THE CONFIDENTIAL MEDIATION BRIEF

July 17, 2009 · Filed Under Mediation - General · Comment 

Fine and experienced lawyers come to mediation having submitted an elaborate and highly informative brief to the mediator alone!  What is the rationale for this practice.

I speak here not of those cases in which a litigant deems it necessary to keep his trial strategy close to the vest, or in which it might be deemed unwise to inflame the passions of the opponent by incriminating information that the mediator is wanted to know about.   No, here I speak of the run of the mill controversy in which the parties simply have a different understanding of the facts and/or the law, and where communication between them of their respective thoughts on the matter might well bring them into agreement.

It should always be borne in mind that at the heart of mediation is negotiation, and the soul of negotiation is communication.  If one comes to mediation intending to let the mediator do all the communication with the other side for him, he will not be heard to complain if it is done with less passion, less clarity, less legal authority than a well crafted and supported brief can do it.  See my article on negotiation, under Articles.

The confidential mediation brief is rarely necessary and misses an opportunity to communicate effectively with the opposition.

Fairness And Charity As Value Propositions

February 5, 2009 · Filed Under Mediation - General · Comment 

 By Dave Finch

Successful negotiators come in various packages, but a nearly common denominator of this species is concern for the appearance in any proposal of fairness, or at least, that any appearance of unfairness be diminished as much as possible.  Fairness or the perception of fair treatment can be hugely important whenever one side to a controversy attempts to sell his proposed resolution to the other.

Exactly why this is so may as well as any other explanation be attibuted to primordial needs resulting in a conditioned response.  Sharing of food and resources by our primitive ancestors made economic sense.  If my cousins are healthy and motivated they will do their share of the hunting and gathering and battling of hostile tribes.  Over time these practices might have developed a moral sensibility.  He who shares, if not exactly equally, at least in a way perceived as sufficiently equitable, is righteous and trustworthy and deserving.  I rarely mediate a case without seeing this heuristic at work.  There is usually an emotional reaction to any proposal that seems not only inadequate to the goal of resolution but “unfair” in concept, and the negotiation is often set back and troubled until the unfairness wrong appears to have been righted.

 Relatedly, the opportunity to be charitable is also a value proposition.  Studies have shown that the brain activity that occurs in relation to  performing a charity is not one whit different from that which occurs when we get paid for completing a task.  Adam Smith put it this way in his The Theory of Moral Sentiments:  “How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of  others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it”.

This feature of human nature will often have implications in negotiation.  A person being asked to pay or otherwise give up something might be  persuaded to see the proposal not as greedy unfairness on the part of the other, but as an opportunity to do a charity to meet a legitimate need.  To the extent this might be possible it certainly depends upon tactics that include demonstating concern for the other party and his interests, and an earnest search for the fairest outcome.  In other words, the communication process will have to be infused with good will.  Wow!  Has anyone ever seen this happen before, the skeptic oppugns?  The answer is, yes.  Perhaps not frequently, especially when anger and resentment have been provoked in litigation.  But, the negotiator should not rule out the possibility of taking advantage of this humanly natural tendency. 

 

 

 

 

 

 

 

 

 

 

 

Paying Attention in Negotiation

January 26, 2009 · Filed Under Mediation - General · Comment 

At the risk of criticism for offering hearsay upon hearsay, I would like to briefly discuss the findings of Dr. Torkell Klingberg, a neuroscientist in Stockholm as described in a review of his book “The Overflowing Brain” by reviewer, Christopher Chabris, psychology professor at Union College in Schenectady, N.Y.

Now with all that out of the way, I turn to the subject of “active listening” as it relates to participation in mediation, and, for that matter, in any negotiation.  A common observation of and the subject of attempted correction by facilitative mediators is that the parties are poorly or not at all focussed on what the opposing party is saying in the presentation of his point of view on the case.  Instead of actively listening, the silent party may be looking at notes, observing activities on the outside of a nearby window, whispering to her client,  or just looking down in an effort to concentrate on what she is going to say when it becomes her turn.  Even when the silent party is actually listening to the speaker she may not be taking in much, or differentiating between the valid points and the erroneous.  Consider, what Dr. Klingberg’s findings show according to Dr. Chablis:

Working memory is so fugitive in part because it is encoded in the activity of brain cells. As we try to remember a new phone number, neurons in our frontal and parietal lobes are firing away. (By contrast, the long-term memory of, say, where we last parked our car is encoded in the strength and topography of connections between neurons in the occipital and temporal lobes.) Attention works the same way: Neurons increase their activity as we concentrate on an object or task, and they slow their firing when something else intervenes. It is true that the brain can accomplish many things at once (we can drink coffee and listen for a train station to be announced while we read the morning paper), but it can only pay careful attention to one at a time. Indeed, attention is so precious that it is easily depleted — even when the added task (such as talking on a cellphone) superficially seems to be completely independent of the primary one (driving a car).

If one accepts, as I have argued elsewhere (a near obvious truth) that to negotiate effectively one must understand the opposition argument as well as the opposition does, then to fail to take those steps which aid us in doing so seems irresponsible.

What are those steps?  Active listening is a time worn phrase, often not fully understood.  It means leaning in with full attention given to the speaker.  It means interjecting polite questions from time to time in a way that clarifies what is being said.  It often involves taking some brief notes which will be used later in revisiting the speaker’s points.  And when the speaker ends, being able to repeat back to him each and all of the points essential to his argument.  This conduct is not only valuable as a way to show respect and attention which one hopes will be reciprocated.  It also reflects a confidence in one’s own argument to meet and overcome that of the opponent.  Then when it becomes the listener’s turn to present, the presentation is apt to be more impressive for its demonstration that the opposition points have been duly considered and found wanting.

“Touchy Feely” Mediation Ain’t

December 11, 2008 · Filed Under Mediation - General · 7 Comments 

A number of years ago we often heard mediation described by case hardened negotiators as “touchy feely”.  Over these years a probable majority of those cynics have come around to an appreciation that mediation  need not be anything of the sort, and in fact, as practiced in court connected cases around the country, it nearly never is.  Mediation by trained and experienced litigation resolvers has been widely embraced as second only to direct negotiation in which the disputing sides are willing to communicate in a productive dialogue aimed at finding resolution.  The benefit of mediation is of great value in all situations where the skills of the mediator can help to establish a constructive communication process, and help the parties minimize the effects of those human biases and heuristics that interfere with that process.

Even in community mediation where volunteers work with unrepresented parties to help them understand and find solutions to their conflict, a realistic and businesslike negotiation is generally more effective than merely “making nice”, and court connected mediations are arrayed along a spectral line from friendly to fist in the face toughness, but with the vast majority centered in no nonsense negotiation.

In a well written article published at www.mediation.com titled “Not Even Wrong”, Wayne State ADR teacher and provider, Barry Goldman calls attention to the typical textbook blather about peaceful mediators bringing peace into the room and such nonsense, and suggestions that untrained mediators can be sufficiently effective because there is something about the process, separate from technique or theory, that explains positive results.  His argument is that just because there is value in the process, does not mean that mediators need merely be pure and “at peace”.   He compares we modern mediators with early physicians, some of whom got good results and some not so good,  with hit and miss theories of the science of curing illness.  “All the vast literature on ‘mindfulness’ and ‘presence’ and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.”

Well said, Barry.