MARKSPOWERS LLP
Donald (Tad) Powers, Esq., Michael Marks, Esq., & Adam Powers, Esq.
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NEGOTIATORS’ AND MEDIATORS’ TOOLKITT Collected from the Wisdom of Many Mediators and Negotiators by Tad Powers February, 2009 Effective negotiators and mediators, like the best practitioners of all arts, go beyond theories and models to apply to each case a unique blend of technique, knowledge and experience. Tools are used in countless combinations and permutations to meet the varied needs of environmental, land use, personal injury, divorce, business, family, employment, and other disputes. This is a collection-in-progress of tools and approaches used by many creative negotiators and mediators. The author claims no credit for having originated any of these tools. Thanks and appreciation go to those who did. Additions are welcome! Feel free to email to Tad Powers at tad@markspowers.com. NEGOTIATION Have a road map for the process so you don’t get lost, but explore and adjust to the needs of the particular case and people. One way to map the process: Prepare Identify Issues Exlore Underlying Interests Generate Options for Mutual Gain Reality-test possible solutions. Agree on solutions, steps for implementation, mechanism for resolving future disputes. Prepare. Who are the interested parties? Who has a stake in the outcome? Who needs to be at the table? What are the issues? What are your underlying interests/needs? What are their interests/needs? What timing/setting/preliminary communications will help? Build trust. Establish rapport. Get to know others better. Loosen your grip on assumptions about them. What is your BATNA? Theirs? How could you improve yours? What additional info do you need? Are you emotionally prepared to maintain respect for your boundaries and theirs, separate the people from the problem, consider other perspectives, focus on the future? Recognize your own feelings about the people, the process, the issues, and manage your emotions in a healthy way so you don’t unconsciously subvert the process. Reflect on the human need to satisfy more basic needs before functioning at higher levels. Provide for sense of Safety for all parties. Allow time and space for Expression by all parties, so they (and you) are free to do analysis and creative problem-solving. (Randy Lowery) Practice Awareness: Of what is happening in all negotiations in your life. What are you trying to communicate? Is it being understood? What is the other trying to communicate? Are you sure you got it right? Can you ask? What’s your body language? What’s theirs? What kinds of emotional/interpersonal dynamics are involved? What interests of yours are being affected? Theirs? How is your identity affected? Theirs? How do you feel about this? How to they feel about it? What are some likely outcomes of this interaction? What will be the effect on our relationship? Other relationships? Differentiate: Interest-based negotiation from rights-based negotiation. Negotiating positions from underlying interests. Distributive bargaining (fixed pie, zero-sum) from collaborative problem solving. Legal standards from norms, values, mores. Your feelings from theirs. Clarify and Agree on Process: Timing, place and parties attending sessions- Ground rules (re interruptions, dealing with high emotion, caucuses, future focus) -Identify key issues- Explore Interests-Test Assumptions- Develop Solutions- Commitment to Agreement-Degree and Nature of Party/Attorney/Expert Participation. Convert positions to interests. "I want $200,000." may be harder to work with than "My son needs an operation". Explore Interests. Ask open-ended questions- what's beneath that- why? Why is that important? Help me understand that better. The more you explore and identify underlying interests, the more material you have to fashion solutions. Create Mutual Gains. Exploring interests in depth creates more raw material for possible solutions. The goal is to expand the pie, optimize gains for each party. Create value by meeting high-value needs at lowest cost to other party. Trade across values. Create Value by Creative problem solving/ Break problem into component parts. Brainstorm. Use the collective knowledge and skill of all participants to generate options, create value. Use the power of free association. Agree explicitly to generate as many ideas as possible in a given period of time without criticism or judgment of any idea. Give permission to invent without commitment. When brainstorming is by agreement finished, then review and reality-test ideas for utility. Written Settlement Agreements should be realistic, include incentives to perform, satisfy the parties’ needs for a sense of fairness, adherence to agreed standards. Include cost-effective mechanisms for resolution of future disputes, such as mediation and arbitration. Active Listening- use eye contact, body language. Match pace, rhythm, mirror what is heard and felt, ask follow-up questions, clarifying questions. Play back what you heard- so other party feels heard, understood, recognized. Check in to see if you are being heard. Separate the people from the problem. Feeling or thinking differently is (usually) not about right or wrong, it’s just about differences. Acknowledging that you hear the other is not agreement. Asking for acknowledgment that the other hears you is not asking for agreement. (Roger Fisher) Reverse role play- how does other feel? What do you appreciate about other's goals, approach? What do you think the other does not yet understand about your position/interests/needs/you? If stuck-go back and work on an earlier step in the process until you are able to progress. De-escalate high emotion. Acknowledge feelings- give them air time- then move on. Name feelings; acknowledge that feelings will come and go and it may be wise to let a wave of feeling move on a bit before returning to the work. Step down intensity by responding at a calmer level in choice of words, body language. Slow pace of speech and movement. Be silent for a moment. Take a break. Caucus. Change the environment- stand up- switch sensory mode, e.g. from auditory to visual. Use flip chart. Diagram situations, alternatives, and solutions Recognize differences in communication styles, pace. Acknowledge differences without judgment. Not all "argument" is bad. Is new information being exchanged and heard, or is heat shutting any of the parties' down? Allow for different cultural, gender, personal communication styles. Be aware of and adjust for different cognitive, affective styles, social and emotional developmental levels. Mutualize- both parties are in this, both want solution. Remember and invite others to Step to the Balcony- take perspective on self in conflict, see the problem from a new angle. Normalize- worthy people have experienced this problem. Being in this conflict does not reflect badly on you. Or them. Redirect the discussion and energy. “ I thought we were talking about....... Tell me what you want, not what you don’t want…….. I’m lost- help me understand that better.” Restate more positively. Reflect/ Empathize- You seem to me angry/sad/confused. I just want to check in. Can you tell me what you’re feeling?/thinking/what’s going on for you........ Use “I” statements instead of “you” statements. I feel that….It seems to me that…… I think………When that happens, I feel……… Instead of You never listen to me……You always do that…….You think I’m…… Assume Virtue- agree to assume no bad motive and then explore concerns. Agree on time out from fighting for fixed period- hours- days. Before this impasse- what worked? Reflect. Negotiation and mediation skills are like any other skills- they improve with practice and reflection. Take time after each negotiation or mediation to reflect on what happened, what you did, what others did, how it felt, how the dynamics changed, what you might try differently next time. Study the Psychology of Negotiation, Game Theory, Decision Analysis. Understand the nature of selective perception, reactive devaluation, risk aversion and attraction, emotional repression, human needs for autonomy, connection, recognition. Enjoy being a student of the human condition. MEDIATION All of the Foregoing, Plus: Define Mediation for Parties: Trained neutral helps parties communicate, explore interests, identify issues, create options and strategies, and negotiate agreements; Confidentiality, Effect of UMA; Terms of Agreement to Mediate Make Mediation Models Transparent: Evaluative, Facilitative, Transformative, Narrative. Mix and match to suit, but get party buy-in before using. Agree on Mediation Plan Before Time, place, who will attend, authority Pre-mediation statements exchanged? Confidential? Additional info exchanges prior to mediation? Terms of Agreement to Mediate Multi-Session v Single Session Caucuses with Attorneys Only Use of Experts in Mediation Caucus v Joint Session Caucuses between sessions Mediator follow-up Plan process together. Get buy-in to process, changes in process. Help parties understand and continue to refine: BATNA- Best Alternative to a Negotiated Agreement (litigation?) Chances of achieving? WATNA- Worst Alternative to a Negotiated Agreement. Costs and risks. BATNA and WATNA assessments require rigorous analysis: Legal issues and odds of winning Effect of litigation on relationships Effect of litigation time frame, allowing for appeals, possible remands Direct litigation costs: attorneys’ fees, expert fees, court reporters, etc. Lost opportunity costs; what personal, business relationship opportunities are displaced by the time and other costs of litigation Invite parties to note new information, questions, while other party is talking, rather than interrupting. Each party has power to make the mediation fail- can’t control other but can control self- responsible for self. Empower/ Encourage/Recognize- the keys to transformation in conflict. Use language of responsibility instead of blame- Taking responsibility is empowering. Blaming hands over control. Educate re rights and responsibilities, costs and risks- subject to lawyer’s advice. Validate the parties until they can move on to problem solving. Validate in caucus- acknowledge feelings- what party wants, needs, - don't validate negatives toward other or self- focus on interests, problem. (Olivia Ruel) Use momentum. Work from small agreements to larger- build on small successes. Future focus- don't allow parties to mire in past. Focus on the future and the positive- what parties want, not what they don’t want. (John Haynes) Reframe negatives into positives. “My spouse is too cheap to pay for summer camp for the kids” could be “It sounds like you care a lot about the kids’ summer experiences….” And “I hear that your spouse is very careful with, maybe even worried about, the family finances, and you may not always agree on priorities”. Summarize- Review progress- Where are the parties in the process- in the problem-solving. How are they doing? Schedule in multiple shorter sessions to allow time for processing emotion, avoid fatigue, use outside resources, do homework, consult attorney, therapist, accountant, etc. Keep path to future mediation open- provide a safety net. If issues on table can’t be resolved now, can we work on other issues to improve the parties’ situations, e.g. informal discovery to minimize litigation costs and delays, considering binding arbitration instead of litigation, negotiating high-low agreements to hedge against risks of wildly high or low litigation results? Show confidence in the process. Commit to not giving up and changing gears when stuck. Give parties opportunity to practice successful communication/ problem-solving skills. Use intuitive skills- see the drama- get the emotional rhythm. Hear the parties' stories. Let the parties know how you see the stories, ask how they see them, ask if they can consider alternative story lines. Help them make shifts in their narratives re facts, identities, and feelings. If a party believes the other party intends to harm/control/disrespect them, the result is defensiveness. Help the party make room for the possibility of other motives that are not so threatening. Be transparent- if what we’re doing not helpful, tell me; tell me what would be helpful right now. Understand Sources of Mediator Influence (Robert Cialdini) Liking-Similarity- Take time to find common interests, background, likings. Authority- Establish legitimacy – credentials, experience. Scarcity- Emphasize what will be lost if mediation or settlement rejected. Consistency- Get small commitments- people want to be consistent with statements Reciprocity- Smile, respect, admit weaknesses, give information, attention Social Proof- what others have done and what has worked Avoid the Hobson's Choice, the false dichotomy. USE “AND”...not “BUT, OR” ASK WHY?- How do you do that? How does that work? Is this the way you usually do this? (Alice Estey) Give homework for another session. Financial info, expert opinion, legal or accounting consultation, work with a therapist, appraisals. Be aware of your body language and use to communicate what you want to communicate. Calm- Practice being calm and present with a party’s intense feelings. Appreciative questions- focus questions on what works instead of what's broken. Balance: Help parties maintain respect for self AND respect for other. Boundaries- Help parties understand and respect their own and other’s emotional, interpersonal, financial, cognitive and other boundaries. Identify unmet need behind the no. Every no is a yes to an unmet need. (Randy Lowery) Separate the People from the Problem (Roger Fisher) Translate- until needs are heard instead of blame. We all have needs. Hear parties (and yourself) on several levels simultaneously- facts emotional context what not said how do people organize info in heads what assumptions being made how do they see themselves- identity how do they feel right now? how do you feel right now? Ask questions that draw on what people already know or can figure out Stay oriented on several levels at the same time: Where are you in the negotiation/mediation process? Where are the parties emotionally and cognitively? What tactics or strategies are you using; are they effective, do you need to shift gears? If you get lost, take the opportunity to go back and ask some questions re the details of the parties’ stories- you’ll have a chance to regroup, and new information is sometimes surprising, always helpful. Get the Agreement in Writing. It’s easy to put off that task at the end of a long day when everyone is tired and hungry, but the devil is in the details and delay means loss of momentum, loss of focus, settler’s remorse. Expand your repertoire of strategies for dealing with impasse. For example, in Winter 2009 Dispute Resolution Magazine, Dwight Golann discusses, among other strategies: - What if? What if the other side would do X? What do you think you would do? - Simultaneous steps- not to final agreement, but to narrow the range. If the other side moves to X, would you move to Y? - Range bargaining- Will the parties agree that bargaining will be limited to the range between X and Y? - Parallel track bargaining- Given your position, what would you consider a reasonable counter? If you got that counter, what would you do? - Change the mix- meet in different combinations - Offer an assessment -Make a mediator’s proposal -Confidential listener- In confidence, give me your next to last number. I will not disclose numbers but will give a report on whether you are close, far apart, etc. - Adjourn and pursue by phone, email, etc. The Double Blind: A variation on the mediator’s proposal is the double blind. Based on our work so far and where I think it is possible the parties may be willing to stretch to reach resolution, I will give each of you a number. If you say no, I will not tell you whether the other side said yes or no. If you say yes but the other side says no, the other side will not find out that you were willing to say yes, so you will not have given anything away. If you both say yes, we have an agreement. Do. Not. Give. Up. Until the parties fire you. Put in your mediation agreement a clause that says if there is no settlement at a mediation session and the mediator thinks it might lead to settlement, the mediator can contact the parties after the mediation and continue the discussion, and all parties agree to continue to share the mediator’s fee, until any party pulls the plug and says stop. Usually the parties will be grateful that you continue to provide a channel for communication, especially after they’ve had a chance to process what happened in a session. Post-mediation work by the mediator may lead to another mediation session, settlement, or to more productive negotiations directly between the parties. “Study your theory and practice your technique, but when you are in the presence of a living soul, respond to the living soul.” Carl Jung
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