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Mediation Tip: How to turn a negative experience into a positive one - just need a little mind-shift

Mediation Tip: How to turn a negative experience into a positive one- just need a little mind-shift. Let's start with basics for those unfamiliar with this process.

A mediation is a process where people on opposite sides of a dispute, controversy, or legal case, come to a private meeting to try and achieve resolution. It is a place where everyone has the ability to tell their side, and have a neutral third party, the mediator, listen to them without judgment. I often refer to each side's room as their "safe zone" where they can freely tell their story, their side of the dispute. A mediator is not there to judge or make a ruling or conclusion. However, the mediator usually has a lot of experience in the subject matter of the dispute (and/or at least in resolving disputes), and in doing their job, does share their views, opinions and concerns about each sides' case and risk factors. And this is the part of the process that becomes difficult for the parties, and their lawyers.

Here is a truism few will disagree with: No matter how confident and strong a person is, most people do not like hearing criticism, nor anything negative about themselves or their conduct. They come to mediation because of a dispute, and most disputes are two-sided, which means there will be differing views of the situation. In most instances, something happened on both ends that led to the dispute, not necessarily actionable or bad conduct, but that will certainly be each side’s view of the other’s conduct.

The mediator may not need to share the "negative" input about a side, if it is totally irrelevant; however if it is something that a jury, Judge or Arbitrator might use or rely upon, it is likely important to share that information. Hopefully that sharing of information, the good, bad and ugly, ultimately results in a settlement or other type of resolution.

There are some positive things that can come out of the negative fact-sharing.

First, for someone who may have a chronic habit or conduct in the workplace, it may help them avoid repeating it, regardless of fault. One example of this involves a woman who was unable to write an email without tearing apart the recipient- even her own boss! When she made a co-worker cry, and her boss received one more "toxic" email from her, she was terminated. She had a very difficult time accepting or agreeing that there was "anything wrong" with her emails. She was adamant that she was terminated because her boss discriminated against her. There was some evidence about the possibility of bias by the company, including "bad timing", that placed the company at risk of an adverse verdict. However, her emails gave the employer a potential ground for her termination, because her emails had upset her co-workers and managers alike.

We discussed the importance of honesty and truthfulness, coupling it with the value of tempering the negative tone that accompanied her "truth-telling". It took the full day before the plaintiff could even see what I was seeing in her emails, and finally agreed to different ways to communicate with others. She also realized that she would be taking more control over her work-life.

One excellent book I can recommend for anyone wishing to change a habit or practice, is "The Power of Habit" by Charles Duhigg. It is phenomenal and takes you through each of the steps of changing a habit, and sticking with it.

Another example of positive change possibility arises in situations where parties have been so badly beaten down, either through their own lives, or through their work, or family life, that they come to mediation with a feeling of despair, hopelessness, and failure. I have mediated with people who were homeless, sleeping and living in their cars, or hopping on and off sofas of friends or acquaintances; Others have been unable to find a job for long periods of unemployment. Some are seeing mental health professionals and taking medications for anxiety, depression, sleep, blood pressure, etc.. I have witnessed people come at mediation who feel that their current situation will never improve. Some defendants are small companies, "mom and pop" sized operations, perhaps operating on a shoestring budget, facing monetary demands that could place them in bankruptcy.

What they all share in common is despair and pain.

In some of these circumstances, when people are open to them, they can use time for reflection on ways to move forward positively. Sometimes, it helps to use the circumstances of what led to the dispute, as a jumping off point for positive change. E.g., an employer or defendant may benefit from some policy changes, or some training by their lawyer or other professional in workplace practices. They are motivated to not be in this situation again. For an employee, or a business owner, they may benefit from some shifts or changes in their lives. Evaluating whether their current situation supports them taking care of themselves, or being able to achieve goals. This may take the form of starting or getting back into a regular exercise routine, whether it means going to a gym, or walking out the door to a nearby park or scenic neighborhood, or even just walking to a local nearby market. It may mean taking better care of their nutrition, making time for mindfulness exercises such as meditation. More often than not, people who are very stressed or anxious, are giving themselves and their time to others, and little for their own self-care. For someone who needs therapy but cannot afford it, there are low cost and no-cost centers and schools where talented people are studying or interning under supervision, and can provide some help. Perhaps becoming more aware of what someone personally needs, can help to take the first steps, however small, to get started on a positive path.

When someone is unemployed and cannot find work, we have discussed doing charitable work, which keeps them busy during the job search, they can learn a new skillset, perhaps keep continuity in their resume with the volunteer work, instead of a year of blank space. Plus, the added benefit of doing something for another person or organization, will create a more happy mindset for the volunteer, who sometimes can see they are helping someone more (or equally) disadvantaged, and feel positive about the activity. Abundant studies prove that doing for others, gets our own head out of ourself, and gives people a purpose, which is often the missing ingredient in someone’s well-being during these stressful times.

Some options for charitable work or volunteering include visiting a shelter. This can be a dog or cat shelter; one that rescues and heals injured sea lions (e.g. Pacific Marine Mammal Center in Laguna Beach- some of my former clients who have been ill, or depressed, visited and fell in love with the sea lions; one signed on to volunteer); Volunteering at a hospital (Children’s or adult), or a senior center; Getting and sending toys to disadvantaged children; Working at a food bank or homeless shelter. The list is endless.

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