and asserting the interest of others I assert only the interests of others which is accommodation the mediator takes on what I call the collaborative Persona and it's often referred to in the literature as multi partiality or Omni partiality what does that mean it means that I as a mediator say to the plaintiff I'm here to help you get everything you need at the same time I

say to defendant I'm here to help you get everything you need so then rather than saying I'm neutral I'm not going to advocate for either there is a more popular stance I'd say at least in commercial mediation in the US where you do the opposite it and you say I'm here to get you everything you need and you everything you need but The Advocates have to understand and the parties as well that you're doing that in both rooms there is a more connected Rapport build building stance and leaning in to the needs of the parties

rather than leaning away from them now I understand that I am talking to um a panel of Judges as well as some prosecutors and probably others so this may be a controversial stance in Court Annex mediation where the judges are I I what I understand is the judges may be supervising a panel of mediators some of them may also have be conciliating or mediating um that particular particular Persona may have costs and so please um you know I beg your forbearance adjust this point to um what you've already learned and what makes sense for you

but underneath this point whether or not this is tenable or possible for you understand that at least the data has shown that the parties re a more connected mediator and there's many different ways that you can do that so in um you know in I'd say in summary and I'll I'll just project the Thomas kilman one more second here so you can see this in summary this kind of stance of Leaning into to both sides is often seen as a more effective mediator Persona and then the trick is and how do you articulate that and

you might say I'm here to help you get everything you need and I'm also here to help them um as opposed to I won't take a side for either I'm moving on to point three and four here and these skills are around reality testing reality testing is a skill that we use to ask people about the difficult aspects of their case about risk and cost essent essentially or often about the legal issues I want to demonstrate reality testing in what we call all four quadrants of Riskin grid so I'll introduce that and then show you

reality testing in different quadrants the skills that I think are could be developed here because this is what I see most mediators doing new mediators as soon as they see the error The Logical error or the error because um you know either there's a statute they don't know about or the costs don't make sense given the judicial system or the weight something like that as soon as they see the error they say it and that is a mediator no no excuse me just for one moment here it's important it's important for there to be a

delay um often between the moment you see the error and the moment you use the error um you take that The Logical error and you put it in your back pocket because you're going to need it later when you close and usually you don't have enough Rapport yet to be able to utilize the skill set um so you take it you put it in your back pocket and you wait when we train new mediators and we've trained you know we probably train I don't know close to a thousand a year um many of them say

yeah this I'm not interested being a mediator I enjoyed taking the training but it requires too much self-regulation I really love being an advocate and I love just jumping in there and as soon as I see it saying it and that is also a valid advocacy um technique can want a negotiation that you know often people um Excel from being able to jump into The Fray and see what they say or say what they see immediately but the mediator has to put it in their back pocket secondly mediators do often don't know how to ask

the question and have that question that they ask also be a moment of maintaining or even building Rapport when we ask these questions about risk or cost essentially asking someone like why are you doing that you know to to do that in a way that builds the relationship instead of detracting from the relationship is particularly hard let me expose you to a little bit of something that may also be review it's something called Riskin grid and it's a way of thinking about the four different styles and there are many more of mediation we have up

here the evaluative or directive mediator versus the facilitative mediator I see I'm not sharing screen I thought I was apologies the evaluative mediator mediator down here we have the facilitative mediator so these two Poes evaluative directive facilitative over here we have something called narrow which means you're asking questions of law interpretation of Rights you're mediating in the shadow of the law over here you're asking broad questions about interests what I started the talk um discussing which is those needs and values so here are four quadrants taking that into examples of questions I want to give

you an example of each of those quadrants so you will see how the mediator might ask different types of questions so we nickname these based on cities in the US so I'm going to go back and show you that one more time it's almost like I superimposed a map of the United States on top of this so up here the evaluative narrow mediator we often nick name Seattle Miami down here Boston and and um Los Angeles you know you can just ignore that on the slide um you would superimpose um beautiful country on top of

that and um you could do the same but as we're talking about a valuative narrow questions I've chosen a case and this is a case about disability so in the United States the American with Disabilities Act asks for re when when an employee asks for accommodations those accommodations must be reasonable so the employer has to know about them then the employer is required to give reasonable accommodations I assume you have something similar a schema that's similar so the evaluative directive mediator would say something like I'm concerned I'm not seeing the court to interpret reasonable accommodations

in the way you're describing you can see that's very directive does it build rapport maybe maybe depending on who's in the room depending on their learning style you see I would use this particular technique not based on my own personality but based on what the parties in the room need and many new mediators will make their interventions around reality testing based on their own personality rather than the needs of the party and being party Centric here's another example I'm going to give you an example from each quadrant so we'll go through with that the Los

Angeles mediator or the facilitative narrow mediator so you see it's not directive we're not telling you what to do but we're more open might be do you know how courts interpret this term reasonable acccommodation so you see the difference between I'm not seeing the courts interpret reasonable accommodations and the way you're describing and do you know how courts interpret reasonable accommodations and there are Rapport values in doing this Los Angeles style or the facilitative narrow with certain parties you can see in a facilitative broad there we're asking an open-ended question and we're asking it about

interests what will happen if you don't settle this here today tell me from your own language what you need in a workplace those are facilited abroad those questions build rapport more easily and often you get just what you need in order to know how to settle but most people at least in my experience don't ask as many of these types of questions the direct a broad example as you can see is more of a wisdom persona someone saying I'm sure this has had tremendous impact on your stress level and my guess your health what would

it be like to have this over with or if we're asking the questions around reasonable accommodations um what is it tell me more about how accessibility is important to you okay so those are examples of risk and's grid so as you can see the the evaluative reality testing um urges recommends but here both of these are the same under narrow and Broad they urge and recommend but here there's a difference between evaluating and counseling I'm going to ask the questions so you can see the difference have you ever seen a jury ignore the videotape it's

a very narrow evaluative question how would you defend firing when without documentation and you can see tone matters how would you defend firing without documentation has a very different impact likely then so how would you defend that firing without documentation one might build rapport m one might detract now this would that would be a question I would ask in caucus just in case you're wondering if I would ask that in open sess session I would never show um to management um that much difference if I were an open session and they were both there I

would have to then adjust the question um and I would not do reality testing like that in Open Session I would ask a reality testing question that applied to both of them um an example of the evalu abroad is I've seen people in your situation they're so relieved when it's all over so um a facilitative reality testing question are you aware of the last few jury ver verdicts um I'm not so I'm curious what's the judge likely to say about both of those questions are questions that might build rapport with the parties and more broad

questions what's most important to you what will it be like for you if you don't settle so knowing how to leverage what we call the Rapport bank account how to make deposits in your Rapport bank account because when you settle you will be making a withdrawal now if you're mediating from a position of power if you are mediating From the Bench you automatically likely have more Rapport the best mediators I know are the judges who are able to use something other than the positional power that they have because then when they get to impass they

might be able to use the positional power but if they've used up all their Capital that way prior they don't have that same leverage so I see that particular mediator who also has positional power which we absolutely know influences things using this Rapport bank account effectively as being some of the best mediators I've seen um okay we are going to because of time move past this particular scenario though I'm certainly happy to share my my slides um and talk about our last three um the first is quite simply um one that I have fear may

not play in Brazil in the same way it plays in the United States um we'll have to find out but new mediators failed to ask short crisp questions let me give you an example well now you've told me quite a bit about how the other party um has liability and you've given me quite a bit of evidence you've shown me the documentation as well as revealed to me um the potential witnesses that you will use and you're making this argument for liability however when we get to damages I'm trying to figure out where the damages

are because a court will not actually acknowledge liability in a significant way unless the damages are also significant okay so tell help me understand what the damages are you see that once again I want to say that's not bad it's long it's clear and it's instructive but it's confusing to the parties and I have seen the best mediators be able to ask those long questions occasionally but then to just oppose them with the crisp clear short question tell me about damages and if I haven't said it before tell me about at least in the US

um is a question it's a question and damages then the mediator keeps their mouth shut and allows the silence and the powerful impactful questions to land now I've given you an example about liability and Dam dages but where this technique of new mediators asking short C crisp questions is most effective is in decisionmaking questions helping people go from no to yes and I say all the time this is my job my job description is essentially I'm an expert in decision-making because everybody comes into a mediation with a no most certainly they come in with a

no and I guide them on a process from Nos and I can Pummel them I can um scare them I can you know there's a lot of things we can do my experience is that I don't want to be scared or pummeled when I'm making a decision personally you are more apt to get me to go from no to yes if you ask me questions that require me to be thoughtful reflective think deeply about my own risk and the costs of conflict that's me I prefer those types of questions and in many impath the types

of decision-making questions that engender that type of [Music] reflection are impactful short crisp questions okay the final skill um the final skills we have here new mediators fail to utilize the skill of empathy and they also don't understand their value as not being part of the conflict um let me check in I'm going to um just check in very quickly here let's I was going to play a video but we're not going to do that I'll refer you um and give you the reference to the video um at a later time I'm checking on time

I just want to ask it seems as if we're short on time yes no we are not short in time Professor okay so I don't hear it when um judge Hoffman speaks but I think he's telling me go a little he's saying it's okay right no time okay okay so not to worry about it so much okay well then um I will say a few words about empathy because I think it's it's so important the first thing I will do rather than play this video is refer you to a video which you can get um

on um YouTube or your equivalent that is a brne brown video on empathy it's about four minutes long and I highly recommend that you watch that particular video here's the punchline of the video if you have not seen it basically the video talks about empathy as the understanding that we are neurological containers that I have neurons and you have the same neurons and that what connects us is our acknowledgment of a human emotion in another person and that that empathy is not agreeing with someone but that empathy is simply stating I'm a human you're a

human I see you're having a human experience of emotion so it's not I know your feelings it's not um oh I've been betrayed before or it's just if you're seeing betrayal going on oh I see it I see the Betrayal betrayal is so painful that's a statement of empathy and as bernee brown talks about it's a courageous statement because in order to see it in someone else you probably have to have a little neurological feedback that's letting you know um what that feels like empathy is um the key I would say to to resolving cases

especially in the United States where the the justice system and the court system um unlike civil law countries it can last a long time and it people are completely worn down I mean every country is different I I know civil law systems it can last a long time as well but everybody's completely worn down and they feel as if the system itself has dehumanized them so that simple statement of putting human Humanity back in often could be the impass breaker because they have likely not heard it from anyone in the system or their attorney for

a while so that statement of empathy is critical I focus on um teaching empathy to lawyers and to law students and that's usually not something that is a preferred technique usually it's something that people prevent um well I'll say this it's not part of legal culture and so since it's not part of the culture it can be discrediting to The Advocates when they're using that language it can be discrediting to the mediator um in their own mind to be using that language because we have been trained and paid to be able to be nimble in

a different system and I am one of them the first time that I used an emotional word intermediation my heart was beating it was a discrimination case and um someone was sent in a Christmas card that had disparaging remarks because they were not Christian and it was in a workplace and it turned into a um equal employment case and saying to the plaintiff or the petitioner um a statement about their dignity being challenged I remember my heart was beating um and that was probably 20 years ago my heart would not beat at all right now

I be easily say such a thing but it is um it is a moment that is sometimes difficult so I'm going to give you a format for that it's a what I call a stealth form of empathy and this was introduced to me um by a professor named Mark goulston um he's written a book called talking to Crazy um which is kind of a funny title of a book um it's a catchy title he worked with suicidality for years and so this particular technique of self empathy is a technique that was used in situations of

suicidality and I have adapted it and taught it to the clinicians in my clinic and I found it Inc incredibly effective for two reasons one there's a formula and for those of us that are from disciplines that don't necessarily privilege emotional vocabulary it's helpful to have a fill in the blank statement so that's one reason number two um it normalizes emotion before it invites reflection and that's particularly effective and number three I've never had it go wrong when I've used this format it always has worked uh or treated me well it doesn't mean I've settled

all of those cases but I haven't had someone say what are you saying that doesn't make any sense I've always had the party um open up more so this is the stealth form of empathy most people in your situation so do you see the normalization effect of this most people in your situation then feel then you choose three or four words the last word is always exhausted okay and the the concept behind that is that people are always or people not always I don't know but people are tired when they're in Conflict they're tired when

they're involved in litigation and it's the safe emotional word so the last one is always exhausted then you choose two or three other words and those two or three other words might be words that you're seeing words that you're guessing or maybe even a word you're not seeing but that you think most people would feel because sometimes there's a facade where you're seeing nothing and yet you know if someone has lost their job lost their house lost their child that there's a certain emotional narrative that goes with that as well and so you might interject

one of those words too I do that with more caution so most people in your situation and then in the in your situ may be that generalized statement or you can fill in the blank but if you fill in the blank you do it neutrally let me give you an example if this were and I'm just going to choose an example of recent um a lawsuit around a engagement ring even though the law seems to be clear in the US we still have a number of lawsuits around engagement rings most people now you could say

who have been left at the altar or you could say who are breaking up or who are um but do you see both of those have different impacts most people left at the altar versus most people who are going through a breakup feel right um so that's where you choose very carefully that in your situation you fill in the the rest of those words and then you ENT with exhausted is it one of those most people in your situation feel betrayed scared anxious or exhausted is it one of those um usually my experience is this

is the ultimate efficiency you open it up but that scoped language means that people then speak on it for a minute or two and then it gets closed back up emotion is the ultimate efficiency the final um concept that I want to talk about is that most people misunderstand their value W which is being someone not in the conflict and I'll just say a couple of words about that simply um many new mediators try to overdo their job um which means they think they have to solve the problem they work too hard and they misunderstand

the value of just being a listener they forget to include silence they forget to include a reflective presence they forget to ask questions they tell instead of ask and there's something about I'm just all I am here is a person of service and this is how I think of my job is it's number one service work as a mediator if I'm helping people resolve conflicts that is service work um it is not my conflict and everyone knows that and by virtue of my presence I have added value okay um I fear I've gone on too

long I want to thank you in advance for your kind attention and thank you for the kind invitation to come and speak to such an esteemed group um I will pause and let my conveners tell me um what's next thank you so much well good morning first of all I thank you and congratulate you for talk my question to you Professor blondel is the following here in Brazil the judge leading the mediation in a Judicial hearing can be the same judge that will judge the case at the end what is your opinion about this situation

about this pecularity that we have to work as a mediator the or you know during the case and the same judge judge the case at the end it's a fascinating concept and it is something that happens in the US as well the typical pattern in the US is that the judge who mediates the case is not the same judge who then would be the bench officer and there's a firewall between the two firewall meaning um confidential that is considered um best practice however at lower courts at many different types of Courts you see judges in

informal settlement prior essentially in status conferences prior to going to the bench doing the same thing so even though the formal process of mediation you wouldn't see that typically you do see this happening I in the Court Annex mediation settings that I'm in will often see a judge doing it from the bench even not even in Chambers as a more informal moment um I've traveled to Australia where I worked with an administrative Tribunal and they had the same format where the same judge that was assigned to be the bench officer or the FactFinder also was

um the um mediator my comment on this in terms of practice skills first I'll give a philosophical comment then I'll talk about practice skills philosophically I cannot fault anyone ever trying to resolve a conflict you know I I am in support of any human being on the planet trying to resolve a conflict prior I do understand um in our Judicial System some of the reason we have the best practice and the bifurcation of the roles and in systems that have the resources to do that and the setup there is some advantage to it because then

the bench officer is likely and this is where I'm transitioning into talking about the practice skills the bench officer is likely able to be more evaluative and directive if they are not the bench officer that's actually going to be hearing the case in our system at least so it allows that bench officer to flex their judicial muscles a bit um and have a more evaluative and directive approach and honestly say you know there's a firewall between us um I don't know how this judge will decide this case this is how I would decide this case

and we're a common law country so there is an acceptance that there might be more variance in decision-making right so um having said that I do think that typically and I'd be very interested this is such an interesting question to me and I'm very much more interested in your answer than mine but I do think that the bench officer um is likely um more effective as a facilitative mediator um because well part of it is I'm thinking they they may fear appeal even though is a protected that the process of mediation is protected by confidentiality

if they um let a little bit of their judicial decision- making known during that process by being more evaluative and directive they might expose themselves to um giving Council a um a primer a lesson on how to do a more effective appeal so my guess is that it would be more effective to be more facilitative in contexts like that um but I'm very curious about your own comment and you can choose now to to to share that with me or maybe at some other later date I can find out more than you Professor Blondell let

me again mention how happy I am that you could take part in this this module here organized by the court here in Parana I believe there are other questions so I will open the floor to my colleagues and later we can talk more about that Professor thank you thank you judge Baron uh so I yes we cannot Professor Stan can hear me so uh let me allow judge elazer can you make your can you make your question who's in the Portuguese Channel cannot hear Prof Dr Fernando I would like to make a connection to uh

the previous question to Dr lal's question and I would like to propose for your discussion has to do with the approach that was pretty interesting to me regarding the Silence of the mediator I mean that moment in which the mediator relies on silence to perform a good mediation this time I mean this delay between uh I mean between the this in the discussion being made and also the long question when mediator um makes too long of uh questions and uh expositions what Professor uh uh Professor Stephanie blondel said was very interesting when she said that

this is something that we discuss in our programs and it's also one of the seven items she so clearly discusses I mean when the mediator makes a long question dialoguing with himself or herself as if he was talking to himself during his act during his attempt of conil at his attempt at conciliation and um resolution so taking this Advantage what is the rec recommendation when we have this mediation in the sense that the judge that takes part uh in the mediation of this Collective dispute and if this mediation is unsuccessful should the judge um remove

himself from his case should he uh say that he's not uh fair enough and he should resign from the case and he should remove himself from the or resign from the case this is not a legal imposition this is a recommendation that the judge doesn't Pride over that case due to confidentiality issues the questions with each party may have information that later can influence in the judging of the case I would like to express to present this approach I hope I was clear this is a topic for discussion if I can and Fernando is is

listening to us and also maybe Fernando can add something to my my question I'm happy to comment I don't know if for heard the invitation but yes I've heard but you can't comment please go ahead okay I can comment um and then so first of all so two different things that I heard um and and one is about the recusal of Judges the other about silence so I'll just say in a few words about silence and I'm glad you studied this that you know really no one says anything negative after a silence at least in

the kind of us Parliament you wouldn't pause and then escalate if you're pausing you're likely to deescalate so if you see those pauses you don't want to jump in as the mediator you want to allow the silence because the reflection comes after the silence and I have been in many a mediation where um I could tell stories now I won't um but where that silence beget the resolution led to the resolution in terms of the recusal um there's in the way that the ethical rules are written in the US they cover not only conflict of

interest the actual conflict of interest that might be created and that's the principle that I would use here um to apply to this scenario I think that you were setting out and thank you so much for that question um it's not only actual conflict of interest it's perceived conflict of interest and both are important many of the ethical rules not only for mediators but other professions all Al look at both this concept of actual conflict of interest as well as perceived and actual would be of course if I had a case and it was Bank

of America and I was on the board of directors for Bank of America and receiving a fee for that particular role that I had I would have an actual conflict of interest the perceived conflict of interest when you're talking about Court Annex mediation is tricky right because the perception is such that anyone could see that as a conflict of interest so they have to understand the system and that you are utilizing your resources of the bench from this place in order to you know um serve the overall system the institution most of us I'm going

to say this in my career there have been very few cases I felt like I'm just not neutral I mean in neutrality or impartiality or multi partiality whatever it is it's a muscle it's a muscle we develop and I do feel like in most cases I'm able to separate my distaste for a particular perspective and my ability to serve neutrally like I don't have to feel neutrally I just have to behave neutrally right they are two different things m 1 and if I had to feel neutrally well then I wouldn't be equipped for any case

um we get to have our own inner world as mediators and we get to have preferences as well that's not what neutrality or impartiality is so there are very few cases I would recuse myself from based on my own ability to serve however there are some cases where I see that the party's perception is such that the barrier is too much to overcome and in cases like that I might recuse myself um and recuse is a word that you know um I guess I would say for for me since I'm not a bench officer withdraw

from the case um I hope that was responsive to the question I'm not sure that it was but you'll let me know okay I'm seeing that you have answered that was right on right there very precise well first I will say so I've run two different employment mediation programs one for a city government and one for a county that was a tri Tri count area so I have a strong opinion about this um and it may be somewhat cultural there is something in the US where the for lack of better word intimacy of one-on-one negotiation

is where deals get done when you have a ton of people in the room deals tend not to get done so that need for caucus is strong in employment mediation so that people have that intimacy to say what they need to say and this is true in the labor world as well where I I ran both a Labor Management as well as employment labor we would use to refer to the collective bargaining agreement and unionized environments employment discrimination cases that's the distinction we make so the caucus is critical um to be able to be effective

however you know that in many of these cases they may be terminating the employment relationship or they may be continuing the employment relationship and in those cases where tomorrow the mediator leaves and the employer and employee are right back in their scenario it's critical to also have open session some of that is almost ritualized it's almost staged it's almost theater you might even plan how you're going to do it in caucus but it's an important moment to normalize the fact that there had been either litigation or some other strife and how are we going to

behave what will be the Rules of Engagement when we engage back in to the relation reltionship post settlement so the that they both exist is very important I think in my context in employment now the specific question that you asked was about um how long or the transition um I think every case that's different for me I do I think that um you know certainly we always end in a caucus but um the there there's a myth I think it's a myth in mediation that there needs to be symmetry as long as the parties understand

why you're going back and forth between the two the two processes there does not in my opinion need to be symmetry it can be quite halfhazard in fact so um that is something that I think is very much dependent on the case but the the premise and the underlying assumption is that both would happen Okay thank you and we have one chance um thank you judge for your question and at this point my experience is as a scholar and not as a practitioner so I will be learning that I will say that we are we

are in the thick of it as professors and so many of our professors have actually said okay use AI um to write the best paper possible and that they have eliminated the tension by doing that many mediators I know are currently using the skill set um in their mediations their Zoom mediations um and to assist the administration of their practice we certainly have seen it used in large scale systems where there are repeated disputes like that of eBay or Amazon or something like that um my own particular experience is limited so I've been studying and

fascinated at the um potential I you know I I said I I'm an older in life mom and I have a six-year-old and I often said I don't know if my daughter's GNA learn how to drive a car and um you know she she will definitely learn how to drive a car in the United States our legislative system is not going to allow self-driven cars um to be it uh pervasive within the next 10 years that's not going to happen however will she ever learn to write a paper I don't know okay thank you thank

you so much so let me check with the judges if they want to uh have the final greetings well I would like can tell you that it's no surprise at all how important this lessons that you gave us were because I knew beforehand we would listen to you and would be a great moment of learning a great source of learning and so let me tell you that effectively the the way and the approach that you brought to us always helps us always contributes so much to our program and Dr Fernando I hope we can listen

to Professor blondel in other opportunity so we can deepen this concept she's so well put and she's so such a friendly nice person so caring and thank you for this wonderful presentation she conar interes with Lessons Learned thank you very much I would like to congratulate you Professor blondel it's we're happy to welcome you here at the Parana Regional labor