Whether you agreed with Ronald Reagan’s politics or not, most would agree he was a “great communicator.”  He was, of course, trained to deliver words. One of his first jobs was as an announcer for WHO in Des Moines, Iowa…and the rest was oratorical history.  Many of us remember the great speeches- “Mr.  Gorbachev tear down this wall.” Or his speech following the Challenger Disaster. What was special about his delivery was not his ability to read a teleprompter or to give a small nod at the right moment, but the words he used. His speeches brought his ideas to life by telling stories and using word pictures. Of course, he had a great team of speech writers who knitted the words and phrases into a successful speech.

Several years ago, I read a book by Frank Luntz, one of those speech writers. In Words that Work, Luntz shares the secrets to great communication.  

“It’s not what you say; it’s what people hear. You can have the best message in the world, but the person on the receiving end will always understand it through the prism of their own emotions, preconceptions, prejudices, and preexisting beliefs.”

Luntz also shares what he thinks is one of the most powerful tools in political communication. That is, to get your audience to visualize… imagine. Only when people can see a better future will they consider a change.

In mediation, I often use the word imagine. When parties are stuck in the past or cannot move the mediation process forward, I ask them, “What would life be like if you had this conflict behind you?” That often causes a pause and a reflection on why they are there. It is not to convince me who is right or wrong. I am not a judge. It is not to convince the other party who is right. Mediation is about finding common ground, albeit imperfect, and getting on with your life without the stress and emotion of argument and disagreement.  

Imagining a different future also provides the basis for setting goals that will help you get there. Those goals become the guardrails for mediation. It helps parties decide what an acceptable outcome is and what is not. What they can offer and what are “must-haves.” In settling conflicts, whether in a divorce or a contract matter, focusing on the future is a powerful motivator and will help produce a successful outcome for both parties. But that future first needs to be defined. That is where taking the time to “imagine” a better life is a powerful tool.

“Logic will get you from point A to B. Imagination will take you everywhere.”

Albert Einstein

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

 

Thanksgiving is always a very special holiday for us. Last fall, as in the past, almost the entire family gathered for turkey and all the traditional dishes. We were blessed with the attendance of six of our seven grandchildren…all 13 and younger. We sat in the kitchen as the turkey roasted when the grandkids arrived with scissors, colored pencils, and paper. They made 12 small pumpkins- one for each place around the dinner table. When we finally sat down to eat, Anna announced that on the reverse of each paper pumpkin was a message that we all should, in turn, read out loud.  They ranged from “you are braver than you think” to “never give up.”  When it came to my turn, I read, “Never trip on what is behind you.” I had been struggling with the topic for this column, but there it was offered by our grandchildren on the back of a paper pumpkin!

My task as a mediator is to help parties in conflict find common ground through a confidential conversation.  Each party has the opportunity to share its position. The mediator is not a judge. We do not decide the outcome or prescribe a settlement. The beauty of mediation is that power is vested in the parties themselves. They are in complete control of the outcome, not a judge or a jury. The parties also have considerable flexibility in designing the conditions of the settlement. A judge or jury can only decide on a very narrow question with a very narrow answer.  For example, in a case where money is owed, the judge may decide that, in fact, it is due to the other party. The challenge remains for the owed party to collect. In mediation, a payment plan that is acceptable to both can be created. 

As I guide the mediation conversation, I often recognize that the parties are stuck in the past. In all fairness, reviewing the circumstances that brought them to mediation is an important part of the process, but it also can be a trap. The best way to design a helpful settlement is to look forward and imagine how the situation (or life) would be different once the issue is settled. In other words, “Never trip on what is behind you.” My task as a mediator is to allow some time to review the circumstances that brought the parties to this point but then move the conversation toward finding a way forward. That settlement will not be perfect for either party, but it will provide closure and allow both to move on with their lives.  That is something for which everybody can be thankful.

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

 

After watching what happened in Ft. Myers Beach, Florida, I was reminded that living on the Eastern Shore can put us on target for a hurricane. So we decided to install a generator at our home in Easton. It was not hard to arrange. When the crew came to install the equipment, one of the steps in the process was to simulate an outage. As they shut down the power to the house, the transfer switch offered a loud “snap” and automatically turned on the generator, restoring electricity. The house moved on with its business of washing, heating, and powering my laptop.

In a successful mediation, there is what I call a “magic moment” when the thinking of at least one of the parties changes. They stop thinking about the past and start focusing on the future. They stop being angry and consider the other side’s point of view.  Like when the transfer switch is thrown by the lack of power reenergizing the house, throwing the switch in your thinking can energize the parties to move forward to find an acceptable settlement.  What I have also noticed is that once one party starts looking at the conflict differently, the other party will often follow. They will also start thinking differently about the conflict. This is what mediators try to encourage, a conversation about resolving conflict, not about getting even or punishing the other party.

Here is an example. Not long ago, I was asked to mediate a landlord-tenant dispute. The lease had expired, and the landlord wanted the use the property for another purpose, not as a rental. However, the tenant would not leave the property and continued to pay rent. Even though they both had a good relationship over the years, the landlord was focused on having the tenant leave the property. The tenant wanted to stay. There are legal remedies for this situation, but they decided to try mediation.

In mediation, both parties presented their positions to each other. Remember, a mediator is not a judge and is neutral in the dispute. After some discussion, it became clear that the tenant was “holding over” for one simple reason. They had no place to go.  Almost instantly, the landlord thought differently about the challenge. The solution was not to force the tenant to leave but to ensure they had a safe and reasonable place to relocate. Once that “switch” was thrown, the landlord’s thinking changed from confrontation to working together to find another place for the tenant to live. It turned out the landlord knew of another property that would soon become available. The conflict was resolved. 

How you think about things in mediation is key to a successful settlement. Moving from confrontation to problem-solving is a critical step. Once you “throw that switch” in your thinking, the likelihood of a positive outcome increases dramatically. 

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

 

I have received several questions about mediation referred by the Maryland Courts. Let me update an earlier column on the subject. For many of us, what we know about the court system is based on watching Perry Mason or Judge Judy. It is confusing, adversarial, and uses terms that are obtuse and dense. The good news is that the court system has evolved over the years and has become much more “user-friendly.” Mediation is one program that has moved Maryland Courts in that direction. 

In Maryland, there are two courts for dispute resolution, the District and the Circuit Courts. Most of us experience the court system through the District Court. Cases include traffic violations, landlord-tenant disputes, and small claims. Each county, and the City of Baltimore, has at least one District Court location. There are no jury trials in District Court. Cases are argued before a judge, and the judge makes the ruling. 

Circuit Courts generally handle more serious criminal and major civil cases, including divorce, custody, and child support. Each County and the City of Baltimore has a Circuit Court. Cases generally involve juries but sometimes are heard only by a judge.

Going to court over a dispute is a right we all have.  It is why the court system exists. However, that choice can be lengthy and expensive. During the COVID outbreak, the courts were closed, adding months to get a trial date. Mediation can greatly reduce the time to get to a resolution and at much less cost to the parties in the dispute.

In recent years, both courts have embraced mediation for this reason. The administrative process in each court is somewhat different. The District Court has two Alternative Dispute Resolution (Mediation) programs. The first is a pretrial screening program. When a case is filed, you can check a box indicating whether you wish to consider mediation. This will trigger a review by the ADR Office. If determined appropriate for mediation, the parties will be contacted and offered that option. By the way, most cases are reviewed by the ADR Office to determine if mediation might be helpful.  If parties agree, then mediation will be remote, using Zoom.  The other program is the Day of Trial program.  This allows the judge to offer mediation to cases on their docket on the day of trial. If parties agree, they immediately go into a face-to-face mediation session. The Talbot County District Court just reintroduced Day of Trial mediation.  In either option, if a settlement is not reached, the parties can still appear in court, and the judge will decide the outcome. Using mediation does not remove any rights to a trial. In either District Court program, mediation is free. 

Circuit Courts have a similar pre-trial screening program. What is different, however, is that based on the screening, the Circuit Court can order parties to attend mediation with an assigned mediator. Under certain circumstances, you can request not to mediate. The cost for mediation in these cases can vary by Circuit Court, usually in the range of $200-250 per hour, split evenly between parties. 

By offering mediation, the court gives the parties a powerful and flexible option.  “We trust you to sort out this dispute on terms you both agree and on terms that can be much more flexible than the court can offer.”  The Court gives you control over the outcome, not a judge or jury.  There is not much to lose in agreeing to mediation.

To learn more about the Maryland Court system, go to https://mdcourts.gov/courts/about. 

Steve Forrer, the former dean and vice-chancellor of the University of Maryland Global Campus is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

The other day I decided to treat myself to a handcrafted drink at Starbucks. As I approached the store, I saw another customer approaching. There was no question in my mind that he was going to order 5 drinks for his coworkers. I picked up my pace… I was going to get there first. And I did. But then something came over me. I opened the door and held it open for my competition to enter first. I think he was stunned. Then, as we got to the counter, he suggested I order first, as he had several drinks to buy. I was stunned. There was a lesson there. 

Most mediations start with parties in a competitive mindset. No surprise there, as they are in mediation because of some disagreement, and their goal is to win something from the other party. The parties will state their positions and why they are right, and the other is wrong. Often expressed with emotion. 

Let’s say the financial value of the dispute is $2500. The first party is asking for that amount. Not unexpectedly, the other party says, “not one penny.”  The mediator’s job is to remind both parties that neither will likely get their full demand.  What the mediator is encouraging is that one party step up and make an offer to settle. That is what I call the “magic moment.” It communicates the willingness to compromise and have further discussion, and magically, emotion tends to evaporate.

One way to move the parties to compromise is to reframe the party’s needs. The $2500 demand may be based on some actual cost, but a component of that demand is likely driven by something else. Maybe one party felt they were disrespected, ignored, or treated unfairly.  By reframing the demand, it is often possible to understand the range of motivations driving the dispute and address them. Keep in mind that mediation allows considerable flexibility in structuring a settlement. In this case, the settlement might include an apology and a financial payment. 

Making the first offer requires taking a risk and a bit of strategy. If somebody does not make the first move, there is a deadlock, and time is wasted. The first offer, however, needs to be reasonable.  In our example, if the first mover wants to offer $100, they need to ask themselves what the reaction will be from the other party. You can guess it will probably be taken as an insult…back to square one. 

Mediation is a process. It requires both parties to understand all positions and then move to a give-and-take to create a compromise. The real magic moment is when both parties shake hands and leave the session ready to move on with their lives…and celebrate by treating themselves to a hand-crafted drink at Starbucks…or maybe Rise Up. 

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

 

Do You remember the conversation between the disoriented Alice and the mysterious Cheshire Cat in Lewis Carroll’s classic children’s tale, Alice in Wonderland? 

 “Would you tell me, please, which way I ought to go from here?” “That depends a good deal on where you want to get to,” said the Cat. “I don’t much care where–” said Alice. “Then it doesn’t matter which way you go,” said the Cat. “-so long as I get SOMEWHERE,” Alice added as an explanation. “Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.”

In almost every mediation I have conducted the first step is to get both parties to understand the features of the mediation process. It is voluntary. It is confidential. It is flexible.  My role is to lead a conversation among parties, resulting in a settlement acceptable to all. To be honest, sometimes guiding that conversation can feel like navigating Alice’s Wonderland. 

Early in the mediation, confusion, anger, and emotions often run high. No surprise, of course, as that is what conflict creates.  It is important to let the parties express their emotions. Only after that happens can the task of finding common ground begins. 

Finding that common ground begins by helping the parties discover their goals.  Why are they “really” in conflict and what is the impact conflict is having on them and their lives? Although not often expressed early in the conversation, “getting one with my life”, often becomes the goal upon which to focus. Focusing on a set of goals will move the mediation along. Unlike Alice, who wanders and wonders where to go, goal-oriented mediation can help the parties get to a better, although not perfect, place. 

Simply asking what your situation would be like if this issue was settled can move the needle. Dwelling on the past simply avoids thinking about the future and, more importantly, figuring out how to get there. Mediation can create the roadmap and the first steps in getting there. It is very powerful. The power of mediation is that it encourages creativity in finding common ground. 

Speaking of creativity you may recall my last column, “One Scoop or None.” Long story short, my grandkids wanted 2 scoops from the upscale local ice cream place in Easton. Cost being a concern, I explained that one scoop from this store tasted so good that it was worth 2 scoops from the place around the block. The option was one scoop or none. They took the one-scoop option. Story over. Well, not quite. The next day, a delegation approached me with the idea that they wanted to try the ice cream from the other, less expensive vendor…and of course, the ration would be 2 scoops following my earlier logic. Hoisted by my own petard!

Steve Forrer, the former dean, and vice-chancellor of the University of Maryland Global Campus is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediation.

 

Our grandkids are wonderful, but they are kids.  On a recent visit we took them to one of the “high end” ice cream stores in Easton. Translation – Pricey.  Since there were 7 of us, I made the prudent financial decision that one scoop would serve everybody well. Upon that restrictive announcement the reaction was, shall we say, a bit over the top. “Unfair! We always get 2 scoops.”  At that point I decided this was a “teaching moment.”  Either you accept the offer of one scoop or get no scoops at all. “Yes, but our other grandparents always get us 2 scoops!” I held firm. “One scoop of this ice cream tastes so good it is worth two from the average ice cream purveyor.” That intrigued them, and emotion was replaced with the promise of a better state. Reason prevailed, and it helped that the ice cream was really good.

This reminded me of several mediations I have recently conducted. By definition every mediation requires the parties to accept conditions that are not likely their first preference.  As a mediator to a conflict, my job is to guide a confidential conversation between parties helping them reach an agreement that is satisfactory to both, albeit not perfect for either. However, when one party starts with “They are not getting one red cent from me” the task can be a challenge. After initial emotion subsides there is an opportunity to understand the goals of each party…and there are often several. As they tell their version of the story hints will emerge as to the issues that need to be resolved.

Is it just about money or is it also about being treated unfairly in their view? Is an apology needed? Was it a matter of poor communication or unmet promises? As the settlement is crafted all these issues can be included.  One of the powers of mediation is that it can include a solution that is wide ranging, much more so than a narrow court judgement, for example. 

Often parties choose a position that is based on limited or poor information. What do you do if you do not have complete information?  You make it up, of course. That is natural, and we do it all the time. When we act on partial or inaccurate information, we make assumptions about the other parties’ motivation and position. The mediation conversation can help complete the information picture and make it more accurate. 

Once my grandkids had a more complete picture of the one scoop offer, they understood that it was a decision about quality not quantity. I know what you are thinking…they still wanted 2 scoops…and they probably did. However, they were please with the imperfect result and so was I.

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.

 

Driving by all the car dealerships on Rt 50 reminded me of the last time I bought a car. It was a grueling experience. I am sure you know what I am talking about.  It starts with a very friendly person helping you select the model and features. It then goes to the sticker shock stage. Then the ballet begins.  You start to leave. The salesperson follows and asks if you had a price in mind …and so it goes ending with “I will have to talk to my sales manager.”  Price is agreed and as you walk out the door you kick the dust thinking…” I should have held out for a lower price…the fact they accepted means I paid too much!”  Buyer’s regret is a fact in any negotiation. And the flip side is seller’s remorse.  It’s time to remember what my mother used to tell me, “Son, it’s not a perfect world…move on.”

The mediation process, is a form of negotiation.  Parties come to mediation with their own view of the problem, how it arose, and what the solution might be. Of course, if both parties saw things the same way, there would be no conflict. Mediation is a form of Alternative Dispute Resolution that works together with both parties to find a common solution. 

Opening statements in mediation tend to be adverse, accusatory, and demand compliance with the presenter’s point of view.  Naturally, these divergent positions prevent an agreement.  That’s why they need the help of a mediator. The goal of mediation is to craft a settlement that is not perfect, but acceptable, to both parties. A skilled mediator will confidentially guide the conversation. Part of that process is to uncover each party’s motivation. Often the issue that is presented is one of several, and maybe not the most important issue to be resolved.  In the conversation, the mediator helps by restating positions in slightly different terms. This allows the position to be confirmed and fine-tuned, with less emotion and anger. If both sides can Identify the problem more clearly, and all its components, the chance of finding common ground is better.

That common ground, the settlement, is never going to be perfect for either party, and yes, as you leave mediation you are likely to be kicking the dust and wishing you had held out for a different outcome. The fact is, you will never know if a more favorable settlement was possible or if holding out longer for different terms would have sabotaged the settlement and sent you back to square one. There is great value in getting on with your life and leaving conflict resolved and behind you. It’s not a perfect world.

Steve Forrer, former dean, and vice-chancellor of the University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.

 

I was following a tow truck on Rt 50 the other morning with a nice, late model, BMW on the flatbed. Nothing seemed to be damaged.  Maybe German engineering failed and it broke down or maybe it was being repossessed. Seeking the return of property through the  Maryland courts is a two-step process. The legal actions are called Replevin and Detinue.  

The first step, Replevin, is the first legal action filed in the District Court where you seek the return of personal property, with possible damages regardless of the amount in dispute.  The property may be your late model BMW or your favorite aunt’s tea set. It allows for the possible return of the property based on a show cause hearing, a hearing held prior to the trial. In other words, the judge can order the property returned or the posting of a bond for its value, pending the trial.

Detinue is the second step and requires a trial to actually determine the rightful owner. For property values up to $5000 the action is filed in District Court. If a claim is between $5,000 and $30,000, the claim may be filed in either District or Circuit Court. Detinues for more than $30,000 must be filed in Circuit Court. Detinue is the legal action for the return of personal property or the property’s value, plus possible damages.

The Courts encourage parties to mediate these personal property cases. Mediation can occur at either stage of the process. Mediation allows the parties to confidently discuss the issues around the ownership of the property. The mediator’s job is to facilitate a conversation to help discover a mutually satisfactory settlement between parties.  They will not make the decision on ownership and will not provide legal advice. Mediation has a very important feature. The process puts the parties 100 percent in control of the outcome. In a trial the judge will decide who gets the property or financial equivalent.  Mediation allows a much more flexible settlement. It can allow payment terms, delivery conditions, timelines or any other terms that are mutually agreed. 

Whether the property issue concerns a dog, BMW or tea set mediation can provide a confidential and flexible process to settle where the property ends up or what financial compensation is satisfactory. For details go to https://mdcourts.gov/legalhelp/returnofproperty.

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations

 

 

A few weeks ago, six of our seven grandchildren came to visit us in Easton. It was a week that previewed summer. One of the activities they love, like all kids, is fishing. Down to our dock we trekked with worms, bobbers, and spin rods in hand. With worms appropriately fixed to the hooks, casts were made into Chapel Cove.  One, then two, strikes. Excitement rose as small white perch were landed and then released. Then it happened, as it always does. One of the monofilament lines became so tangled it looked like an osprey nest…a true Gordian Knot. I am sure that I could have untangled the mess, but it would have taken 15 or 20 minutes. I made the decision to simply cut the line at both ends of the tangle and then rejoin the lines with my best surgeon’s knot. Back fishing in 3 minutes.

This reminded me of a recent mediation I conducted for the District Court. The parties were in conflict over the completion of a roof repair. The roofer wanted to see final payment for a job considered complete. The homeowner expected some additional work to be done to a skylight. One party filed a complaint in court and expected to argue their case. The other party came to defend themselves. However, at the judges suggestion, they agreed to mediation. As they shared their two versions of the story, it became more and more confusing and circular. Was repair of the skylight included in the contract? Who said, or promised, what to whom was truly a Gordian Knot. My role as mediator was not to be a judge. Mediator’s do not decide the outcome, rather they facilitate a conversation that, hopefully, ends in a settlement acceptable to both parties. I don’t think a judge would have been able to unravel the story, or have the patience to do so.

For the parties to a mediation, whether it is over a roof repair or divorce, it is very hard to get beyond trying to explain their version of the story and realize the goal of mediation is to get beyond the past, and put the parties in control of their future. To do that, they first must decide to cut the tangle at both ends and discard the tangled story.  This is so difficult because court referred parties often come to mediation as adversaries…they are in conflict…one is right, the other wrong. They are invested in their version of the story. The great insight comes when both parties realize the outcome (or settlement) can meet the needs of both parties. One party does not have to win and the other loose. Once that mental switch is thrown, the conversation moves to discovering a creative and flexible agreement. That agreement will not be perfect, it will involve compromise, but it  is far better than leaving the decision to the court.  

There is one fact to keep in mind. Mediation is confidential. Nothing discussed or shared in a mediation session can be used in court at a later time. Therefore, the risks are minimal and the upside is reaching a settlement you control and works for both parties. 

Steve Forrer, former dean and vice chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations