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How we resolve our disputes

Wednesday
Aug142013

Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.

 

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

Saturday
Apr062013

Neutral evaluation

Sometimes when I am called upon to mediate a dispute, what the parties really seem to be looking for is a neutral evaluation of their legal case or negotiating position. While I am happy to do that for the parties, I make sure to explain to them that this is different than mediation. It requires the parties to present to me, in summary form, most of their case. The parties need to consider whether or not they want to share all of that information with the other side, either directly or through me. If they do, it is really like non-binding arbitration. This can help the parties get a more realistic view of their chances of prevailing at trial and, therefore, promotes settlement. However, if the parties or their attorneys are not communicating well, a mediator may still be necessary to facilitate negotiations. On the other hand, if mediation is attempted and reaches an impasse, neutral evaluation may help to break the impasse.

There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.

Tuesday
Feb262013

The Role of Cultural Sensitivity in Modern Mediation

A guest blog by Dean Vella*

The turn of the 21st century will no doubt be remembered as an age of rapid and dramatic globalization. This coming together of numerous cultures in the marketplace and beyond presents benefits to all. But there are, undoubtedly, also barriers that can arise as a result of cultural differences.

One such complication relates to the resolution of disputes between parties of divergent backgrounds. In order to find workable and sustainable solutions to such disagreements, today’s mediators must employ culturally sensitive courses of action.

The Case for Cross-Cultural Frameworks

Until fairly recently, many mediators have worked in a sort of ethnocentric vacuum, crafting solutions that appeal to their own cultural experiences and sensibilities. For example, observers note that Western culture’s emphasis on finding resolutions that are agreeable to both parties involved in a conflict is not a universally shared objective. In other words, other cultures may view conflict as an honorable way to settle disputes – even, in some cases, violent conflict.

Obviously, that doesn’t mean mediators should seek out or foster conflict. Rather, they must be cognizant of each party’s background. Further, it is critical for cross-cultural mediators to recognize that a “perfect outcome” may be one that in their mind and their culture is not necessarily viewed as the most desirable.

Efforts must be made then to update the criteria as to what makes a good mediator, with an emphasis on abstract thinking and cultural adaptation. Without this re-evaluation, lasting solutions will likely be harder to achieve in the new global landscape.

Collectivism vs. Individualism

One of the biggest disconnects in cross-cultural conflict resolution can stem from an inherent value-based societal structure. Some cultures, for example, may place much value on the rights of the individual, a philosophy that positions personal needs and rights as society’s primary concern. Collectivism, on the other hand, places more value on the interests of the group and less on personal goals and preferences.

This clash of collectivism vs. individualism may be apparent in formal mediation, where a Western framework typically requires that all parties to the dispute be present. However, in collectivistic cultures the term “parties” might itself be up for debate. In such cultures, people who are not directly related to the dispute may be the ones present for the mediation, while the actual individual involved may not be.

In the West, this might be seen as a lack of investment by the individual in question. In other cultures, however, it is pressure from the group that brings about the most change.

Seeking a Palatable Outcome in the Global Age

In seeking resolutions, Western mediators may consider a signed agreement as the ultimate end goal. These agreements are seen as legal and binding documents. Some cultures place far less value on signed contracts, which they view simply as proof that a relationship exists.

Every culture has deep-rooted beliefs that stretch far back. In an increasingly global age, these dogmas can add to the complexity of conflict resolution and present hurdles to reaching a resolution. Instead of attempting to bring about change by imposing their own ideas of what are – or are not – appropriate solutions, forward-thinking mediators recognize and encourage culturally appropriate outcomes.

*BIO

Dean Vella writes about business and negotiation on behalf of University Alliance, a facilitator of online negotiation courses, and effective leadership.

Thursday
Feb072013

Hazardous duty?

It has finally happened. A shooting following a mediation session.  I never thought mediators would have to request hazardous duty pay.  Fortunately, it wasn’t the mediator who was shot, this time.  In this case, one participant shot another participant and his attorney.  But I’m sure it will happen someday, if it hasn’t already. It has happened in courthouses and courtrooms.  Given the widespread ownership of guns in this country, and the lax system (if you can call it that) of background checks before a person can buy one, I suppose it is inevitable.  Someone will take the law into his or her own hands and shoot a mediator.  And the NRA will say it wasn’t the gun’s fault, it was the shooter.  Don’t take guns away from bad guys; get more good guys to carry them.  But has anyone heard of some good guy with a gun (other than a law enforcement officer) shooting a bad guy before the bad guy shoots someone else?  I haven’t.  Besides, owning a gun doesn’t necessarily give you the right or ability to determine who is a good guy and who is a bad guy.  

This blog is supposed to be about how we resolve our disputes, so I won’t get into the gun control debate any further.  But I do need to say that we should all step back and remember what it means to live in a civilized society.  Our social contract says we have given up the right to use lethal force to resolve disputes in exchange for a judicial system whose decisions are final.  Yes, we can still use force and guns in self defense, and for recreational purposes, like hunting.  But those are not legitimate means of dispute resolution.  The idea behind civil litigation is that a judge or court resolves the dispute, rightly or wrongly, the parties put it behind them, and then they get on with the rest of their lives.  The idea behind mediation is that the parties discuss the dispute with the help of an impartial mediator, and find a resolution they can both live with, even if a court could not order it, and then do just that — live with it! 

Americans frequently get criticized for being overly litigious.  Why is that a bad thing?  Eighty to ninety percent of all civil cases are settled short of trial.  Even when litigation is not settled, the parties usually get a full and fair hearing.  I like to think that if Hamlet had lived in the U.S., he would have filed a lawsuit and avoided his existential crisis.  But the shooter in the mediation case has proved me wrong.  Like Hamlet, he chose to face the slings and arrows of outrageous fortune and, by opposing, end them — along with his own life.