Be The Negotiation Coach !

As I’ve mentioned before, I teach a course “Mediation Theory & Practice” in the UNC Greensboro Masters program in Conflict Resolution, and during a recent mediation role play, I was reminded about our job as “negotiation coaches.” In the mediation, a proposal was framed as either a sum of money or an apology, but not both. The claimant had expressed strong interest in an apology. At this point, the claimant and counsel became focused on the form of the offer, the “either/or” aspect and the mediation slowed. The mediator was able to help move things forward; however, in our debrief, participants noted the challenge around the form of the proposal.

This is where we can play an important role as negotiation coach. We can and should help all participants work through proposals and remind folks that they don’t have to respond exactly in kind to any proposal. While the goal is certainly to get people talking “apples to apples” I believe it’s okay if it doesn’t start out that way. And we can help remind people that they can form their own proposals and don’t just have to respond or react to what has been presented. When people want to make a “different” form of proposal or offer I also encourage them to respond to the initial proposal. I ask them to do both as alternative proposals. My sense is that the more choices people develop, the greater the opportunity becomes to find a settlement range.

So, be the coach at mediation and you might even get a long term contract!

First Impressions

I attended a Memorial Service recently and one participant (let's call her Sally) shared a story about the deceased (let's call him Jim). Sally explained that she first met Jim at a dinner party. Sally was seated, Jim stopped at the chair next to her and then moved to the other side of the table. From then on Sally thought that Jim did not like her and, thus, she avoided contact with him. Sally never got to know Jim. After Jim passed away, Sally learned that Jim had a very bad back and that there were only a few chairs that were comfortable for him. Jim had moved to the other side of the table in search of a better chair. Not to get away from Sally.

This story confirms one aspect of forming first impressions. We use first impressions as a filter and if we believe that someone doesn't like us, then we behave accordingly. We avoid this person and, thus, reinforce the distance and never really get to know the person. And talk about quick. I heard an image consultant recently note that the Millennial generation form first impressions in a second, that Generation X gives folks 30 seconds and Baby Boomers an entire minute.

So, depending upon who you are working with as mediator, your time in which to make a first impression goes from micro quick to a long full minute. You get to "create" your first impression in many ways including how you dress, your facial expression and other body language, and by your tone of voice. If you are already seated in a conference room - do you get up and shake hands? I encourage you to use this time well and remember that the impression you form about another could just be about a chair!

Cool and Crisp

Fall is in the air? It is a cool and crisp October morning. With the change in season, this is a great opportunity to consider your mediation practice. I’ve written before about being a reflective practitioner and with a “chill” in the air – let me ask.

What are you doing to make your mediation’s “cool and crisp?”

Here are some questions for your consideration:

Do you begin your mediation in the same way every time? Do you use the same language? Do you sit in the same place? Do you always ask one “side” to go first? Do you ever engage in cross talk between the participants before going to caucus? Do you ever get participants back together during discussion other than at the end of mediation? Do you take notes at mediation?

The list goes on, as it should, because there are a myriad process choices as mediator. I encourage you to get out there, enjoy the brisk Fall weather and make every mediation cool and crisp!

Create Space for Emotions in Mediation

A recent newspaper article encouraged workers to use their emotional intelligence at work. The idea was that we should not hold all our emotions “in” because if we do so, we may not be able to build relationships with the people around us day in and day out.

Also, for those who follow NFL football, Steve Smith of the Carolina Panthers, who just finished a 2 game suspension for punching a teammate (Lucas) in practice, reported that he and the player he punched now have a cordial and building friendship. Previously, these two players were seen to be at odds. So what changed? Smith says that he previously did not like Lucas because he believed that Lucas did not like him. (Same from Lucas.) However, after a team meeting where everyone had a chance to say their piece. It turned out that Smith and Lucas did not like each other because they thought the other did not like him. Talk about a self fulfilling prophesy. With the air cleared the team and teammates came together.

Thus, if we take these two ideas together and add them to our work as mediators, then be sure you check in with participants on an emotional level in mediation. Consider how you can create a comfortable space for participants to express how they feel and then “manage” the emotions if necessary. Mediation in the litigated case is often the participant’s “day in court” so it can be essential to provide an opportunity for emotions to help with the resolution.

Conflict Defined

Each Fall semester I teach a class – Mediation Theory & Practice - for the Conflict Resolution Department at UNC Greensboro. This is part of a Masters program and the students come from many different walks of life with a common interest in conflict resolution. I also teach this class online. In our first meeting I take the class through an exercise called “Defining Conflict” in which we consider our perspective on “conflict.” The last step in the exercise is to come up with one word definitions of conflict that are positive or constructive in nature.

Check out this year’s great list of words:

Catalyst – Communication – Creativity – Growth – Maturation – Rethinking – Evolving – Motion – Quest – Adventure – Relationship – Building – Change – Revitalization – Growth – Opportunity – Revolution – Renew – Resolution - Restoration - Bridging - Enlightenment - Dialogue - Disentanglement – Engagement – Movement – Workout – Differences – Learning – Curiosity – Understanding – Transformation – Challenge – Progress – Juncture – Path

So, the next time you get discouraged in a mediation, pull out your handy pocket note card with these words on it and then get back to work!

Labor Day Reflection

For many folks, this past Labor Day week-end is a recognition and celebration of work! I started thinking about our work as mediators and how should we celebrate? Initially, I thought about “what is mediation” and then realized it’s not about “what,” it’s about “how.”

Here’s my take on the “how” at a macro level with Labor Day in mind. As mediators we practice both a science (the science of negotiation, personal interaction, etc.) and an art (intuitive understanding, empathy, etc.). For me, being a mediator is a craft. It is something I continually study, seek to master and improve. I can find new ways to conduct the process as long as I am reflective about what I do. Be a reflective practitioner.

Here’s an easy way to give this a try. The next time you serve as mediator; do something differently from how you usually do it. It could be as simple as how you introduce yourself or how you describe your role as mediator or . . . You’ll think of something and when you do and put it into action – then you are being reflective! This first step should lead you to consider why you do the things that you do as mediator. We know that there is a reason for each word we chose, each caucus we direct and the list goes on and on.

And in your reflection, in your consideration of the “how” and “why,” you celebrate that which is mediation. Enjoy your days of labor as mediator!

Study Says Plaintiffs Should Settle!

In the mediation of a litigated case, there comes a time when participants consider the potential outcome at trial or hearing. This is the part of mediation where you, as mediator, help them sort through and consider their BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) and MLATNA (most likely alternative to a negotiated agreement). With this analysis in hand, participants are then usually able to make more informed choices about how to proceed - settle or go to trial.

Now there is another tool to add to your mediator toolbox when discussing the case with plaintiffs. A soon to be published study found that settling was better for plaintiffs than going to trial. According to study co-author Randall L. Kiser - “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more.” Here's a link to a New York Times story on the study - Study Article. The study reviewed 2,054 cases from 2002 - 2005 and found that plaintiffs made the wrong decision in going to trial, i.e., obtained a lower economic result as compared to an offered settlement, in 61% of the cases while for defendants, the figure was much lower at 24%.

So, next time you are in private caucus with the plaintiff and counsel, you might ask if they've heard of this study and it's results. It might help participants rethink their perspective on the case and create further opportunity to explore settlement.