IN MEDIATION ARE WE THINKING WISELY OR MERELY REACTING?
ADJUSTMENTS TO OUR CURRENT THINKING AND APPROACH WILL LEAD TO BETTER RESULTS
By: David C. Peterson, JD, LLM, MDR*
Nearly all approaches, negotiation techniques, personality types and level of difficulty, have been experienced by mediators. Over time, we witness the best and worst techniques in negotiation. We have had to develop strategies of our own as neutrals to deal with a myriad of personalities and ways in which attorneys and parties react when struggling in their roles as opponents.
It is challenging for many to apply the most successful techniques. This is because, as an advocate or adverse party, such action appears contra-indicated. The “winning” strategies are not “touchy feely” styles but common sense principles that, when applied, lead to greater success.
Our natural tendencies are to react rather than think of a better approach. Note a common error for example: in the face of attack, many will react with a counter attack. In mediation, things go down hill from there. A pause and intelligent thinking will avoid this counter-productive reaction. “Good thoughts and action can never produce bad results; bad thoughts and action can never produce good results.” (James Allen).
Those who are aware of the art and practice of emotional and social intelligence were not surprised that General Petraeus would have a greater role to play in Iraq. He was highly successful early in the area he commanded. This was attributed in large part to his intelligent approach. He connected with and came to understand the community. Listening, respect and showing interest led to widespread cooperation.
The same is true in mediation. Noted neuroscientists and influential professionals all conclude that to get what you want you need to be skilled at persuasion not forceful or overbearing methods (D. Lakhani, Persuasion; the art of getting what you want ).
In previous articles a long list of references were given, written by highly regarded experts on the subject (for an updated list, e-mail your request to email@example.com). Without exception these authors instruct that the General Petraeus method helps to get your way in negotiation, mediation, sales, relationships and leadership.
Many approach mediation and negotiation without complete preparation. Attorneys prepare for depositions, motions, trial and other events in and out of litigation. A significant part of getting ready when negotiating or mediating includes contemplation and study of what will be most effective. Many view negotiation or mediation as a “wing it” exercise. This leads to mediocrity. It becomes simply presenting one’s perspective, aggressively adhering to positions and then seeing what happens.
This is a left over, old school approach usually taken because it’s easier and more comfortable to many. John Maynard Keynes observed that: “The difficulty (exists) not so much in developing new ideas as in escaping from old ones.” Another author states: “We limit our success when we adopt popular thinking. It represents putting in the least energy to just get by. You must reject common thinking if you want to accomplish uncommon results.” (J. Maxwell, Thinking for a Change )
“Popular thinking” is usually out of date and less effective. Using solid research and proven strategies more relevant to today’s world render us more effective. Therefore, “(t)ake yourself off of auto pilot.” (Supra) When dealing with opposing individuals in conflict, it is easier than we believe to make adjustments, even small ones, to find more success and satisfaction in mediation, negotiating and resolving conflicts in and out of litigation. Here are some important principles to apply:
I. Accept that Not Every One is the Same:
Rather than instinctively react to an opponent’s behavior and tactics in a way that offends, it is best to accept that others do not see and act as we do or as we expect. Avoid wasting time agonizing over this. It’s a fact that we will experience wide differences in the manner in which others view and approach negotiation. In his book, Fearless Negotiating , Michael Donaldson observes: “You spare yourself great agony if you accept the other person on his or her own terms.” It is more productive to spend energy and thought to understand and develop strategies to deal with these others. This approach includes: “treating those people with the respect they would deserve if they behaved” the way you would have preferred. Donaldson acknowledges that this is hard to do but emphasizes that it is necessary in order to settle. (Supra)
Rather than reacting negatively, let them rave and ramble. Ask questions. Obtain crucial information concerning the other’s personality type and primary interests. Their needs may extend beyond the issues at hand and likely include one or more of the following: a) need for ego satisfaction; b) a sense of needing to “win” c) respect or even a need for admiration, d) feeling they have been understood, e) feeling there has been an acknowledgment of their clients’ plight; f) the sense that closure must be in a ceremonial fashion, and g) the need to feel at peace with their ultimate decision. A myriad of other non-monetary factors exist but you get the idea.
There is frequently resistance to considering an exploration and incorporating strategies that meet non-monetary needs. It feels too soft, unconventional, unnecessary or going beyond the comfort level of many litigators.
The problem is that not seeking to discover and meet non-monetary needs will render the negotiation more difficult and it may fail. Getting past the pride, discomfort, ego or other barriers causing resistance to this approach to negotiating may result in harm to one’s client due to lengthy struggles or the inability to settle. We concern ourselves and apply these extra techniques only because it will lead to better results for our clients.
II. Do not Miss the Opportunity to Obtain Important Information Rendering Your Strategies More Focused and Successful:
Many in mediation attempt to rush negotiations and miss this opportunity to be fully informed prior to engagement. It’s nearly always a mistake and gives off an air of having little interest in settlement.
World class negotiators have known this for centuries. They do not rush or react but take time employing wise thinking to get the best deal. It has proven true that: “You are not going anywhere as a negotiator if you are not a good listener.” (Examples: Fearless Negotiating, Supra and S. Chandler, 100 Ways to Motivate Others )
Other cultures do not begin negotiating without getting to know their counterparts well including socializing prior to engagement. We are not likely to get to that point very soon but having this in mind helps.
Americans are notoriously bad listeners in the world according to my observations and almost everyone else’s. It’s just not what we do well. *** The Chinese are stumped by our babbling. The Arabs think it is barbaric. *** …(T)here is puzzlement at the way Americans ‘don’t so much listen as they wait for their turn to talk….
(Fearless Negotiating, Supra). We can be different and do better.
Many tough litigators know they must take an intelligent approach when negotiating realizing that in most cases there is a stark contrast between doing battle and working to achieve agreement. To avoid mistakes and wasting time, it is best to spend time in or before a mediation to obtain a good read on the other.
If you are unable to do this, the mediator will do it for both sides as it is a crucial factor necessary for mediators to be effective.
III. Examples of Benefits of Exploration Prior to Engagement:
1. Gaining understanding regarding the level of commitment to reach agreement;
2. 2. Evaluating whether the other will negotiate in a cooperative or hostile manner at first;
3. Discovering the most important needs to meet, if possible, including the monetary and non-monetary requirements.
4. Obtaining a sense of levels regarding their: a) hostility or friendliness; b) fears driving their conduct; c) their understanding of your case and theirs and where they need to be educated; d) personality type; e) communication style, and f) level of sophistication and experience.
Questions (and listening) are like trowels
in the garden. They help you dig up
information, examine the soil, and find
out what will make the garden grow.
(Fearless Negotiating, Supra, Emphasis Supplied) Again, these are necessary roles for mediators and helps lift a good deal of pressure off the attorneys and parties.
IV. The Difference Better Understanding Makes:
When you and the mediator have accomplished this, you are far better prepared to negotiate. You have opened the vault to gold which allows you to best formulate strategies with the mediator to make progress more quickly and effectively. You avoid common mistakes such as, for example: not knowing that the other is willing to be cooperative and ready to reach agreement, one may use the standard default, hardball approach to be safe. This will likely cause the other to regress into the same mode.
Opportunities are also missed to dovetail components that will help satisfy non-monetary needs required to reach agreement. You should be able to rely heavily on the mediator to assist in this area.
VI. Throughout History in Litigation almost all Cases Settle. It is the Timing and Manner in Which Settlement Occurs and the Satisfaction of the Clients and Lawyers, which has changed:
Research, studies and statistics demonstrate that parties and usually counsel are far more satisfied maintaining control over the outcome of a case, participating in fashioning a reasonable settlement and avoiding the expense, turmoil and uncertainty of trial.
As opposed to the old fashioned settlement conferences, where parties were mostly left out, parties and counsel now work with educated, experienced, mediators. Far better negotiation methods of have emerged resulting in earlier and more productive ways to resolve cases. These methods are far more satisfying to the parties. Satisfied clients return and spread the word.
VII. Some Simple Adjustments to Improve Effectiveness:
1. Cooperative Approach. One of the greatest challenges faced by litigators in mediation is the ability and willingness to switch from a fighter to a cooperative negotiator. Those who exhibit the highest standards of practice are generally practical and effective in the fight but do not lose sight of the value of reasonable cooperation and avoiding a hostile environment.
This is so even in the toughest of cases and with the toughest opponents. It is frequently said by these top attorneys that they would much rather engage in negotiation with successful litigators possessing high standards of civility instead of those who need to puff themselves up due to fear, feeling inadequate or as a cover to hide underlying problems. And some are simply mean-spirited as a rule.
Typically, hostile litigators do not do well in negotiation or mediation. The worst lack patience and the ability to approach negotiation wisely to achieve agreement. Bullying and ego-driven tactics rarely succeed against other good lawyers. They are not intimidated.
A peaceful person lives in a peaceful world. A hostile person lives in a hostile world. Everyone you encounter becomes your mirror (A principle observed by many, including Ken S. Keys, Jr.). It is generally true that we get back what we put out. If it is an unfriendly and hostile image, the other will likely respond accordingly or simply walk away.
The opposite is true as well. Demonstrating a cooperative and friendly approach, the same is normally returned. Even if this doesn’t occur at first, I find that persistence in being cooperative will generally wear out the other’s hostility. The reasons generally are: first, they see that hostility is not working; second, you haven’t reacted as they expected so they give up. Their hostility is neutralized. They become cooperative.
2. Positive Thinking and Action. “Being a winner is not what you do but what you are. By being you will become.” (R. Mayer, How to Win Any Negotiation ) If your mindset is one of confidence and you project a calm, professional and friendly image, your chance at success in mediation will grow significantly.
Thoughts have powerful effects on outcomes (Napoleon Hill, Think and Grow Rich, 21st Century Edition  and 100 Ways to Motivate Others, Supra). Be and remain a positive thinker. “Negative expectations are a quick route to dead-end thinking.” (Maxwell, Supra) Ben Franklin wisely said: “Blessed is he who expects nothing, for he shall receive it.”
Numerous studies and research have demonstrated the power of positive thinking. Several books have been written on the subject, all with many examples of results that were negative or positive based mainly on whether the individuals thought positively or negatively about their tasks or ventures (Think and Grow Rich, Supra, and B. Obama, The Audacity of Hope ). You are more apt get what you expect and less likely to progress without positive thinking and hope, primary components to one’s emotional intelligence (D. Goleman, Emotional Intelligence and Social Intelligence ). Your positive or negative energy during negotiations or mediation can make the difference between reaching an advantageous agreement or failure.
3. Listening. Listen in a way that encourages the other to talk. Real listening and paying attention to the other will achieve at least three goals: a) better rapport; b) a better read on the other and the manner in which they make sense of things, and c) you are able to formulate effective approaches to persuade them (Persuasion, Supra, and L. Pacelli, The Truth About Getting Your Point Across .
4. Consider Psychological Needs. Recognizing and making note of any non-monetary needs to be met will help you to know what additional or extraordinary items to offer to move the negotiation along more productively. Do not ignore potential communications or gestures that will help meet psychological needs. For example, some of the most effective insurance defense attorneys will acknowledge directly to the claimant that what they are doing is not personal, that they empathize with what the claimant has gone through, that this has been an unfortunate circumstance, and that the negotiation is simply to find a reasonable point at which to settle. Doing so sincerely can have a profound impact upon a negotiation. Hostility wanes and cooperative negotiations are rendered more likely. Of course, the circumstances need to be right for this to be effective.
5. Realistic Thinking. Remember that both sides have imagined a favorable outcome for them. Realize that this has had a powerful affect on the mental ability of both sides to be realistic (S. Plous and D. Kaneman, The Psychology of Judgment and Decision Making ). One or both sides have become unrealistic with respect to expectations. Winston Churchill exposed this basic flaw when he said: “Men occasionally stumble over the truth, but most pick themselves up and hurry off as if nothing has happened.”
Both sides must be open to careful examination and realistic consideration of their downsides and any potentially damaging aspects of their case or circumstances. “Reality is the difference between what we wish and what is.” (J. Maxwell, Thinking for a Change” ). Maxwell also underscores one reason we are averse to hearing the truth, as follows: “The truth will set you free – but first it will make you angry!” (Supra)
The “whole picture view” must be part of the decision-making process as the mediation unfolds. The head in the sand reaction or holding on to denial will eventually or very soon lead to disaster. The Plous and Kaneman compilation of research and studies (Supra) contains the warning that the contemplation of negative events are “so upsetting that the very act of contemplating them leads to denial that they might occur.” (Emphasis Supplied) John F. Kennedy on this topic said: “Too often we enjoy the comfort of opinion without the discomfort of thought.”
The Harvard (“Wharton”) School of Business warns that: a) “(m)emory is contrived and re-created to suit our current needs.” b) “Individuals tend to seek confirmatory information for what they think is true and neglect the search for dis-confirming evidence.” c) “Bad decisions over-rely on intuition and emotions. *** Bad decisions underestimate risk.” (Harvard, Making Smart Decisions )
Research also demonstrates that the more people who become involved in the decision-making, the more entrenched the individuals become and the less they will consider real risk. They fall prey to poor decisions. We often consult our friends, associates, family and other friendly people to get feedback. This renders us less open to reality. This principle was first publicized in 1982 by researcher, Irving L. Janis (Groupthink).
Avoid this circumstance for your client’s benefit. “Notice what is, not what should be.” (Ben Stein, How Successful People Win ) To be realistic, reasonable, rational, and open minded is absolutely necessary to success. Success is getting the best deal under the entirety of circumstances.
Be sensitive to the client’s needs and desires while at the same time impressing upon them honestly what they might reasonably expect given all the circumstances affecting their case, pocketbook and their lives. Attorneys are the knowing professionals clients rely upon for reliable information and for helping to select the alternatives best for the clients. (See, for example: Charnay v. Colbert, 145 Cal.App.4th 170 , a warning to lawyers.)
6. Dealing with Aberrant Behavior.
People who are hostile, argumentative, or angry are unreachable. Standing up to irrational people is the norm. Finessing people who insist on being right rather than reasonable is the art.
(R. Mayer, How to Win Any Negotiation [2006, Emphasis Supplied])
Remember not to react in a knee jerk fashion. Unreasonable people can be dealt with effectively. Experienced mediators know how to do this. Examples include: a) to “see other people’s world through their eyes,” b) be “a good listener;” c) be a “(b)ig picture” thinker, getting out of one’s self and avoid focusing only on your own agenda. “That is a powerful thing.” (Maxwell, Supra)
Do not react but think rationally and employ intelligent techniques that will work in diffusing the unreasonable and entrenched. First, do not respond in kind. This is what they want. Don’t give it to them. As Gerry Spence notes (G. Spence, How to Argue and Win Every Time ), let the offensive attack pass by as you move out of the way. (See also, G. Thompson and J. Jenkins, Verbal Judo ) Let it hit the wall behind and reverberate. Do not try to defend your position at that moment, it will lead to more argument and the negotiations will go south, similar to a drill bit anchoring in the ground and continuing to bore downward.
Remain calm. “Never use words that rise readily to your lips or you will make the greatest speech you will ever live to regret.” (Verbal Judo, Supra) Respond with phrases such as: “If I were in your shoes I may feel as you do.” “Perhaps what you are saying has some merit, I will consider it.” “I understand what you are saying.” “I’ll work with you if you will work with me.”
In any event, maintain the dialogue so that the chance for agreement will not be lost. It is amazing how cases settle under these circumstances if we are patient and act intelligently rather than simply reacting. “You can’t always control the conflict, but with a still center you can always control your reaction to it.” (R. Mayer, How to Win Any Argument, Supra, Emphasis Supplied) End
*Mr. Peterson, formally a litigator, is a local mediator (from San Luis Obispo to Los Angeles, residing in Morro Bay and Santa Barbara) with LLM and Masters Degrees in Alternative Dispute Resolution from Pepperdine University School of Law. He works full time in dispute resolution having mediated well over 1,000 cases in over 13 years. For questions or information, call (805) 441-5884 or e-mail: firstname.lastname@example.org. For a Profile, Google “David C. Peterson, Mediator.”