Part 1: What It Takes To Be a Mediator (Conflict Resolution Minnesota, Tennessee, Missouri)

Hi Welcome to MediatorPodcast.com - A podcast and video series about mediation, negotiation and collaboration.  My name is Melissa Gragg, I provide online valuation, divorce and mediation services in St. Louis, Missouri. 
 
In this week’s episode we will discuss  do you have What It Takes To Be a Mediator with Kimberly Best, a registered nurse, mediator, and conflict coach based in Franklin, TN and author of How to Live Forever -  A guide to writing the final chapter of your life story and Elliot Herland, a mediator focused on workers’ compensation cases, based in Minneapolis, and Vice Chair of the ABA Section of Dispute Resolution Membership Committee.
 
Welcome Kim and Elliot!!

1. How did you all get into mediation?
2. What training and continuing education is required or recommended?
3. What skills are helpful to a successful mediator?   
4. What would you like to see for the future of mediation?
5. What can a mediator do to pull in business?
6. How do you use the virtual world via social media and online networking?
 
 
 
Melissa Gragg
CVA, MAFF, CDFA
Expert testimony for financial and valuation issues
http://www.BridgeValuation.com
Cell: (314) 541-8163
Bridge Valuation Partners, LLC
melissa@bridgevaluation.com
https://www.valuationmediation.com 

Kimberly Best, RN, MA
Best Conflict Solutions
318 Canton Stone Dr.
Franklin, TN 37067
615.438.6942
kim@bestconflictsolutions.com 
bestconflictsolutions.com

Elliot A. Herland
Herland Mediation Services
3881 Evermoor Parkway
Rosemount, Minnesota 55068
952-240-4005
Email: herlandmediationservices@outlook.com
Website: www.herlandmediation.com
Facebook: https://www.facebook.com/herlandmediation/
LinkedIn: www.linkedin.com/in/elliot-herland-mediation-services

Transcript

Melissa Gragg: 0:00

Hi, welcome to mediator podcast.com, a podcast and video series about mediation, negotiation and collaboration. My name is Melissa Gragg and I provide online valuation, divorce and mediation services in St. Louis Missouri. In this week's episode, we are going to discuss, do you have what it takes to be a mediator with Kimberly Best? She's a registered nurse mediator and conflict coach based in Franklin, Tennessee. She's also authored the book of how to live forever a guide to writing the final chapter of your life story. Also, as our guest is Elliot, Hurlin a mediator focused on workers' compensation cases based in Minneapolis. He's also the vice chair of the ABA section of dispute resolution in the membership committee. Welcome Kim and Elliott.

Elliot Herland: 0:50

Thank you. Good to be here. Thanks for having us. Oh, by the way, Kim is on that committee too. Oh, perfect. So both of them are on the committee.

Kimberly Best: 1:00

I'm actually also, I don't know that it matters to you, but I'm on the board of the Tennessee association of professional mediators. Yeah. I mean, I don't, I don't know Elliot, I have done a terrible job on your committee. I don't deserve to be a, to B

Melissa Gragg: 1:20

Either way. We have some heavy hitters in the mediation world. And I think what we've come here to talk today about, which was a great suggestion from Elliott is how do you get started in this place? You know, like how, and by way of even talking about our own backgrounds, right? So we have Kim, who's kind of a non attorney. We have Elliot, who's an attorney I'm in the finance world, but maybe just getting started in, how did each of you get into mediation will help people kind of understand the path. Maybe we'll let Kim go first. Yeah.

Kimberly Best: 2:02

Ah, thank you. So, um, that's a great question. I've spent a lifetime between, uh, growing up, uh, my work as an RN in trauma and intensive care and emergency. Um, I've just spent a lifetime seeing extremes of human behavior, um, places where we're at our worst. And then, uh, the tipping point for me was going through a really bad divorce. And the thing I always noted was that, uh, this thing called conflict or disagreement, uh, almost no one has been equipped with the tools of how to do it better. And so going through my divorce, my brother, who is an educator, um, introduced me to Hofstra and their mediation, uh, program. Uh, so I went just out of interest. Um, I I'd already had a psychology background, uh, just because I like, um, people. And, uh, so the interest in conflict I went to there and that started introduced me to mediation in general. And then I became, um, just more and more convinced that if we could learn the skills that mediation teaches around, um, how to handle conflict, learn those tools. Um, the world could be a better place, like less, less fighting and more cooperation. So that began my journey. That's awesome. Elliot, what about you? What kind of got you into mediation?

Elliot Herland: 3:31

I think the first thing a person has to have is passion. They really need to want to be a mediator for me. I was a litigator. I didn't enjoy many parts of litigation except for mediation. I realized how much I enjoyed mediation. And so that's where my passion took me. Now, the thing is you need to be patient in achieving all that passion and you need to figure out a pathway on how to get there. Uh, for me, I was fortunate enough to, uh, get a position at the department of labor and industry where I would learn how to do mediation. And then of course there's the training that's required, but I would say passion wanting to do it is the essential ingredient.

Kimberly Best: 4:33

Well, and I think it would be helpful too, if maybe Elliot you can start is just to give us a little bit of an idea of what kind of mediation you do, because I think that everybody will start to understand that mediation has a lot of different meanings. So what do you focus on Elliott?

Elliot Herland: 4:53

Well, uh, my focus is on the workers' compensation laws and employment laws in the state of Minnesota. Uh, so when people get hurt at work, uh, there's uh, certain laws in place regarding benefits and when parties are ready, they come into mediate either about a single issue or maybe about a full final and complete settlement of the case.

Kimberly Best: 5:24

And Kim, what about you? I know you do a very different mediation. I do. I do, um, you know, elder care end of life decisions. I do family and civil, but a lot of right now, a big part of my work. Um, I was fortunate enough to have Ken cloak as a mentor. Um, he did a training when I was in grad school and I just kind of adopted him. And so, uh, mediators beyond borders and some of their programs in there I've been, um, this year spending a lot of time working with, and that's kind of promoting, um, mediation as a conflict resolution from a community center. Well, from an interpersonal way, all the way to community, um, especially around, you know, some of the tough issues our country's been facing and in the conflict and stuff. So using community, I'm sorry, using mediation as a way to build bridges, um, in our day-to-day life and not just as in the legal system.

Melissa Gragg: 6:25

Well, because part of even being a mediator is like facilitating conversation, listening, trying to help people get through some sort of conflict, whether it, you know, in, in all aspects. So I actually deal with people that are getting divorced and if they have a business valuation or complex financial situation, so three very different ways to use mediation. But I think also, you know, part of it is a personality, you know, part of it is, um, do you have what it takes to be a mediator? Is it involves some skills? And so what are some of the skills that you've seen because after we talk about some of the skills, I think then we can talk about like training and other things that people could actually get into it. But what, what have you seen even in yourself, that's been one of the best things that has, has made you successful in this space? Maybe we'll start with Kim.

Kimberly Best: 7:33

Um, Melissa, I want to address your, your divorce mediation first. Um, if I could, when, when I started, uh, in mediation, my goal, I told myself I would not do divorce mediation. I would try to get people before they got that far down the road, because I believe the tools that are used in mediation, um, are skills that build communication between those two people. Right? So, um, I, I try not to do, um, I try to keep my people together for mediations as much as possible. Um, so, so joint sessions, um, but I wanted the opportunity to be able to have people try to resolve their conflicts and see if their marriage or relationship, if it's not marriage, um, could be, could be saved. And indeed it's hard to find clients willing to do that, but indeed it does work and, and at the very least, uh, to have the conversation, so they maintain some type of a relationship that helps them raise their kids together when kids are involved. So, um, so I just hats off to you for doing that kind of work, especially collaborative, because I think the, I think part of our, our children are suffering because of the acrimony of litigation and how we do divorce now and offering an option different to that is, uh, is where I started with my passion. Well, and psychologically, I think you're right on target psychologically. If I, after doing almost 20 years of divorce, if I really identify the top reasons why people get divorced, number one, people would not imagine it's communication, then communication about money, about romantic relationships, about your kids, but it's always stemming from communication. And so it makes sense that people would need that. And maybe if they did start sooner and they could learn how to communicate around those things, they wouldn't have, they wouldn't get it onto the brink, you know, but who, who knows exactly what you talked about when you said different definitions in mediation, there are different ways to do mediation and using it to, um, strengthen relationships, to set a roadmap for how, you know, people come together and communicate, um, is sort of catching the conflict in an earlier, earlier form. So the beauty of mediation, and I think people in the public, at least the ones I encounter when they hear mediation, they either think of, um, things like, like Elliot's for, for work inside of corporations and companies, uh, labor reasons or divorce reasons. And, um, and not the, the breadth of the possibility for mediation in just resolving conflicts at any level. Yeah.

Elliot Herland: 10:21

And you know, the, the difference, uh, there, that it all involves relationships, but I've always found the broken bones heal quicker than broken hearts. And it's easier to talk about those types of relationships than the intimate relationship involved in a divorce. But as far as skills go, I think it's very important for the mediator to know their place. What I mean by that is letting the parties know I'm not a judge. I'm not here to weigh evidence, hear testimony, make decisions, tell people what to do. I'm here to facilitate that conversation provide guidance, but it, it, you have to have a perspective on that in knowing that this is their mediation. It's not my mediation, it's not our mediation. And so that's important that they understand and have some responsibility in the process when they have ownership in the outcome of their mediation, it tends to improve the odds of a successful, uh, settlement of the case. The other thing I think, uh, and we may all want to discuss this as is being present, uh, without being the smartest person in the room, because you want those attorneys to be the smartest people in the room. Another relationship is the attorney client relationship. And that's very important to understand that and let, let them have, uh, the, the spotlight in front of their clients. Uh, but listening, perceiving body language, all of those things need to be in place, uh, for a skill set. And the other thing is to be humble. And that means accepting that you're going to make mistakes. It, perfection is impossible. It's not going to happen. And if you think you're going to be perfect, you're going to be disappointed.

Melissa Gragg: 12:41

Well, and I've, I've seen some mediation in divorce that usually you have a spouse that is not controlling the money and you have a spouse that knows everything about the money and, or, or the whole, their whole lives. Right. And so you have kind of a Meeker spouse. It doesn't necessarily have to be a woman or man, it's just one of the, it's the role they play. And what happens in the mediation is at the beginning. They're like, well, just tell me what I should do. Just tell me what I should take. Like tell me if that's okay. Is that a good deal? I don't know. You know, and at the end, usually, you know, and I, and I have a situation right now at the end that they're like, well, I'm going to do this. Well, I would agree to that. Well, I would, that's a very different way of communicating. They, they now are more educated about the situation. They now have taken their own control of what they want out of the situation. And they're no longer saying to the mediator, just tell me what to do. And so it really is an empowering, you know, system, but it also is because it's a process. It doesn't happen overnight. And during that process, you grow on how you communicate, if you co-parent and all of that, and any mediation like Kim's doing, or Elliot's doing, you know, Kim's dealing with families, another prime space where they have hard times communication, you know, from the past issues or whatever. Um, but I think that those are, and, and we kind of call some of these people like impacts. Do you think, like impacts are better at being mediators? Or can you become Impathics that's a great question. So in the skill section, uh, what skills it takes, uh, the P word that Elliott, I think, I don't think it was on your list, but I think it's a heart for peace, you know? Um, and I, for me, that's what, that's what, uh, finding a peaceful way to do the things, Melissa, what you just described the demonizing of the other side, it's immediate, you know, and I think the reason it can be hard during people to the table, to mediation, why they want someone to decide why they're reluctant to come together. Isn't always so much that they, you know, hate the other

Kimberly Best: 14:52

Person that badly. I think I found that people were afraid to find out that maybe they were the problem, right. So they're confronted with, they're afraid that someone's going to point and say you're to blame or your RA. So what, what Elliot described in our, um,[inaudible] some attorneys used the word neutrality. I use Omni partial. I tell my people when I'm working with them, that it is not possible for me to be completely neutral. Um, then what I'm going to do is advocate fiercely for each of you, you know, so whoever is talking, I use that empathy that you talk about. I literally try to put myself in their shoes and, and when you do that and can understand them and they feel heard and understood, I think that's where, uh, that's when movement starts, right? Because no one budges until someone has heard their story, affirm their story, um, acknowledged their truth. So hope being able to convince people that you can hold two truths is, uh, you know, part of a skill for mediation. So I think the main skill begins with the mediator, recognizing the room triggers, um, knowing their own biases and being able to be, um, present and comfortable with conflict because emotions are contagious, right? And it can get pretty emotional in there and we have to be able to be calm and allowing of those emotions. Um, I think for mediation, you know, to be more than just about, um, coming to a settlement to an agreement

Elliot Herland: 16:34

For me, empathy is different than sympathy. Empathy is different than pity. People don't want to have pity or sympathy. They want to be understood. They want someone to validate the feelings that they have, and you can do that without necessarily agreeing with their point of view. And that's a skill.

Kimberly Best: 17:06

I also think a mediator may be, needs to have a mission statement. So, so your why, why are you doing this? You know, and I think if you're really clear on that, um, which, I mean, it's a fluid thing too, right. But if you're clear on that, um, I think it'll help it don't it just helps the process that you're guiding people through and mediation. Well, and the reality is mediation can be used in business, in life, in communities and apartment communities. You know, I've talked to Marina about going and doing mediation at colleges, you know, when there are issues with students or teachers or things like that, younger people can connect a little bit better with younger people,

Melissa Gragg: 17:50

You know, not always. Um, but I think that part of what you guys are also talking about is, um, you know, how do we, let's say I've identified that I have the right personality. I think I know something about a certain topic or area right now, what are the rules? You know, what is the training or continuing education that's required or recommended? And then, you know, do I have to abide by mediation rules, right? These are things that people don't always know everything about, and you want to take this, you want to start off Elliot.

Elliot Herland: 18:28

Sure. Every state has a different set of rules so that you can qualify as a certified mediator. So I encourage people to look that up. You can actually Google it, and then you find out what preparation you need. It's usually, uh, somewhere between a 30 to 40 hour training program that is required, and then there's also continuing education. But I think in, when I talk about learning the craft, you have to do more than just the training. You have to know what area of law or areas of law do you want to focus because it's important to focus in on a particular area or related areas, and then associate yourself with the people in that area. You get people, uh, you know, mentoring, it'd be involved with the organizations like the American bar association, dispute resolution section for that, um, there's, uh, other organizations available, but you want to be around potential clients. Uh, for me, I would go to the work comp Institute or the work comp desk book so that I can be with the people that I'm looking to work with. And then you have to practice, especially early on in your career as a mediator. You're not going to have clients right away. So you may need to do some pro bono work. You may need to, uh, co mediate, uh, or have a mentor that you follow, uh, that gives you, uh, an example. You want to create a name for yourself.

Melissa Gragg: 20:31

Well, and I think that another kind of area or another thing that people should consider is that mediation, in my opinion, is a lifelong journey process learning. And that any time that you're around other mediators, you can learn something a little different perspective, a way to deal with something. I think it's a lot of negotiation techniques too, but also, you know, we're doing a lot of online mediation. I think you could reach out to other mediators and say, could I just be in the back? Could I take notes for you? Right. Could I just be there? And maybe it's said, you know, that somebody else is there, obviously it's not right for every sir, but, but in an observer or a note taker, especially if it's in your own firm, if it's in your own firm, you know, I've said, okay, Marina's going to be here. And, and she's going to be taking notes and we're not charging you for that. It's going to help me be more effective. Right. And then, then I can pay more attention. And at the end I can look at the notes and be like, okay, maybe I missed, Oh, I didn't, I didn't notice that. Whereas somebody else did, you know, so I think there's, there's ways that you can get next to really smart mediators and offer to help them. Even if you're not on the conversations, you could help them with intake. You could help them with something. Right.

Kimberly Best: 21:58

I think Melissa, the thing around that is as mediators. And when I graduated, uh, with my conflict management degree, um, I could not find a mediator willing to mentor me or let me sit in on a mediation. And, uh, I think that's been a big problem. So both of you mentored mentioned, um, mentoring, I think the best mediators I know are willing to share everything they have, whether it's their presentation notes. I mean, everything they have. And I think to have that heart of, uh, you know, I know it's different than perhaps a lawyer has been raised as far as, um, um, I don't know, generosity of work, you know, I think it's a more compartmentalize sort of practice, but in mediation we have to help each other grow, um, instead of competing with each other. And I do want to give a shout out to an opportunity that's been incredible as far as connecting with the best in the world. And that is, uh, Natalie Armstrong started a, will work for food program, uh, which can be seen through LinkedIn, but every single week they're bringing the best mediators from around the world. And I believe Elliot was one that's spoken that I don't know the best mediators around the world and it's free an hour spent with these people. And, uh, they, they do want to get to know new people. Um, everybody's, we're all in this together, right. And when we, um, professionalize our profession, when we raise it to a higher standard, it does all of us. Good. So, uh, we'll work for food, um, is, is completely free except they recommend making a donation to a food bank instead of paying for that. Um, uh, whatever the topic is, was a beautiful, uh,

Melissa Gragg: 23:46

With, um, um, Dean, uh, song Richardson from California this week on diversity. And, um, they've raised$80,000 so far for food banks just through this program. So, um, yeah, LinkedIn is a great source for finding other mediators and actually connecting with them. For me, it's been the best because I can email connections to people request, and I wouldn't hear back, but I'm claim it and you can send a message and most people respond, but it is about building the relationships as both you and Elliot,

Elliot Herland: 24:20

You know, and, uh, since we're, name-dropping Susan, also someone who, uh, does a great job of, uh, training, all sorts of things. Uh, and one of the things is how to use the online platform, which is very important. That's another skillset. Since many people have been doing virtual mediations for years, I didn't start doing virtual mediation until the pandemic hit. And then this in-person mediator had to learn how to use that platform. Uh, and Susan does a great job

Melissa Gragg: 25:01

And she just put out a great video, I think really like this past week or something even about hybrid mediations, right? Because, and this kind of piggybacks on what Kim was saying, you know, there's been a lot of people out there doing mediation, but then the pandemic hit and it was like, Oh my gosh, who, nobody could have predicted that the courts would close. And how could we predict that almost a year later, we have courts that are still closed for all intents and purposes. So we've kind of had people had to be pushed out into this mediation space if you will. And now everybody's either like, well, I've been doing this for a while. Like yeah. You know, like let's get together and talk more about our skills, but it also kind of gets us to everything has changed everything. You know, like everything that we knew is how it was done. You know, I was talking to somebody last night and I was like, when are we going to rewrite the story? When are we going to stop saying, this is how it was done. This is how we used to do things. This is how I knew how to do it. When are we going to write the story of how it is happening and how we are going to see it happening? So what, what do you guys see as the future of mediation for mediators, for people, for anybody wanting to get into this space? Because it's hot, it's a lot going on right now. And it's such a good question. Um, that's a great question. So I'll tell you what my hope for the future of mediation is. Um, I think, um,

Kimberly Best: 26:44

I just had a brilliant, I'm glad, I'm glad this isn't a lie cause I knew this would happen. It just, it just, it just left. Um, Elliot, go ahead.

Elliot Herland: 26:56

Well, I think where you were going with that is that mediation takes a bigger role in the resolution of all kinds of issues. For instance, for me, it involves certain legal issues specific to a certain area of the law. Um, Melissa, I think you're also involved in a very specific area of the line and Kim you're in a, uh, an extremely, uh, interesting area that I, I didn't even know there was mediation involved in your area of expertise.

Kimberly Best: 27:42

Mm. So, so my hope for the future of mediation, um, is that it becomes the first choice in conflict dispute, not litigation that it's mediation first and that the skills that it takes to mediate and what people learn about handling conflict and mediation, um, is expanded to a personal level. So though, so that we can learn to mediate, uh, in our own homes, uh, in relationships, um, in communities, uh, in making decisions around the government. Um, yeah, so, um, my, my hope is that it's, Oh, I remember what I was going to say. The exciting thing about mediation is that it is so new. And I think in it being so new, the potential is limitless, but I think it's our responsibility as mediators to help, help keep it in elevated condition. So I know people who've done mediation and they're like, or have been to mediation and they say, Oh, that was terrible. So there's going to be, you know, growth and pain. But as I think we keep making it as professional, as thorough as, um, comprehensive in skills that are around, not just how to reach agreement, but all the things Elliot mentioned, including, um, you know, how best to handle conflict, um, how, how best to empower people to make those decisions, um, that the potential is limitless after that, as far as, um, mostly using it as a, as a form of, um, conflict resolution before litigation.

Elliot Herland: 29:24

Right? And I think it's important for us to understand that mediation will not necessarily work in the idea of it's going to settle, but it prepares people for litigation because some cases need to be heard either by a judge or an arbitrator or a jury, whatever the case might be. Uh, so I think what we want is for mediation to either be a bridge toward peace, uh, or a bridge toward a more informed litigation.

Melissa Gragg: 30:10

Well, and there are some times where we can mediate, you know, maybe there's five issues and we can mediate two or three or maybe even four. And, and I'll tell people, listen, we don't have to be like this isn't grade school. We don't have to get a hundred. We don't have to be perfect, but if we can limit it to really one issue that the judge has to deal with and that you guys really can't figure out, that's going to be way more cost-effective than having all of these issues that are clouded. Um, and I think that that's one way, you know, right now you have a lot of courts that you're going into litigation, and then the court is kicking you back out to mediation and saying, okay, you need to at least two hours of mediation before you can come back to court, you know, or mandatory mediation before they can even go to court to begin with, you know, like a lot of States already have that in play or counties. And, and they're looking for people to help with that situation. When I tell people, could you be an expert witness? I say, sure anybody can be an expert witness. If you stick to what you're good at, and you do something of passion, right. I love what I do. So I'm going to be better at it. It's the same with mediation, there's mediation in all realms. But if you pick to do mediation in a realm that you love and that you have passion for, then that's where you're going to be most successful. And you know it right. You could mediate electrical issues. I don't know if you were an electrician, right? It doesn't mean that you have to have really any skillset or any background. It's you have the love and passion for that. And then can you hone some of that? Um, but interpersonal and then sharing everything. The other thing that you've said is like sharing between mediators. You really have to start to see that there is no competition that in the mediation, the way you show up as you is a big part of it. And so I'm not for everyone, neither is any mediator, but there are are times where if you can hone how you connect with people and you can listen and you can be empathetic, that makes you a better mediator because you can deal with different types of people. And that I think helps you be successful.

Kimberly Best: 32:42

Well, absolutely. You know, Melissa, um, as far as the future of mediation and the, when, when you described that things are in litigation and then they, you know, or mediation is mandated before you can move forward. What I would like to see is mediation first, because going through the litigation process itself is building acrimony, particularly in families. So the opportunity, you know, the they're further apart because of the process, the legal process. So if we could do mediation early in the process, I think it would, it would make our job easier, but it would also make the outcomes better for them. It would keep those relationships from, from becoming so fractured as they do. I also want to, one more comment that I meant to make before about the practice of mediation. I think community mediation centers are a great place to start honing your skills. And especially now with the court backlogs, I know our community mediation centers are starting to alleviate those and we're taking the non-represented cases. Um, so there's a lot of pro bono mediation for that, and a lot of learning opportunity. And those are situations where there's co mediation. So they're pairing up people who, um, have experience with newer people, what a great opportunity to learn, how to mediate.

Melissa Gragg: 34:08

Absolutely. And I think, but I think that where people can think, okay, well, how could I be involved in mediation? Again, it goes back to what is your own education? When, when I said to Marina to go to colleges, it's because she's just fresh out of college. Right. And, but she knows, she knows what it was like to be in college to experience it, to have issues with teachers or friends or whatever. Right. And, and that she could be beneficial in that. And I think that, you know, Kim, you had a medical background and now you help people and families at the end of life. That makes sense. That's not a place that I would fit in. Well, and the same with Elliot, he understands worker's comp legal issues and is dealing with workers and companies, you know, again, probably not where my strong suit would be. And so it's kind of in, you know, there is a lot of lucrative business in this space, you know, you're going to get paid by the hour. You're, you're going to bill at hourly chunks. You're going to get paid immediately sometimes, you know, and sometimes if you're cheaper, somebody might work with you, even though you're trying to learn it. But I think you have to have a base knowledge of something, you know, whenever you go into that media mediation space, it's like, well, I have 20 years of divorce experience, you know, so I'm gonna, I'm going to help you with that. Or I have 20 years of valuation experience and I can help you with that. But if you're going to ask me something about end of life, I'll be like, uh, you know, and that's where you're going to show up, not as strong. And so I think it's building that. Um, but then it's okay. So let's say we do all of those things. We get experience, we get trained, there's usually always training. Um, then how do, how do I pull in business? You know, like how did you guys Elliot, when you decided to shift from being an attorney, how did you go and get business? And then we know relationships, we know those types of things, but what other conscious things did you do, um, in your practice?

Elliot Herland: 36:17

Well, I was fortunate in going from, uh, uh, practice, uh, to, uh, the department of labor and industry where people were funneled into me. So the marketing wasn't as important because, uh, like court systems will, we'll go to a roster of mediators. Uh, and here I was a mediator where parties would go for work comp. Uh, and then after that, I went to a, a, the union construction workers compensation program as the dispute resolution facilitator and doing mediations for both systems now. So people got to know me and, but it's interesting because once you leave that type of environment, now you're on your own and people might know you, but maybe they don't want to use you, or maybe they do, but it's important that they know you're there. Uh, you know, you, you, you develop a certain personality, but then again, you need to participate. You need to get out there and be with people at, well, it was a lot nicer when you could be in person and you could take people out to lunch. Um, but you need to have a website, uh, so that you can be found, especially, uh, people who are more geared toward the computer, uh, people in my age group, you know, it's word of mouth, but when someone doesn't know you, if they Google you and you don't have a website, well, now you've lost a lot of credibility reputation. Uh, you need to be persistent and, and, uh, you need to work. You need to have that, uh, to use another P word, I guess, perspiration, you got to put some sweat into it, some skin in the game, um, and learn how to promote yourself.

Kimberly Best: 38:38

What about you cam? So it's all relationships. I mean, I, I did learn, uh, I I've heard that our, our profession is not one that you can advertise for, you know, it just doesn't doesn't really work, but you have to build relationships. And like Elliot said, you have to, you have to put yourself out there. So giving talks on conflict, uh, giving talks on what is mediation, you know, speaking to groups, but also joining whatever professional organizations like the ABA, like your local, whatever your state organization is. Um, they'll often often offer, uh, um, either free or reasonably priced, continuing education, um, networking with, you know, like people, um, and then using every opportunity to, um, promote mediation, not yourself as a mediator, but, and you can't, and of course, I'm not saying don't, but mediation in general, that, like you said, that many uses, I mean, you described having area of expertise when you mediate, which is also what Elliot talked about. As far as having passion, you know, your passion is your area of expertise. Um, a lot of people, I know, um, a lot of really good mediators who, uh, because the skillset is the same across the board and become so good at their skill set that they, they can mediate anything, a broad range of things, because we don't necessarily have to be experts in a certain field to be, you know, to be good mediators though. I think it helps tremendously. And as a non-attorney mediator, um, there are places where I think a, an attorney mediator would way would be way better served than me. Um, you know, depending on, depending on what I do feel like I have enough knowledge that, um, for people to be able to come out with their best agreement.

Melissa Gragg: 40:35

Yeah. And I think as an expert at this, you, you know, you guys could probably mediate anything, right. Because you've built the knowledge of how to mediate, how to get people to get to a different position. You know, like all of those are the skills that I think you can only learn in mediation. You know, like there's certain things I'll test out negotiation tactics, like on my yard guy, you know, I'll be like, okay, I'm going to see how he re because, and test it out with your friends. I mean, because why not see how, how humans make decisions based on knowledge, you know? Like, I don't always know how somebody is going to react. So like, I test out things on my husband or my friends or Marine. No, I don't do that. I'm just, you know, but I think that that's your, you know, like I don't read self-help books, I read negotiation books, I read business books. That's my self care, you know, if you will. But I think that, um, what, what were you going to say, Elliot, you were going to have another point about, uh, how you bring in business and how you connect.

Elliot Herland: 41:46

Well, I think one of the most important things to your relationship with other people and your reputation is to be professional. Yeah. You know, you cannot come into this in a, uh, overly casual way. You don't want to be too stiff either. You don't want to be boring. You have to have a personality, but always underlying that is you need to be a professional. Uh, you're being paid so well, unless you're doing pro bono. And even then you are being paid because you're getting to, uh, exercise those mediation muscles and build up that strength to get you and, and the people you're serving.

Melissa Gragg: 42:37

But even if you're doing pro bono, I think this is the difference because I'll, I'll do this when I go and testify. Right. I'll or if I'm getting deposed, when I go into a deposition, first of all, I'm, you know, I've been reading a lot of stuff and they say, show up to impress yourself. Right. Do just show up and be there and be the best that you are right for yourself. But then the next thing is, I'm not trying to impress my clients or my attorney. I'm here to make sure that the other attorney will never hire anybody else after he's gone through my deposition, or I've been on the other side of him. Right. And it's the same with pro bono. There's a lot to be said of how you, cause you know, like I'm on a case right now that I was appointed by the court. And everybody's clearly identified that I have not gotten paid anywhere near what three years of work has been, but that's okay. But I was appointed by the court and that's fine to me. Professionalism shows up when you are not fairly compensated, when you are doing pro bono, are you, are there, do you show up professionally? Do you do the best you can do in all situations regardless, because what I told the attorney, I said, I'm not here any longer to get paid. Obviously I'm not here for the attorney or the clients or anything. I'm here for the judge. I was appointed by the judge. I will show up and I will represent my reputation, not what anybody else did. And I think that, that says more to your own character, how you show up in any of those situations. So if you're starting out, absolutely. I think you should take every single opportunity as very important and put the same method. You know, when, when we all probably started, we started doing stuff for the organization, national organizations, we started offering to speak. We started offering to write articles, to write blogs. You know, any of these things you can offer up information and people will like that, you know, and they will put it out there. And so I don't think it's as hard as people think. Um, and with the pandemic, you, you got to reach out to people and just try to connect in some capacity. Um, I think that this, this podcast has been very helpful for us. It's one of, you know, I've told people before there is not a chance in heck that, but for the pandemic that I would be able to have Kim best and Elliot Hurlin on a podcast because you guys are busy and you're going places, Kim you're in Hawaii right now filming this. We couldn't do it. Oh, that was a secret. Sorry.

Kimberly Best: 45:33

No, I'm kidding. No, you know, I want to go back to the professionalism you described either being a next expert witness or working for the judge. I think in our, in our field, um, it is important to remember that our clients are who we're working for. And I say that because, um, I actually had a, um, a sort of a debate with, uh, another mediator from a far away state who felt like, um, she was working for the attorneys. And, um, I, I think, I think if your, if your motives are pure, your process is pure. You're doing the right thing. Um, attorneys will hire you. They may not agree with you, but if you are fiercely advocating for your clients, which is our job as a mediator, right? Um, not trying to impress attorneys or get new business, I just found as geeky as the sounds and in my life that doing the right thing gets results. So it might not be as quick is, um, you know, being aggressive and, and, um, and, and it's not a quick process. I mean, building a practice and mediation is not a quick process. You're not going to become a mediator and have a whole lot of, um, clients. And there are a lot of people who teach on marketing your mediation practice, because it is hard to get a full-time mediation practice because it's new. That's also why it's exciting because it's new, but keep remembering, you know, why you're doing what you're doing and who your clients are. And, um, the people that you're working for, the people that you're helping to bring together.

Melissa Gragg: 47:14

Well, I think sometimes telling, you know, not everything in life is black and white, right? Some of it's gray, but sometimes to just deal with the black and white issues as just factual. And that it's true, you know, like there's some times where I'll say something or somebody could say something to mediation and then, you know, it's going to be a little bit hard for one party to hear. And it's one other party might be happy with the information, but it just is the information and it is the next step, you know, the ramifications of that data. Right. That's right. I think sometimes just having, you know, in litigation, you're gonna hide that. You're gonna be like, Oh, we don't want to tell them because it's bad for us, but it's good for them. And dah, dah, dah, whereas in mediation, you're just saying, listen, here's the good, here's the bad, what are we going to do with it? And, and that's sometimes ease. It's not easier to hear, but it's easier to hear when you're both together. And then you can see that I'm not trying to be on either one side. I'm just saying that this is the information I agree. I mean, I think we normalized these things that are difficult with conflict and that we normalize it, that these things are life and we bring them into conversation. Um, and then we empower people to, um, have confidence in their decision-making and we explore as many options as possible so that they can come out with results that they're happy with so that they can write their own stories and make their own decisions. Um, so yeah, we're responding and helping them to respond instead of reacting.

Elliot Herland: 48:54

And, and there's, uh, the, the, you know, we've talked about the process and the journey and, and so moving litigators into negotiators and getting them to, uh, to be more interest based as opposed to positional and then moving the parties along and not, and don't give up, don't give up because sometimes people need to take a break. So you go as far as you can, but you don't give up. I had a case where, uh, after quite a few hours and I went from, uh,

Melissa Gragg: 49:48

And Elliot just free. I think so Elliot

Elliot Herland: 49:54

Am I back? Yeah.

Melissa Gragg: 49:57

Was fine. It was like,

Elliot Herland: 50:00

Everybody went spinning. All right. So you go from a facilitative to evaluative and they kind of did that after I made the media's proposal, they all just froze and it wasn't going to get it done. So they took some time off. And then we scheduled a second session. We weren't going to give up. And after a couple more hours, w we did get it done and it didn't require a mediator's proposal. The mediator's proposal was the next jumping off point. Some times a mediator will say, Oh, well, they didn't settle. Uh, and I don't know that those mediators are as successful as those who don't give up.

Melissa Gragg: 50:51

Absolutely. And I think that the empowering the clients to make their own decisions really starts to work well. I know that in one situation we were at an end pass and we had everything else done. And it was just this one thing, but it was kind of a big thing, but it, I couldn't see any way around it. You know, I usually mediate with another attorney or mental health professional. They couldn't see anybody with them around it. The one person that actually got us through was the, the Meeker of the parties. It was the, the more passive par person in the couple. It was, it was that person that finally stood up and said what she needed and what she wanted. And that was the solution. And it was like an aha moment, but it took that person all the way, because our mediations don't last two or four hours, like the mediations that I'm involved in could be months. It could be 10, 20, 30, 40 plus hours, right. To get through all of these complex financial issues. But it was fascinating that at the point that, you know, through all that process, you know, and we were like, Oh, why can't we get this one thing? Well, because we didn't know how it could be solved in her. And once she was able to enunciate how it could be solved in her, it all the pieces fell into place. Right. And then we were like, huh, that's it. And it does sometimes seem like a miracle or an aha, but it takes that many people to kind of look at the same situation and then say, okay, how can we look at this different? How can we see it different? And it's sometimes hard for attorney. I think that from an attorney going from being, you know, an advocator to a mediator, it's harder in their own head and their own actions to stop, like, you know, being so forceful about one party or the other. It's a lot harder for them to sit back and listen and try to be like, well, now what do you think? You know, it's, it's a very, and so they kind of have to, they might know everything. They might have the training, the skills, the knowledge and everything, but they have to, un-train how they have dealt with conflict, Melissa. Um, I'm thinking that, and that is so well said. I'm thinking that you have to become an expert in asking questions, right. But you have to become

Kimberly Best: 53:26

An expert in asking the questions that you don't know the answers to. And I met one time when I was testifying for a medical issue. I was told, never ask a question that attorneys are taught, never to ask a question that they don't know the answer to, but that's the opposite right. Of mediation. You have to be willing to open that can of worms and confident that no matter what comes out, you talked earlier about, you know, something might upset someone else. I mean, you go in going, something will upset something else, but that's going to be the keys. Like that's the start of the process is the upset and what the, what the gift is, what the answers are underneath that. So you have to become an expert in answering questions. I mean, asking questions and asking questions that you don't know the answers to and willing to say, okay, wrong one, wrong one wrong one. Bingo. That's the question that worked. Yeah. It's yeah.

Elliot Herland: 54:26

The question that I like to use is when I'm bringing up a topic that the other side feels is one of their strengths. Uh, I I'll, I'll say what it is that the other side is saying, and then say, okay, so what, what am I missing? What are they missing? Uh, so that I can help explain yours your perspective. Because many times we're in caucus style, people are in separate rooms or on zoom, separate breakout rooms. And so asking people, what am I missing will oftentimes bring it out, letting them know it's confidential. It's also very important.