By Earlene Baggett-Hayes
When parties reach what may appear to be an impasse in mediation, mediators often employ various reality testing techniques. They may ask questions such as, “What do you think will happen if...?” or “How do you think the other side will respond if...?” Another technique is for the mediator to suggest each party step into the shoes of the other side. Frequently, however, parties continue to remain cemented in their respective viewpoints. This article offers another approach a mediator may choose to use: Flip the Script.
When a mediator flips the script, she basically asks the parties to pause and assume a role similar to the other party’s position. Flipping the script doesn’t necessarily occur easily. It is important for the mediator to earn the trust of the parties before suggesting this approach. Trust may be established based on the manner in which the mediator meets and greets the parties. It may result from an even-handed approach displayed by the mediator. It may transcend from the progress accomplished during the mediation process. Trust can be developed in a multitude of ways and has no boundaries.
By developing trust initially, the mediator may have more success encouraging the parties to be receptive to flipping the script. To flip the script, the mediator usually asks the parties to step away from their current issues, and to work with the mediator to address a separate and different fact scenario presented by the mediator. In the reframing of the script, the mediator presents a new fact pattern with slightly similar, but different facts. In the new fact scenario, the parties are asked to switch sides by taking the position initially held by their opponent.
In a flip the script intervention, the mediator reverses the roles and existing positions of the parties. While flipping the script, the mediator provides ample time for the parties to absorb and consider their new roles. Ultimately, the mediator asks the parties (in either joint session or caucus) to discuss their new role and what their interests and needs are likely to be as they discuss the matter with the other side.
The advantage of flipping the script is that the mediator can objectively and neutrally recite a fact pattern that causes the parties to view their positions not from the standpoint of their initial dispute, but from the vantage point of the opposing party. This perspective-taking process enables and encourages the parties to look at the situation from a different point of view. By doing so, parties typically are more creative in generating options and reaching workable solutions.
Below is an example of the mediator applying the flip-the-script technique during the mediation process.
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Scenario: Sexual Harassment Mediation
Molly, an employee, complains that men on the job tell dirty jokes and inappropriately gaze at her. She states that they ask for dates and whistle when she walks by their work area. On most days she is expected to make coffee. She recently received an anonymous call from within the plant and heard heavy breathing when she answered the call. Molly initially demands $150,000 as compensation for sexual harassment.
Mr. Stevens is president of the framing company where Molly works. He states that the company is upstanding and highly-respected in the community. He wants to avoid publicity regarding this issue. The company employs both male and female employees at all levels and has had no prior reports of sexual harassment whatsoever. The company initially agrees to pay Molly $10,000.
Flipping the Script
After extensive discussions, the parties have not made much movement toward resolution. The mediator indicates that each party has effectively communicated their concerns and carefully asks the parties to take a few minutes to step away from the matter and consider a scenario that varies from their own. Oftentimes, it is helpful for the mediator to seek confirmation from the parties that they are willing to trust her and cooperate as she takes them on this journey. The mediator then explains she will present a set of facts and will flip the script to allow the parties to look at a scenario from a different perspective.
The mediator then describes a new fact pattern. In the new fact pattern, a female employee complains that she gets called “honey” and flirting by males at work is rampant. She complains that she has been excluded from after-work activities, which primarily include male employees. She also expresses concern that she is only given menial assignments, like word processing, and has no contact with the public, unlike her male counterparts. The fact pattern also includes a company representative who is very concerned about the company’s image in the community, particularly because of the recent “MeToo” initiatives. The company representative also expressed that he has never received a complaint from the female employee and recalls that the entire company has received sexual harassment training.
Because the mediator has flipped the script in the new fact scenario, Molly, who previously claimed to be the victimized employee, is now the company representative. Also, in the new fact pattern, Mr. Stevens, the company representative, views the case from the standpoint of the victimized employee. To assist the parties in embracing these new roles, the mediator may suggest that Molly treat the company as if she developed and started it on her own. The mediator may also suggest that Mr. Stevens treat the victim role as if it is his mother, sister, daughter, or significant other. Creating a personal connection to the new role each party is playing may make it more likely that they will empathize with the other side’s concerns.
The mediator is now in a position to ask neutral and open-ended questions to assist the parties in carefully considering how the new fact scenario may be resolved by the parties in their newly acquired positions. The mediator may say to the employee (formerly the company representative), “You are now the employee who feels aggrieved, what would you like to see happen? What are your needs?” And the mediator may ask the company representative (formerly the aggrieved employee), “As the company representative, how can your needs be addressed while also addressing the concerns of the employee?”
As the mediator continues to motivate the parties to address the issues from their newly-assigned positions in the dispute, the parties are generally able to move beyond impasse and take a closer look at several possibilities for resolving the matter. Some examples of ideas that the employee (formerly the company representative) may share may be to provide gender equity training, post rules and regulations, provide counseling, request an apology, or set up private areas for employees to unwind, which may place the issue regarding compensation in a more workable sphere.
Likewise, some examples of ideas the company representative (formerly the aggrieved employee) may have include tightening up the company rules, providing an apology, offering counseling, establishing a clear complaint procedure, and providing additional training. Other ideas presented by the company representative may include conducting a survey or making the employees’ work space more private. As the mediator continues to receive various ideas for potential resolution, it is likely that the recommendations presented by the parties will begin to overlap.
Conclusion
Flipping the script in mediation takes the process to a “whole-nother” level. It goes beyond the notion of having the parties momentarily pause to step into the shoes of the other side. It effectively allows for a considered role-reversal that effectively expands ideas and creative problem solving. By flipping the script, the mediator may be capable of turning things around. Exchanging the roles of the parties in a realistic and thoughtful manner allows each party to more effectively review the interests and needs of the other side and thoroughly acknowledge and consider the positions of their opponent. The ultimate goal of flipping the script is to allow the parties to come up with workable ideas and alternatives to resolve the dispute.
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Earlene Baggett-Hayes is as a mediator, arbitrator, fact-finder and trainer. She serves on numerous ADR rosters and panels across the country. She is a member of the International Academy of Mediators and recently received the Michigan State Bar Distinguished Service in ADR award. Earlene is the founder and president of the Law and Mediation Center, PLLC, in Pontiac, Michigan.
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