Visualization and "As if" negotiation.
I have been thinking about the applicability of visualization and "as if" social activism to mediation. Maybe mediators focus too much on having each party focus on themselves: on their own interests, and on trying to understand and appreciate the other party's interests.
Maybe mediators should focus more on the settlement itself: by having each party visualize the settlement, and negotiate "as if" there was no choice other than to settle.
At some point in the mediation, maybe I will call a timeout and have each party visualize the settlement. No doubt they will say, "What settlement, we are not even close!" But I will say, visualize it and tell each other: What it feels like. What it has accomplished. What it permits the parties to do going forward. Maybe even what it looks like in substance, but if I go this far, I would want to hear more about what the substantive terms do for each party, how they make each party get something important, rather than what the precise terms are.
Also at some point in the mediation, maybe I will call a timeout and have each party agree to negotiate in a way "as if" there is no BATNA, no alternative to reaching a settlement. Michael Pollan discusses "as if" behavior in a recent article about what each person can do to help deal with global warming. Essentially each person must suspend disbelief that social change can be accomplished one person at a time. Each person must act as if each person's personal attempt at living a more green life will actually retard global climate change. If everyone acts "as if," then one by one our green decisions accumulate, and we all will accomplish social change. If everyone says that no one person can affect global warming, so why bother, then social change will not happen.
I think everyone has had the experience of being in a situation where you decided to act in a way where you would not accept an available alternative. Maybe something as simple as you are running a race and you are getting tired, and you know you can drop out, but the thought triggers a wave of shame and you say to yourself, "no, I am not going there."
If you want social change, act as if what you do will achieve social change, as if what you do matters. If you want a settlement, negotiate as if there is no alternative, as if the settlement matters.
If I pursue this stupid mediator trick, then my main job becomes making sure each party is negotiating "as if."
Saturday, April 19, 2008
Stupid Mediator Tricks (4)
Wednesday, April 16, 2008
Stupid Mediator Tricks (3)
Something Mnookin points out in Beyond Winning grabbed my attention. He stated that a productive negotiating posture for parties to adopt is to maintain a dynamic between assertiveness and empathy.
You should maintain assertiveness when stating your own interests and objectives, showing that you take them and your arguments seriously. You should maintain empathy for the other party when the other party negotiates, to understand the other party's interests and objectives by adopting the other party's perspective, seeing what the negotiating table looks like from the other side. I was struck because this same dynamic between assertiveness and empathy was what I have been telling my son is the the essence of leadership.
There is precious little leadership training in high school. This is not viewed as an academic subject, at least for students at this age. Doesn't make sense to me because I find it interesting to discuss with my son.
I might have a conversation with my son that goes like this: what would make people want to listen to you and follow your recommendations? By making sure, first, that you really know who it is you are talking to and where they are coming from, so that you understand their questions or needs in the way that they feel or understand them; and, second, by not being wimpy about where you stand and what you think. Thoughtful yes, but wimpy no. (But don't go over the top).
So now, I think I am going to start some mediations by saying I am looking for some leadership to be able to settle this conflict. Ah, making leaders, that's what mediators do.
Monday, April 14, 2008
Why Mediation is Not a Pre-Trial Trial
The biggest impediment to a mediated settlement in commercial cases is the inability of parties to regard mediation for what it is, as opposed to a pretrial mini-trial.
Parties settle conflicts in mediations, they don't win mediations. Litigators who appear at mediations often don't sufficiently appreciate this, certainly not as much as their clients. Which is why I will probably start making even more certain that only those client representatives who have sufficient stature to think for themselves and authority to act for the client appear at mediations.
Mediations are not mini-trials because mediators are not judges or juries. Thankfully. Mediators do not stand in judgment, and they have no institutional or personal competence in deciding who should prevail in a conflict. Indeed, mediators generally shun the notion that any party should prevail in a conflict, as if conflict was sport.
To the extent mediators do their job, they help the parties themselves discover for themselves meaningful ways to accomplish their goals without undergoing the time, expense and risk of litigation. Litigators seek damages, and perhaps another judgment that they can list on their resume for the next time they pitch a general counsel for a beauty contest. Clients want to a reasonable, risk-adjusted settlement to a problem, so that their business can focus more on profit generation than liability containment.
While there are cases that go to the heart of the way a firm conducts business, even these cases are typically better settled than pursued to a win/lose result. Settlements often become ways for a business to create goodwill even as it eliminates a risk.
Mediators are in the goodwill generating business, and litigators often don't appreciate how much goodwill can be created out of conflict.
Friday, April 11, 2008
Mediator as Agenda-Buster
Is it unrealistic for a mediator to suspect that every party to a mediation is pursuing a hidden agenda?
I always try to be overt in disclosing my mediator's agenda, which is to be a passionate advocate for settlement. I tell parties that I will seek to have them transcend any barriers to settlement that arise in the course of the mediation. I will try to understand what they are saying and acknowledge where they are coming from, both to help the other party understand all this, as well as to be able to suggest ideas or options that might create value for both parties.
These settlement barriers can be overtly on display, such as a party feeling hurt, having a specific and stubborn dollar bottomline, or having little repsect for the other party. These are fine, insofar as they are out in the open and can be addressed, whether successfully or not. But what is a mediator to do when things don't seem to add up, in the sense that a party seems to be taking a position that seems extreme or at odds to that party's declared interest and objective. "Who you gonna call?"
Agenda-Buster!
One party may want to stretch out the conflict in order to defer as long as possible the recognition of a loss for accounting purposes. This conflict will simply not be settled here and now. Another party may insist on a lowball settlement because it is judgment proof and believes the other party will never be able to satisfy any judgment it might obtain. I can talk about ethical conduct until I am blue in the face. Another party may have an emotional attachment to, or a shameful history with, the other party to the conflict that the party will not acknowledge that is keeping the party from being reasonable. The other party to the conflict is telling me this in private caucus. Is it the other party who is pursuing the hidden agenda?
You begin to sense what is going on in a private caucus session and you call the party on the carpet, as gently as you can. The problem for me and the mediation is, I have become that party's adversary now. Why? Because I am an advocate for a settlement, and the party's hidden agenda has become my adversary.
If a party in confidential caucus doesn't permit me to acknowledge this hidden agenda in open session, then I simply have to continue to work on that party in caucus. Persistance, patience and maybe a little persuasion to keep the hidden agenda from creating the negotiating impasse. It is a matter of mediator pride, if little else.
Friday, April 4, 2008
Mediator as Advocate for a Settlement
I find that the best way for me to be actively neutral in a mediation is to regard my mediator role as someone who has to be a constant and passionate advocate for settlement.
If I can't be actively neutral, I am not working hard enough to promote settlement. If I am not a constant, even at times annoying, advocate for settlement, then I can't be actively neutral.
What do I mean be being actively neutral? Really, this is the core obligation of a mediator. Each party must feel that it's assumptions and positions are being actively challenged by the mediator in a neutral manner. In part, this neutrality is achieved when the party sees the mediator treating the other party in a like manner. But much of a mediator's challenges are done in separate caucus, where the parties can't witness the other party's equal treatment. So, how does a mediator try to have parties tear down their own barriers to settlement, and consider what are uncomfortable options that ultimately prove to be fruitful avenues to a fair settlement? Especially in commercial cases where each party is represented by a staunch advocate that is prepared to press on with litigation? By being a staunch advocate as well, the only one in the room that is an advocate for a purpose and not a party.
Truthfully, I have very few reliable guideposts in mediation. I really will not know what each party's litigation strategy is, even if I ask in caucus. I really will not know what each party's real bottom line is, even if it is loudly announced in open session. Really, all that I have to guide me as mediator is patience and a strong disposition to advocate for settlement, especially when the mediation operates in the shadow of litigation. Of course, often enough, the parties will reasonably assess their interests, objectives and likelihood of prevailing in litigation in a manner which leaves no recourse for settlement, at least until the course of the litigation causes them to reassess. For a passionate advocate of settlement, you win some and you lose some, just like passionate courtroom advocates.
Friday, March 21, 2008
Stupid Mediator Tricks (2)
One of the justifications of mediation with a neutral over straight negotiation between two parties is the ability of the mediator to reduce strategic behavior. That is, if in a negotiation without a mediator a party is engaging in negotiating tactics that are frustrating the settlement process and the other party objects, then the conflict simply moves to the meta-level of whether the negotiation is proceeding in good faith. If a mediator calls a party on the carpet for engaging in divisive tactics, preferably in caucus, the mediator's impartiality can have greater effectiveness.
But, of course, all parties use negotiating tactics that seek to promote their own welfare in every mediation, and the mediator has to be alert to not only recognize strategic behavior, but also to be frugal in calling timeouts over the overly self-interested negotiator. No one likes a nag, and a mediator loses all moral authority if the mediator nags to no effect. What to do?
Part of the mediator's responsibility is to have the parties not only identify their own interests and objectives (and understand how the current conflict is denying them the ability to achieve them), but also understand the other party's interests and objectives. If a party understands the other party's interests and objectives, a party can understand how the conflict is a joint problem, in which any proposal must not only advance the party's interests but also satisfy the other party's interests. The parties are connected by a conflict, which is a social bond as much as any other.
Sometimes, I will ask a party, whether in caucus or in open session (although usually first in caucus) "How does that proposal (or statement, or question etc.) solve our common problem?" The usual answer, which need not be spoken, is that it doesn't, it merely advances the party's own self-interest. If I get the sense from the opening statements that the parties are too entrenched in advocacy mode (say 10 out of a scale of 10, rather than the normal 8 out of 10), I will use the "summing up" mediation tactic in open session, in which I try to replay back to each party what I heard each party say, but I will try to massage my reading with an interpretation that identifies certain interests as shared interests, and the conflict as a common problem. Then I will finish this summation with the question, "I am now interested to hear how we are going to solve our common problem."
Usually this invites slightly pained expressions from the parties. But as my high school athletic trainer used to say, "If it hurts a little, that's good!"
Friday, March 14, 2008
Pity the Poor Misunderstood Mediator
I have been thinking some about the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report, which I have reviewed in prior posts. Boiling things down a bit, the most interesting finding is that, generally, users want mediators to be more active, prepared and willing to venture from facilitator to evaluator. Maybe there is a fundamental misunderstanding among users concerning the role of the mediator in the practice of the art of mediation.
Of course mediators are more than willing to be active, but mediators are sensitive to the risk of being too active, which would impinge upon a central tenet of mediation, party self-determination.
Likewise, mediators are professionals who enter mediations having read party submissions and prepared with an understanding of how the clients have described the conflict. Mediators also often have subject matter expertise that they can bring to bear to provoke a thoughtful consideration of issues raised by the conflict. But mediators understand the risk that that they can be over-prepared. Mediation is, in many ways, a performance piece in which the parties themselves are the central actors. It is the performance, the give and take of the actual negotiation, which yields the settlement, and mediators should not rely too much on papers prepared in advance by the parties. These papers are still "fight" pieces prepared by the parties in advocacy mode before the mediation begins, and the mediator does not want these position papers to take a greater importance than the clues and openings that can be summoned once the negotiating process begins. Pre-mediation papers are never prepared in a collaborative manner, and I can't tell you how many times I have received feeble attempts to comply with my request to set forth in these papers a confidential statement of what a party would accept as a reasonable compromise.
As for facilitative versus evaluative modes of mediations, I find that I try to do what I think the mediation needs. Mostly, I facilitate, using whatever techniques I can think of to get parties to think in terms of solving a joint problem, as opposed to winning a joust (yes, even stupid mediator tricks). But here's the key for me: I tend to find that the surest sign that I am floundering in a mediation is when I start to become more evaluative. When I offer my evaluations, or succumb to the request to provide them, I am forcing the mediation, trying to accelerate movement, not focusing on the parties' interests and objectives enough to help the parties recognize and claim common ground.
So pity the poor misunderstood mediator who is just trying to be a mediator, and not a hero.
