COLUMN-Master Mediator: Robert A. Creo's "Legos & Me" (Web)

Not long ago, I was visiting my alma mater, Washington University in St. Louis School of Law, during the traditional Friday afternoon free-beer happy hour.  I noticed a group of students unloading a mass quantity of Legos from boxes.  The Legos were set around a clear area in the middle of the room.  It was obvious that they were ready to engage in a communal and improvisational building project.  

It stuck me how appropriate the Legos analogy is for not only for training mediators, but in the conduct of the mediation process itself.

Mediators often are faced with a vast array of data while convening and conducting a mediation session.  Effective neutrals start “mediating” at the time of the first contact with the parties and do not stop until there is “final” impasse, or resolution.  

Along the way, particular “data” strike the mediator in such a way that it creates “information” that ultimately forms into a working thesis on a specific aspect of the conflict.  I liken this “data” to an individual Lego piece.  

Legos come in all sizes, shapes and colors, but share the attribute of being able to interlock with each other via the design features on the top and bottom.  This interlocking effect is how I analogize the conversion of data--one Lego piece--to information–that is, one or more Legos.  Combining data bits yields information; combining information into patterns creates theories, themes, stories and other constructions of the conflict, or the conflict’s eventual resolution.
   
While mediating, I am warehousing “Legos” for the future.  These Legos are the building blocks of one or more versions of the narratives of the conflict.  Successful mediators are not only able to recognize these complex patterns and narratives, but are also able to deconstruct and reconstruct these blocks into alternative depictions.  

The Legos can be pulled apart and discarded, or otherwise replaced with a piece of a different size, color or function.  Lego structures are a function of creating an improvisation.  No one builder, leader, or team approaches the Legos with the same step-by-step, critical path construction model.  And at the end, there are always pieces left over--the mandatory waste and discarded clutter of construction process.  

This is true of conflict resolution: There are discards and a "letting go" as a prerequisite to resolution.  These are the things we spend time on, as disputants and mediators, that we must abandon for our own or the common good--sometimes as a gaping loss, sometimes with grief, but always with intent to construct a better future.

Legos in the field: some design principles and applications
 
Ethan worked at the same hospital where he and his spouse filed a claim alleging medical malpractice.  The employment relationships added another level of complexity, and opportunity, to my role as mediator.  I immediately saw lots of brightly colored pieces easily snapping together for a comprehensive resolution.  The participants were eager to cooperate.  The following “Legos” were in plain sight. 

  • Ethan was well respected as a good employee.
  • Ethan and his spouse had a valid claim.
  • The hospital recognized that conduct was negligent, falling below the standard of care.
  • Ethan was proud of his work performance.
  • Ethan was distraught about the failures of his co-workers.
  • Ethan's spouse, Jordan, was concerned about potential retaliation against Ethan once the claim was resolved.
  • No one wanted a public trial in the small community.
  • Jordan and Ethan were concerned the same bad things could happen to others.
  • The hospital administration had wanted to acknowledge culpability, and apologize, but was precluded from doing so by its counsel and insurance carriers.
  • The hospital had taken remedial steps.
  • The hospital disciplined the involved employees, but this had not been disclosed to Ethan and Jordan.
  • There was a legitimate concern about Ethan's employment privacy rights.
  • Ethan had to use his “sick bank,” personal and vacation days, to care for his wife.
  • Ethan wanted to continue his employment.
  • All participants wanted a fair and reasonable monetary settlement.
  • Ethan and Jordan wanted to continue their healthcare with the facility.
  • All participants had a high level of anxiety about what constituted “fair and reasonable” compensation.

The Legos assembled in the staging area without much effort through my mediation role.  The challenge was in the pacing and sequencing of the construct, and in who should be the lead designer.  I recommended that we resolve the noneconomic issues first, but only after I had explored, confidentially in separate caucuses, what each party and its counsel deemed to be fair and reasonable economic compensation.  

Although the parties were apart, I felt if the non-economic package was strong enough, the money would fall into place.  We agreed as a procedural matter that the hospital would package the noneconomic items together from its Legos for presentation first to me, and then the Plaintiff team.  I would then assist in any redesign before it was presented to plaintiffs.

The hospital did an excellent job in its initial package but included the restoration of the sick bank as a noneconomic item.  I thought that Lego was best placed last after the economic package was presented.  I viewed it as the proverbial “icing on the cake,” which would smooth some of the bumps I expected as the parties compromised on the monetary ranges that were disclosed confidentially to me in caucus.

I had the hospital’s president present the noneconomic package to th plaintiffs.  The differences were easily ironed out and the parties arrived at mutually beneficial enhancements in drafting the details.  So as not to disturb the significant progress and harmony, we engaged in shuttle-diplomacy as the bargaining model.   

With each proposal, the hospital HR Representative was eager to throw in the sick day restoration.  Each time, I advised him “not yet,” since my thesis was this had to be the Lego to be added.  I also was concerned that the plaintiffs’ counsel might perceive that the hospital was using the sick days to lower the money portion of the settlement, and thus directly lower the contingency fee of the plaintiffs’ counsel.  

This Lego I did not want to tamper with during the fragile portion of the monetary negotiations.  At the last move by the hospital, which was an acceptance of the plaintiffs’ last proposal, I brought the full hospital team in to say the case was settled.  I then nodded to HR representative, who informed the plaintiffs that the hospital would restore all of Ethan’s sick days arguably related to Jordan’s care as a result of the claim.  

This small but brightly colored Lego sat not only on the top of the resolution structure, but acted as a beam of light and hope to guide the restoration efforts.

So Lego masters, here are some simple construction principles:

  • Take in all the colors, shapes and sizes.
  • Honor creativity.
  • Honor flexibility.
  • Honor Improvisation.
  • Stage and Sequence.
  • Be open--not attached to outcome.
  • Don't be afraid to hold back some pieces.
  • Don't be afraid to tear down all or part of the structure.
  • Don't be seduced by the easy path.
  • Don't be afraid to use the unique or riskiest pieces.
  • There will always be leftover Legos.
  • Don't be afraid to play with Legos at any point.

So meet me, someday, in St. Louis for a Friday night round of Legos!

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ROBERT A. CREO

This is the 17th CPR Institute website Master Mediator column by the author, a Pittsburgh attorney, mediator and arbitrator.  He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators, and served as its president between 1997 and 1999.  His current project is the Master Mediator Institute, where experienced neutrals are developing new, sophisticated practices based on investigations of mediation techniques in the context of behaviorial science.  Bob also is a member of Alternatives’ editorial board. He is author of a two-volume, loose-leaf ADR reference book, titled “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner.”  The book is available from publisher George T. Bisel Co. at www.bisel.com. He can be reached at robertacreo@cs.com.

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April 22, 2009