bostonmediator1-blog

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Communication Fail

Helping parties bridge gaps is the obvious part of a mediator's job.  Less noticed is the remedial work with respect to things communicated between deal brokers before and during the mediation.  

In hopes of illuminating areas for improvement, here are just a couple of ways parties vex, but could facilitate, their resolution efforts.

Say the right thing the wrong way.  In real estate, it's location, location, location.  In negotiation it's delivery, delivery, delivery.  By this, I mean the "what," the "manner" and "by whom."  Wait a beat and consider whether you'll get more receptivity or a more productive response with you or your mediator as the messenger.  

Make demands that aren't or can't be substantiated (i.e., reasonably explained).  At the outset, responses to demands and counter demands always begin with the curiosity of how they were arrived at.  That's because most of us find solace in rationale.  It gives us a sense that logic of some sort (even if disagreeable) is in play -- a potentially navigable framework. This, then, offers the chance for a bit of traction (logical discourse) and advancement.  Have a breakdown prepared and on hand, even if not excessively detailed.

Even if you're not the one stumbling into an issue like these, it helps to recognize if or when the other is so you can see your way past it and stay the course towards achieving your ultimate objective -- resolution.   

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5 Suggestions To Increase Chances For Settlement

Here are 5 suggestions based on what I see parties succeed with at mediation:

1.  Prepare a valuation range based on settling "today" versus post probable cause, MSJ, trial, etc., or other things in which no one (including you) has yet invested resources.

2.  Make proposals that are based on components you can break down, easily explain and substantiate.

3.  Bring research (case law) that supports and challenges your position - be they judgments or a range of awards.  Be sure they relate factually. 

4.  Be the first to address weaknesses in your position and not just strengths, and incorporate both in the position you take.

5.  Have decision makers with full settlement authority at the table.  

With these, you should be well poised to attain resolution.

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Litigation Exit Doors

Mediation should provide parties new paths toward resolution.

One approach I find very effective is explaining the differences between litigation and mediation this way:  Litigation and mediation are polar opposite approaches to ending a conflict.  Litigation is entirely focused on the past - what happened.  Mediation is about present and future circumstances.  

One you have no control over.  One you do. 

I regularly see parties in negotiations suddenly able to make progress when I ask them to consider how an offer strikes them when viewed with a forward focus - whether it enhances their present and future circumstances more than remaining in litigation does.  

Helping them look in another direction (away from the past and associated comparisons of case strengths/weaknesses, risks/benefits, right/wrong, etc.) shows them there's a different kind of analysis available, and sheds light on new litigation exit doors.

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The Power of Appreciation

Coming together at mediation brings people face to face with their own and projected feelings, and naturally they expect the worst, including the type of sentiments held against them.  They're not always right, though, and mediation is an opportunity to dispel those notions in a way that opens the door to resolution.  

Notably, I often see a perceived lack of appreciation tied to complaints - on both sides.  

Somewhat affirming of this observation (though not negating of the incompatibility of the present relationship) is the positive impact I also often see in response to one party's acknowledgement of the other's assets, contributions, etc.

Admittedly, this share or its reception is not always possible because of the defenses that simultaneously come up with the triggering action.

When an employee, for example however, believably hears the last thing he's expecting - that the employer doesn't hold any personal animosity against him and is actually expressing appreciation for variously specific reasons - it can be cathartic.  Again, it doesn't necessarily negate overriding incompatibilities, but it can lessen the intensity of the conflict and correlative defenses, and increase the likelihood of resolution.

In two recent cases, I witnessed former employees' defensive postures visibly relax when they felt their worth recognized.  True to these sentiments, the employers pursued and arrived at settlement terms built upon the positive attributes of each employee and were designed to transition them progressively. 

In another, I saw a present employee's defensive posture flip to a collaborative, proactive one.  Knowing he was appreciated encouraged the employee to offer a creative plan of action that would not only benefit both he and the employer, but those they serve as well.  

If genuine, well communicated and able to be received, the impact of expressing appreciation can be pivotal.  Feeling better understood can go a long way, too.

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The Emotionally Charged Demand and Its Place In the Negotiation Process

For the record, the record is $10,000,000 among the cases I've handled.  It was a public accommodation discrimination case (restaurant service).

Nevertheless, I realize how hard it is to receive a demand of just about any amount.  The fact is, the counter-demand is typically just as hard to hear. It's important to recognize these are typical, emotional starts to most mediations - and that the vast majority of cases still settle.

In the beginning, both sides are contending with their own and each other's emotional reaction to feeling wronged or that their concerns are being disregarded, whether it's the party making the complaint or answering it;  and receiving a demand that doesn't seem responsive to one's own sense of injustice naturally results in frustration and fear that resolution really can be achieved.    

In my experience, it's usually necessary for emotions (tempered) to be expressed before reasoning can prevail.  It's putting this natural sequence in front of parties that I find helps them better manage these beginning challenges and progress in negotiations.  

Along with experience, my neutrality as a mediator is also very useful in providing this perspective.  The combination leads to greater receptivity towards understanding emotionally charged exchanges and their place in the negotiation process, as well as the fact that emotions don't necessarily signal the end of the resolution process.  They can, in fact, unlock it.  

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Valuing "Win-Win"

People typically consider "win-win" as interchangeable with "ideal."  Really, though, a winning outcome is one that's best among your alternatives.  

So, finality could put you in the win column when the offer outweighs the alternative of protracted (costly) litigation and the possibility/necessity of appeal. Certainty may, too, if the proposal beats the risks inherent in a decision-by-another.  Immediacy has its advantages, as well.  

Intangibles should also be factored in.  Decisions in mediation often involve quality-of-life decisions for yourself, your family, your workforce, etc.  They are personal judgment calls.  Your win may be the result that leaves you on your strongest, most capable footing.

The fact is, you dramatically increase your odds of achieving a win at the bargaining table when you embrace the notion that "better than," rather than "best possible," is a worthy aim.

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Why Non-believers Pray

It can't hurt.

Of course, reason has to prevail in settlement negotiations, but unless you're sure you're at a solid impasse, it doesn't hurt to ask yourself, Could one more move get me the finality I came for?  

Ask yourself, Will the difference between the last and next offer be more or less than my expenditures between now and my next negotiation opportunity?

Carefully quantify and evaluate the results of things not playing out as you expect them to.  

Factor in a decision-maker who could be contrary to an element of your burden of proof or defense.

The trick to making a satisfying last attempt is to make one that really counts.  Make it something the other party would find difficult to refuse, even if it's slightly beyond your reach, but still within reason.

Thinking past what you think is the harm in making one more move could make the difference, and the deal.  

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Face To Face Dynamics Factor Significantly

Transitioning from conflict to resolution involves a lot of give and take, not the least of which is the giving and receiving of information.  

Although there are circumstances that practically call for someone's exclusion from settlement discussions, they are exceptional.  Face to face communicating often can not only provide a cathartic (settlement-enabling) opportunity, it can also be most informative.  

We learn from birth to inform and be informed by gestures, tones and facial expressions.  These are part of the dialogue, and communication in their absence leaves out some of the most vital parts of the exchange.  It can be the very cause of a mediation breaking down or failing to get off the ground in the first place.  

The importance of settling, finality and avoiding litigation and all of the other potential benefits mediation offers should not be undermined by foregoing or underestimating the investment of personal participation.  Do not, therefore, be easily discouraged or overly pessimistic about the prospects of mediation leading to settlement.  

Personal dynamics ought to be given their chance to have an impact at the table.

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What's In Your Demand?

Demands - sometimes they're based on calculated costs, sometimes pure emotion, and sometimes they have nothing to do with the dispute.  For example, I've heard them tied to credit card debt, the cost of tuition, and even the price of re-siding one's house.

Regardless, knowing the basis for the demand (as well as counter-demand) may be one of the most essential ingredients to a satisfying outcome, and mediation provides the opportunity to attain this clarity.

Not only does this serve parties as an anchor in their negotiation, it lets them know when they've reached a stopping point and can drop the rope, so to speak.  

Even if the impasse or endpoint isn't exactly at where they wanted to be, they can consider something "close enough."  This is because identifying what the number symbolizes makes it conceptually easier for parties to measure and conduct their risk/benefit analysis.  Incidentally, it also opens up possibilities for creative substitutions.

When I mediate, I work on this from early in the session and throughout - with each person at the table - because time and time again, I see it raise the value of satisfaction in the process, and the outcome.  

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My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men's hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul.

 Mahatma Gandhi

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Resist Resistance

What you know at the start of a mediation session is very different from that at the end.  

This is why and when you ought to wait to decide what's possible.  

Parties want the process to be over quickly, but that's usually antithetical to reaching the best outcome.  Prepare yourselves and/or your clients for the time it takes to mediate;  to give parties the chance to exchange positions (arguments), reason through them, their choices and their consequences, and make well-informed decisions.

Along the way, you should be able to trust that your mediator - a neutral - is working through that reasoning with you.  Be open to his/her questioning and challenges, and try to resist becoming closed or defensive to disagreeable discussions.  You may be moved beyond your expectations and comfort zone, but it's to help you consider all possibilities and which is best for you.

The end result should be an outcome earnestly arrived at on terms you've reasoned are in your best interest.

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The Sense Of Mediated Agreements

It's one thing to say you'll let the judge decide.  It's another to say what is decided.  Still another to agree with it.  Then, even after the gavel comes down, there can be issues over interpretation, appeals, monitoring, compliance, etc. 

So, letting someone else decide doesn't appear to lower risks, but rather may multiply them.  

When you consider options to lower risks, consider the sense mediated agreements make.  The unpredictability of a decision-maker is replaced with deliberate agreement.  The imposition of an outcome is replaced with a personally (and meaningfully) crafted one - supplying built in buy-in, to boot.  The buy-in also tends to engender a durability in honoring the terms.

Most would agree that immediate, certain, and lasting outcomes pose low-risk and high-value potential.  For these reasons, mediation ought to be confidently encouraged among choices of remedies. 

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Today, sees the launch of the National mediation Awards 2013, sponsored by Executive Grapevine. The awards are a celebration of the important role that ...

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Propelling Questions

In mediation, I find one of the most useful things to identify is where the party is stuck. Sometimes the focus is on a need to right a wrong. Sometimes there's a lack of focus - someone wants to but doesn't know what s/he wants to move towards, or how.

Pinpointing this helps people get "unstuck" because the realization leads to meaningful questions and clarity about options for resolution; and those are questions that propel the process.

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Nepotism May Not Be Illegal, but Unfairness Can Still Cost You

Nepotism happens.  Although it may not necessarily be illegal, it can still cost employers.  Fairness can be the antidote.

In a recent case between a current employee and his employer, the dispute appeared to be a fairly common consequence of hiring a new (outside) supervisor brought in to design and implement a company reorganization. Rifts are hard to avoid.  Here, however, it may not have been so unavoidable.  

Despite work that was very highly regarded for years, without issue, half of the employee's self-designed responsibilities were summarily reassigned by a new supervisor to a new hire of his own who was relatively young (early 20's) and his former co-worker.  Let the issue-spotting begin.

Putting the technicalities of "nepotism" or "discrimination" aside, it's possible to see the vulnerabilities for a complaint for differential treatment. The new hire's generous assignment and attendant status, along with his sense of entitlement and peacocking in the office without impunity were fodder for a filing.  Add to this the new supervisor's adverse behavior toward the employee after the new hire was counselled by higher-ups, and the employee feels retaliation, as well.  He ultimately filed a formal complaint.  

The issue of legality quickly fell away in the mediation of this case. Consistent with his pre-filing stance, the employee referred to the words "fair" and "fairness" as all he was (ever) seeking. There was no discussion of monetary compensation.  No request for retribution.  He took complete responsibility for and asked for no help with managing his relationship with his new supervisor.  He simply wanted to be able to rely on "fairness" from his employer as the standard to which all would be held.

The moral of the story is that unfairness very often involves a drain of resources by one means or another, so wisely remember fairness in defining employment standards, and police accordingly. 

For more to consider on the impact of nepotism, cronyism and favoritism, read:

http://www.scu.edu/ethics/practicing/focusareas/government_ethics/introduction/cronyism.html

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The up close and personal personalities that come through in mediation often hint at - if not directly demonstrate - ways people learned to manage and resolve conflict in their early years.  We adults do not necessarily leave these coping manners behind, and they become most evident in the face of adversity.

Thanks to my bottomless curiosity about social interaction, I came across the organization, Roots of Empathy.  Its philosophy resonated with what I've come to believe, and maybe you have, too - that empathy is essential to advancing social intelligence and engendering successful interaction.  

It seems to be a movement that's taking hold.  If for no other reason than to satisfy your own curiosity, take a look.

Visit http://www.rootsofempathy.org/.