When Attorneys on the Same Side Disagree

"When multiple attorneys representing the same client disagree, mediation may be the answer

Excerpt from "Businesses at odds are turning to mediation"in the Nashville Business Journal:

In less than a year, [Jane] Cates' firm has handled about 200 conflict management cases. She says one interesting market they've discovered is fellow members of the bar, who they work with to settle disputes.

When multiple attorneys work on a team for a single client, for instance, the attorneys often can disagree on how to proceed with the case, explains Cates. And lawyers have been known to argue.

So resolving conflicts between fellow attorneys, Cates says, has turned out "to be a surprisingly good niche for us."

Read the rest of "Businesses at odds are turning to mediation"

Please see this idealawg post from which the foregoing was quoted for live links.

Beware of Cognitive Errors

"Attribution errors occur when we attribute behavior or some other quality to a person's character or disposition rather than to situation or environment--in other words, stereotyping. Our assumptions can blind us to the real causes or triggers of behavior.

Anchoring errors occur when we make our final diagnosis based on the direction our original diagnosis steered us in, closing our minds to other possibilities--which means our final diagnosis may be wildly inaccurate.

Confirmation bias, well known to mediators, is the very human tendency to seek out data that supports our assumptions and discount data that contradicts them."

For active links to related resources, see this Diane Levin post from which the foregoing was quoted.

Lend an Empathetic Ear

Richard Salem writes:

"Empathy is the ability to project oneself into the personality of another person in order to better understand that person's emotions or feelings. Through empathic listening the listener lets the speaker know, "I understand your problem and how you feel about it, I am interested in what you are saying and I am not judging you." The listener unmistakably conveys this message through words and non-verbal behaviors, including body language. In so doing, the listener encourages the speaker to fully express herself or himself free of interruption, criticism or being told what to do. It is neither advisable nor necessary for a mediator to agree with the speaker, even when asked to do so. It is usually sufficient to let the speaker know, "I understand you and I am interested in being a resource to help you resolve this problem."

As Tony Alessandra notes:

"William Ury, in his book, GETTING PAST NO, makes the point that every human being has a deep need for his or her feelings to be recognized. Knowing this can help tremendously in a difficult negotiation by creating a climate for agreement.

Ury counsels that it's important to acknowledge both the factual point, and the feelings of the other person. He uses the example of an employee approaching a boss. The employee says: "I just found out Dale makes two thousands dollars more a year than I do for the same job." Trying to explain why Dale makes more money, even if the reason is a good one, only makes the employee angrier. Instead, you must acknowledge the fact and the feelings first: "You think we're taking advantage of you and you're angry. I can understand that. I'd probably feel the same way."

That isn't what an angry person expects. By acknowledging the employee's feelings, you've helped him calm down. His next statement might be: "Well, why shouldn't I make as much as Dale does?" That shows he's ready to hear your explanation."

Empathy begins with listening. Richard Salem continues:

"Among its benefits, empathic listening

1. builds trust and respect,
2. enables the disputants to release their emotions,
3. reduces tensions,
4. encourages the surfacing of information, and
5. creates a safe environment that is conducive to collaborative problem solving...

The power of empathic listening in volatile settings is reflected in Madelyn Burley-Allen's description of the skilled listener. "When you listen well," Burley-Allen says, "you:

1. acknowledge the speaker,
2. increase the speaker's self-esteem and confidence,
3. tell the speaker, "You are important" and "I am not judging you,"
4. gain the speaker's cooperation,
5. reduce stress and tension,
6. build teamwork,
7. gain trust,
8. elicit openness,
9. gain a sharing of ideas and thoughts, and
10.obtain more valid information about the speakers and the subject.

To obtain these results, Burly-Allen says, a skilled listener:

1. "takes information from others while remaining non-judgmental and empathic,
2. acknowledges the speaker in a way that invites the communication to continue, and
3. provides a limited but encouraging response, carrying the speaker's idea one step forward."

Click on the above links for more information.

Business Facilitation ToolBox

The Business Facilitation Toolbox is as the name suggests a toolbox from the Global Facilitators Network with useful articles, presentations you can download to make your workshop preparation easier, a place to get new ideas and generally a one stop shop for what you might need as a facilitation professional. Free Registration is required to download materials.

Topics covered include:

Games and Energisers
Models and Processes
Workshop Preparation
Decision Making Strategies
Hints and Tips
Using Flip Charts
Negotiation Techniques
Problem People
and much more

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Core Concerns Lead to Personal Conflict

Autonomy or the freedom to make decision's for oneself is one of five "core concerns" research identifies as critical in creating personal disputes. "The other core concerns are appreciation, or having actions acknowledged; affiliation, being treated as a colleague; status, feeling that others respect one's standing; and having roles and activities that are fulfilling. Cross one of the needs and conflict arises. Respect them, and [resolution] ...is around the corner...

Principled negotiation is a strategy that seeks to move both parties away from polarizing and usually entrenched positions, and into the realm of interests. It asks how both parties can get their interests satisfied while keeping their relationship strong. Negotiating well means neither party need feel cheated, manipulated, or taken advantage of."

So states this Psychology Today article. To get from here to there, the article suggests:

"Sit Down
This signals to the other person that time will be spent to hear their side. Never ask someone to talk if there isn't enough time to listen.

Find Common Ground...
Move In
Leaning in to the conversation indicates interest. Head nods also help in letting the other side know their thoughts are being followed...

Keep Your Cool...
Be Brief...
Forget Neutrality
Trying to control your emotions usually backfires...Instead, mine the situation to find whatever positive emotions can be brought to the table...

Avoid Empty Threats...
Don't Yield
Caving on important issues may seem noble...but it ruins a relationship...Instead, look for compromises. Compromise is like stretching. Stop doing it and pretty soon there's no way to bend at all..."

Bridging the Last Gap

"It's three o'clock in the morning. You’ve been negotiating or mediating since 9 a.m. and everybody is exhausted. Each side has made more concessions that it really thinks it should have had to, and the gap between the parties has narrowed to millimeters. But there it has stuck, and will stay stuck unless you do something new. Every sophisticated negotiator or experienced mediator has a personal answer to this problem, a private stock of a few gambits, often tried and sometimes successful. But John Wade has the longest list we have ever seen, 16 techniques in all. Not one of them works all the time, but together they can materially improve your batting average."

Read all about it in Chapter 54 of Wade's The Negotiator's Fieldbook found via this post from mediator blah...blah....

Characteristics of Effective Facilitators

"Effective [small group activity] facilitators are flexible. They modify their small-group activities before and during use.

Effective facilitators are adaptive. They modify their small-group activities along six critical tensions.

Effective facilitators are proactive. Before using a small-group activity, they modify it on the basis of the characteristics of the participants and the purpose of the activity.

Effective facilitators are responsive. They make modifications during the small-group activity to keep the different tensions within acceptable ranges.

Effective facilitators are resilient. They accept whatever happens during the small-group activity as valuable data and smoothly continue with the activity."

Read more in this article from thiagi.com

Commercial Mediation Manual

Bill Warters writes:

"Implementing Commercial Mediation was prepared by the World Bank Group's Small and Medium Enterprise Department in 2006. Using case studies, diagnostic and assessment tools, and stakeholder-specific marketing approaches, this manual provides strategies to overcome the challenges of building alternative dispute resolution programs in different national settings. The Task Manager was Alejandro Alvarez de la Campa. You can download the entire toolkit (PDF, 3.4MB), or choose one of its six chapters as noted below:

Introduction: the manual, meant for development professionals, starts with a description of its contents, applications, and limitations of ADR. (PDF, 60KB)

Chapter 1: defines individual ADR processes with attention to the features that distinguish them from conventional dispute resolution. (PDF, 103KB)

Chapter 2: provides a framework for assessing the feasibility of beginning ADR projects, using country and project-specific criteria. (PDF, 118KB)

Chapter 3: offers guidelines for designing ADR projects, centers and assessment tools, and building local partnerships. (PDF, 153KB)

Chapter 4: addresses implementation, with guidance on creating ADR-friendly environments, working within local legal contexts, and selecting cases for mediation. (PDF, 811KB)

Chapter 5: discusses why, when, and how to perform assessments that take into account resources used and outcomes achieved. (PDF, 674KB)

Chapter 6: presents lessons learned in developing ADR projects, highlighting the challenges of creating demand and sustainability. (PDF, 325KB)

The annexes: contain resources to assist program designers and managers, with descriptions of ADR procedures, case studies of projects in various country contexts, sample contract language and agreements, model codes of ethics for mediators, and a list of additional Web resources. (PDF, 3.4MB)."

Please refer to the referenced post for active links to the resources.

Culture Influences Negotiations

This article by Jeswalde W. Salacuse explains how cultural influences affect negotiation styles. Salacuse states:

"Negotiating styles, like personalities, have a wide range of variation...Ten negotiating traits...can be placed on a spectrum or continuum, as illustrated in the chart below. Its purpose is to identify specific negotiating traits affected by culture and to show the possible variation that each trait or factor may take."

Understanding cultural and other factors affecting the following negotiation traits will enable you to better understand your counterpart and how your negotiating style may be perceived by the person sitting across the table.

Conflict Resolution Skills Kit

"Have you ever had a conflict and wished you could have handled it better?
Conflict comes about from differences - in needs, values and motivations. Sometimes through these differences we complement each other, but sometimes we will conflict. Conflict is not a problem in itself - it is what we do with it that counts.

It is important that we do something because whether we like it or not, conflicts demand our energy. In fact, an unresolved conflict can call on tremendous amounts of our attention. We all know how exhausting an unresolved conflict can be. It is not always easy to fix the problem but a great energy boost can come when we do. Resolving conflict requires skills.

What are Conflict Resolution Skills?
They are the skills that enable us to bypass personal differences and to open up to possibilities. The skills of CR draw us closer to other people, as we jointly search for fair solutions and balanced needs. It involves a powerful shift from adversaries to co-operative partners. In this shift each person benefits.

CR Skills Create Better Work Climates and More Fulfilling Relationships
For the organisational manager, skilful conflict-handling is an important managerial tool. Conflict can be seen as an opportunity for learning more about the company - its bottle-necks and inefficiencies, as well as its areas of expertise. The learning potential of conflict often goes unrecognised when staff and management react with "fight" or "flight". "Flow", the third way, requires Conflict Resolution skills...

The Conflict Resolution Network has put together a toolkit of 12 conflict resolution skills - you can reach in and take out what fits for any occasion. They are: The Win/Win Approach, The Creative Response, Empathy, Appropriate Assertiveness, Co-operative Power, Managing Emotions, Willingness to Resolve, Mapping the Conflict, Development of Options, Negotiation Skills, Third Party Mediation and Broadening Perspectives..."

How Hostage Negotiation Works

"Although hostage situations can vary greatly based on the motivations of the hostage-taker and the exact circumstances surrounding the incident, there are some basic facts that apply to all hostage situations.

The hostage-taker wants to obtain something. This can be as simple as money, personal safety or safe passage to another country, or it can involve complicated political goals.

The target of the hostage-taker is not the hostage; it is some third party (a person, a company or a government) that can provide whatever it is the hostage-taker wants.

The hostages are bargaining chips. They may have symbolic value (as at the 1972 Munich Olympics, in which the target was the Israeli government and the hostages were Israeli athletes), but the hostages themselves could be anyone."

Read more in this article from Howstuffworks.

Negotiation and the Laws of Persuasion

"Being adept at persuasion is often the missing key to success in the workplace and your personal life. If you give people what they want via the Six Laws of Persuasion, they’ll most likely return the favor. And when you recognize that you are being manipulated, you can call the other side on their tactics and counter with an appropriate strategy. This will lead to a more effective way of achieving the goals of all negotiating parties...

Persuasion is the ability to influence people’s thoughts and actions through specific strategies. To become adept at this skill, you must first understand some basic principles, called the Laws of Persuasion. These six laws by themselves are neither good nor bad, but describe how most people respond to certain circumstances.Psychologist Robert Cialdini wrote the seminal book on the Laws of Persuasion, titled Influence:The Psychology
of Persuasion, in which he discusses the prevalent methods of marketing...

Here are Cialdini’s Six Laws of Persuasion:

Law of Reciprocity
Human beings, in general, try to repay in kind what another person has provided to them....

Law of Commitment and Consistency
People like to be (or at least appear to be) consistent in their thoughts, feelings, and actions...

Law of Liking
When you like someone, or believe that they are “just like you,” you are more inclined to want to please them...

Law of Authority
This is the law that uses celebrity endorsements or “expert” testimonials...

Law of Scarcity
If you are not sure you want to buy something, the minute it becomes “the last one available” you tend to have second thoughts...

Law of Social Proof...
You think if others are engaging in a specific behavior, it must be the proper thing to do..."


Read more in this article by Edrie Greer from Bnet.com.

Exploring the Language of Mediation

This research paper from Andrew Rixon, Viv McWaters and Sascha Rixon focuses on the question of “Is there is such a thing as ‘speaking facilitatively’?” Thinking in terms of ecologies of language use, it asks whether there may be a particular style of communication, and language, inherent within the practice of facilitation. Its findings"indicate that facilitators do have an implicit understanding of what it means to ‘speak facilitatively’. Furthermore, this style of speech appears to be based on respect for the group and encompasses linguistic politeness devices..."

The paper includes the following examples of facilitative language:

Setting of ground rules
“Our purpose today…”
“What is the purpose of our meeting?”
“What would be the ideal outcome?”
“Where do you want to have got to when we go out that door?”
“Relax and enjoy the journey”
“Everyone’s opinion is valued, there are no wrong answers”
“All ideas are valued”
“It’s an honour to work with you”

Acknowledging participants’ contributions
“That’s an excellent thought. You are very (sincere praise).”
“That interests me, say more”
“Thank you for sharing”
“Great- good- I like it- excellent- Spot on”

Probing
“Say more…”
“Can you say more about…”
“Could you say more?”
“Tell me more about that…”
“Can you tell me more about that?”
“Please, tell me more about that.”
“Yes, please go on.”
“Say more about that if you will…”
“Please tell me more about what you mean when you stated…”
“Tell us a little more about this.”

Garnering participation
“I’m wondering how this might look/appear/feel/seem to you?”
“I invite you to…”
“I’d like to invite you to participate in…”
“Tell me about a time when…”
“I’m curious to know what others think”
“What do others think?”
“Does anyone else have [something]?”

Reflecting and clarifying
“What I have heard is…”
”Am I correct in observing that…”
“So what you’re saying is…”
“What I’m hearing is…Is that right?”
“Please clarify”
“What I hear you saying…”
“Can you help me be more clear in my mind about…”

Good stuff.

Negotiate to Resolve Conflicts:

"All of us engage in many negotiations during a week but that doesn't mean we become better at it. To become better we need to become aware of the structure and dynamics of negotiation and we need to think systematically, objectively, and critically about our own negotiations. After engaging in a negotiation, reflect on what happened and figure out what you did effectively and what you need to do better.

There is no one "best" style; each of us has to find a style that is comfortable for us. Yet, everyone can negotiate successfully; everyone can reach agreements where all sides feel at least some of their needs have been satisfied. This involves a lot of alertness, active listening, good communication skills, great flexibility, good preparation, and above all it involves a sharing of responsibility for solving the problem, not a view that this is "their" problem.

To summarize the most important keys to successful conflict resolution:

*bargain over interests, not predetermined positions
*de-personalize the problem (separate the person from the problem)
*separate the problem definition from the search for solutions
*try to generate alternative solutions; try to use objective criteria as much as possible
*reflect on your negotiations; learn from your successes and mistakes"

Read more in this excellent negotiations overview from Professor E. Wertheim.

When a Picture is Worth a Thousand Words

"Visual-Literacy.org is an online introductory tutorial about how data, abstract thoughts, and concepts can be graphically represented to more easily gain useful insights. One of their knowledge map examples is this excellent Periodic Table of Visualization Methods. Rolling your mouse over each form of visualization brings up an example of the technique. It looks like it would very useful if you think a visualization is in order but you're not sure which specific kind to try."

Quotation comes from this Boing Boing post.

Mediation in Organizational Conflict Management

This article from ballew.org contains a good overview of conflict issues within organizations, suggesting useful ways to manage and resolve conflicts before the organization is irreparably damaged. Among the nuggets is this description of mediation and its potential uses within organizations:

"Mediation is a way of handling conflict in which two or more disputing parties meet with trained, impartial mediators in a good faith attempt to resolve their issues. The mediators facilitate an exchange in which the parties clarify the issues, hear each other's perspectives, provide new information and move toward an agreement. The mediators do not impose decisions or give advice. Mediation is a practical process through which the mediator assists the parties themselves to check facts, share feelings, exchange perceptions and ideas, and work toward agreement. In mediation the parties have responsibility for the resolution. An agreement is reached when the parties are satisfied with all of its terms.

Examples of workplace situations in which mediation works well are:

Disputes between co-workers or colleagues who are unable to function together in the workplace environment.

Interdepartmental conflicts.

Communication breakdowns/barriers."

Conflict Dynamics Checklists

For people struggling with difficult conflicts, these checklists from BeyondIntractability for intermediaries and adversaries hghlight conflict dynamics that are helpful to understand, as well as options for dealing with common problems. Topics covered include:

"International Conflict, Peacebuilding, Post-Conflict Stabilization
Public Policy
Workplace / Organizational Conflict
Interpersonal Conflict"

Six Tips fo Women Negotiators

"1. Get optimistic and set yourself high goals
2. Be prepared. Look for information in unexpected places.
3. Create a support network and search out a mentor.
4. Negotiate the relationship – just how do you want them to see you ?
5. Look for signals that your being a woman is the (unspoken) issue.
6. Work on projecting confidence."

Read more in EuropeanPWN - Do women negotiate differently from men?

Designing an Effective Workplace Dispute Resolution Program

An excellent article from Strategic HR Lawyer about the importance of design in administering workplace dispute resolution (DR) programs contains the following insights:

"The design of the program is critical to its success...The most effective programs are those that focus not only on legal compliance and litigation avoidance, but also focus on fairness. In addition, organizational support and the availability of professional resources to assist employees will promote this goal. Some of the systems characteristics that are important include:

-Availability of expert resources to aid employees in
the processing of their grievances
-Level of input employees have into the process
-Impartiality or degree of independence from management
of the person making the actual decision
-Timeliness and speed of the process
-Consistency with which complaints are resolved
-Degree of top management and line management support
of the program
-Extent to which the process fits the organizational culture...

Organizational research clearly demonstrates that the most effective DR programs are those that promote fairness and objectivity. Often, employees are less concerned about the outcome than they are about the process itself. Thus, if employees view the process as one that is fair and equitable, they are less likely to doubt it or ultimately challenge its findings.

The following are some suggested concepts to discuss when designing a DR program:

-Are the individuals who are charged with administering
the program properly trained?
-Are the individuals charged with administering the program
trustworthy?
-Is the outcome of the process clearly explained to the complainant?
-Is there an appeal mechanism that is administered consistently and fairly and more than merely a “rubber
stamp” for management?
-Are delineated timelines realistic and followed consistently?
-Are employees involved in the administration of the system?
-How impartial or independent of management is the
fact finder in any investigation or review of a complaint?
-How impartial or independent of management is any
decision-maker?
-Does the process itself fit within the organization’s
culture?
-Does top management support the program, or does it
exercise discretion to resolve matters outside of the program in a seemingly arbitrary manner?

Legal standards of compliance for DR programs do not necessarily effectively address all of these due process issues. The gap between passing legal muster and one that
addresses these due process issues is often the hallmark of a successful program versus a merely adequate program."

Business Tools for Negotiation

These BNET: Business Tools for Busy Leaders cover everything from initiating a conversation to uncovering lies to getting everything in writing, including the following:

"Strategic Sourcing: Contract Negotiation
Good contracts thoroughly document the business and legal agreements that govern a business relationship, and they should be relatively easy to follow and understand. This article defines eight critical issues to consider during the negotiation and documentation of successful contracts.

Ten Lessons in Detecting Deception
Most people think they can detect deception, but most over-estimate their ability to do so. For the negotiator, this misapprehension can have severe consequences. This article offers suggestions for understanding the limitations of perception and better identifying and dealing with deception.

Using the Six Laws of Persuasion During Negotiation
To be successful in negotiations, you have to "sell" your ideas and, in a win-win situation, provide the other side with a fair deal. You must appeal to the intellect using logical and objective criteria as well as engaging the emotions of the negotiators. The result of a successful negotiation is that all parties should believe they got a good deal.

What To Watch For When It's Time to Get the Deal in Writing
Most people think of negotiating as the verbal give and take that brings two opposing parties to a point of agreement. That is the heart of negotiating, but just as important is the transition to the written contract that formalizes the verbal agreement. This article outlines key steps in developing a written contract.

27 Principles Of Negotiating
If people ask for something before a contract is signed, it is called negotiating. If they ask for something after a contract is signed, it is called begging. In business, it's better to be a good negotiator than an expert beggar. This concise article covers the basics of negotiating, including some fundamental principles and negotiating tactics."