by jcooper131 | Sep 6, 2014 | Houston Mediation and Arbitration
On a website dealing primarily with mediation and its many facets a contributing writer suggested that it was perhaps time for mediators to adopt a version of the Hippocratic Oath. The writer includes a brief summary presumably distilled from those who favor such an oath as well as a brief summary from those who presumably oppose such a formal process.
The article poses the question to provoke a discussion among the readers of the articles posted on this website. If one were to land on the website and read the article out of curiosity their initial reaction might be something on the order of “of course mediators should swear an oath, etc., etc. Yet that conclusion, while normal, would rest on a shaky foundation.
What is the Hippocratic Oath? It is an ancient oath that physicians and physician assistants swear to uphold. Its foundational principle is first and foremost Do No Harm. There are a series of covenants within the oath, and they are all predicated on the above stated principle. The oath exists in its original form as well as in more modern language, and its original purpose was to separate the trained healers from the charlatans. And that remains its principal purpose today.
So what is the underlying proposition of the author of this article? I found none in the article posted on the website. My experience tells me that a hypothesis or proposition is based on observed failures that affect adversely some desired outcome, and I do not see this here.
I am both an arbitrator and a mediator and I believe in conforming to and complying with the ethical standards of my profession. There is a written code of ethics for arbitrators and for mediators, and I work hard to adhere to those standards. Many of the arbitrators and mediators I worked with and those whose work I know are equally committed. The code of ethics to which mediator subscribe is a good one in that it focuses the practitioner on his/her duties and responsibilities. Its focus is on the behavior of the mediator.
My objection to an oath is three fold. One, oaths are administered to people who are placed in a position of public trust where they are called on to act on behalf of the public. Examples of this are elected officials, officials appointed to sensitive positions, and other similar criteria. A second objection stems from the fact that the imposition of oaths has historically been a prelude to licensing, and licensing was widely used in many states as a means of limiting competition. The third reason while separate is somewhat related to the second in that oath taking can lead to creating standards and processes that conflict with the laws and customs of individual states, and which again can lead to a process that limits competition and flow of ideas, tools, and techniques; which are the life blood of what we do as mediators.
Mediators do need to be qualified and, from what I have observed, the certification processes that exist in the various states are up to the task of making sure that practitioners have the training and tools necessary for the work they do.
by jcooper131 | Aug 20, 2014 | Houston Mediation and Arbitration
I am in the conflict resolution business and every day I open the newspaper or turn on the television, and see many examples both large and small demonstrating how unskilled we are in diffusing conflict in a constructive manner. As a mediator, a conflict resolution specialist, if you will, I write about conflict here and in my monthly newsletter.
Whether it is played out on the national stage or in your local community, what is plain to see is that people often talk about resolving issues peacefully, but they are poorly equipped to diffuse a conflict and move to the next phase. One thing is absolutely certain; conflicts are not resolved on the picket lines or in the streets.
We are a litigious society, and there are many reasons how that came about, but one of the more enduring myths is the idea that lawsuits solve problems; that they are a way of solving conflict. And this could not be further from the truth. This is a costly time consuming way of resolving the underlying symptoms of a dispute, but it does not mitigate or eliminate the conflict. It is simply a way of managing or controlling it at the edges.
I also write about ethics as ethical behavior is integral to successfully negotiating disputes both on the part of the mediator and those doing the actual negotiating. I believe strongly that ethical behavior requires discipline and practice. This requires that institutions, companies, and even individuals have a method or process for understanding and carrying out their activities in an ethical manner. One of the reasons that many conflict resolution efforts fail is that one or more of the individuals is not fully invested in the process, and holds back or disguises their true motives.
by jcooper131 | Jul 18, 2014 | Houston Mediation and Arbitration
Whistleblowing is much in the news these days. However, the reports showing up in the newspapers and on television are not the typical whistleblowing stories. For many years the reports about whistleblowers revolved around misconduct by companies. Those reports not only disclosed serious misconduct by companies, they also showed that the whistleblowers often suffered retaliation within the companies they worked for. As a result of this the laws regarding whistleblowing were strengthened to better protect those who reported wrongdoing by an employer. The dictionary states in straight forward language that whistleblowing involves the disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrong doing.
Under legislation now in effect, companies and government agencies (local, state, and federal) must have in place policies and procedures that establish a process independent of the chain of command where an employee can communicate their concern to an individual or group of individuals who have the authority to keep the whistleblower’s identity a secret, and to investigate the allegation(s).
It is ironic therefore to see an entire series of whistleblowing reports coming out of multiple federal government departments. These reports reflect major failings within multiple departments. The failings of these agencies go beyond abuse of authority and the total scope of these abuses is the subject of ongoing debate and will be investigated for years to come. What is striking about these numerous events being reported is the frequency and severity of retaliation against the whistleblower. Given the depth and the details being reported there is little doubt that the retaliation is real.
So now there are a series of events where wrongdoing is being reported and those reporting the wrongdoing are being punished, and those doing the retaliating are not being held accountable. This is the most disquieting fact in the morass of ongoing investigations.
In the business world great progress has been made in making the corporate structure more responsive to errors and mistakes whether they are rooted in carelessness or misconduct. It would be disappointing if all of this progress were to be compromised by the cavalier behavior of government employees who feel free in the current environment to behave in an arbitrary and capricious manner.
by jcooper131 | Jun 2, 2014 | Houston Mediation and Arbitration
A recent article discussed in Mediate.com focused on the notion of “persuasion”, and whether it should be encouraged or discouraged in the course of mediation. The article rightly pointed out that many practitioners see the use of persuasion as a negative that can seriously compromise a mediator’s neutrality. The focus of the article centered on its impact within different mediation models (Facilitative vs. Evaluative).
The catalyst for much of what was discussed in this article comes out of a study by two university professors, Douglas Frenkel and James Stark, and entitled Changing Minds: The Work of Mediators and Empirical Studies of Persuasion. The study explored the significant amount of empirical data produced by various social science studies on the impact of persuasion in disputes. To a large degree that article was aimed at practitioners and at those interested in the subject as an area of study.
I found the article on the above referenced website to be thought provoking and I read the study as well. I won’t dwell on the guts of the study because as a practitioner I do not want to get lost in the forest. That said I do not find the notion of persuasion to be a verboten topic. More to the point, I think many mediators find the notion uncomfortable because they do not really understand what lies at the root of persuasion.
Before I get to this root let me state clearly that I do not attempt to persuaded one side or the other to adopt a solution, course of action, or any specific outcome. Yet, persuasion is the root of many successful outcomes. So what do I mean by this? Well, the goal of the mediator is to get the warring parties to examine alternatives paths that will yield a mutually acceptable outcome.
The parties in conflict have to be influenced or urged to stop defending their position/issues, and coaxed into explaining their point of view, and at the same time get each side to listen to other’s point of view. Explanations lead to discussion and discussion leads to the implicit acceptance by both sides that the other side has a point of view. It’s not important at the beginning that either side accepts the other’s point of view as being valid, but once these points of view are fleshed out by the parties, the process of searching for a way forward becomes possible.
It is the process of explaining instead of defending where the parties themselves use the tools of persuasion to find the outcomes they need. It is the mediator’s role to understand this goal and to construct his or her questions in a manner that moves the dialogue away from attack and defend towards a discussion. Even in mediation that does not succeed, which sometimes happens, the tools of persuasion give the parties a chance to understand the other side more clearly and that is not a bad thing.
by jcooper131 | Apr 14, 2014 | Houston Mediation and Arbitration
The title of my monthly newsletter is Putting It in Context. In the letter I look at conflict, its causes, and the affect it has on companies, organizations, and individuals. The letter looks at the tools and techniques for dealing with conflict, and how I use them in my work. I write about ethics as this is a core principle for effective conflict resolution. My bi-weekly blog also touches on these concepts in that I target a particular issue to give my readers potential ideas that they can apply in their own particular circumstances.
I found myself thinking about absolutes while re-reading a book by George F. Keenan. He was a diplomat in an era when diplomacy required men to have substance – in their education, their training, their intellect. He wrote books and articles that ultimately defined for decades how the United States would use the doctrine of Containment in its relationship toward the Soviet Union. In his book American Diplomacy, several of the concepts he discussed have application outside of politics to this day. In discussing the concept of Containment, he argued persuasively against the pursuit of absolutes – absolute amity, harmony, security. The foundation of his argument was that in trying to achieve laudable goals you can go too far, get the opposite result and harm the general good of the nation.
This does have a direct bearing on many of the conflicts that occur in companies and organizations. Pursuing desirable goals and objectives can go too far, causing a backlash within a company’s structure damaging the culture, the cohesion of an organization, and potentially the quality and timeliness of the products and services being delivered. In his book he uses more classical language, but the heart of his argument was that going too far in pursuit of an objective is often the product of ego. Anyone who has spent any amount of time in a corporate environment knows that people in positions of authority who are ego driven are at the heart of most conflicts.
One of the things that I stress when helping parties in dispute is the important of identifying and separating the issues and making the mediation about the issues and not the people. Do you have a question? Contact me at jerry_cooper@att.net, or at 832-452-8537.
by jcooper131 | Mar 15, 2014 | Houston Mediation and Arbitration
The Danger of Making Assumptions
In business, as in life, we all make assumptions about people and events, and we do this because we believe the assumptions to be true. We take it personally when our assumptions are shown to be false.
We often make assumptions to avoid the appearance of being ignorant or to avoid showing a lack of understanding. People often equate asking questions with weakness, and will make assumptions based on what they heard. We then proceed to defend them and go out of our way to prove the other person wrong.
Mr. Miguel Ruiz talks about the consequences and suffering that comes from this behavior. In his book The Four Agreements he makes an eloquent argument that making assumptions about events and people can lead to a complete failure of understanding. This can be both destructive and very costly to a business relationship.
If, having entered into a business relationship with another company or individual, you make the assumption that the other party sees the agreement the same way you do, and in the course of executing the specifics of the agreement, you discover that the other party does not see the details of the agreement in the same way, this inevitably produces conflict. The conflict amplifies the perceived differences and makes it harder to reach accommodation, particularly when the conflict is not addressed quickly or constructively. Both parties begin to spend time and resources justifying their points of view and defending them to the other party trying, as stated earlier, to prove the opposing point of view to be wrong.
Don Miguel Ruiz makes the argument that if words and phrases are offered with impeccable clarity, assumptions and misunderstandings are defeated, and conflict cannot rise up or be sustained. There is a powerful truth in his hypothesis because successful leaders learn early that assumptions are defeated at the outset by asking questions. They learn at their own risk that failing to ask questions can be fatal to the effective execution of an agreement and that asking questions both improves communications, and improves the clarity of what is communicated.
