How to Prepare for Large Group Mediations

There have been many articles written about mediation and what clients should do to prepare for their first mediation session. These activities including being on time, speaking to your mediator before hand, and even bringing snacks to the meeting. This type of information should be provided by the mediator or his staff to the clients well before the first mediation sessions. The focus of this post will be how mediators can prepare themselves for large group mediations. However, this information can also be valuable to clients participating in large group mediation.

The first task at a large group mediation should be identifying all those involved or affected. In order for all relevant parties to be at the mediation table, mediators and their staff often have to conduct extensive interviews. The people at the table should be those who were critical players and all of these critical players should be encouraged to attend. If there is a dispute, stakeholders from all sides must be represented. When a decision is reached, all parties present at the mediation must agree to it. Mediators may want to use the process of “fanning out” to identify and contact all relevant parties. This means asking the originally identified parties to provide contact information for other involved in the situation. By using this technique, you will be able to identify both proponents and opponents in the case.

It may be helpful to involve parties that are not directly involved if they can help resolve the conflict at hand. These outsides may be part of a network or community that can make sure that agreements are followed after the mediation session has ended. If there is ever any question about whether or not someone should be included in a mediation meetings, it is better to include them to be safe. When there are many parties involved, it is crucial to make sure that each side or party is equally represented. No party should feel like their viewpoint or opinion was underestimated or undervalued compared to someone else. This can create problems when a final decision is reached and in the future. Participation should also be balanced during the mediation. Each group should get the same amount of time to speak up. We hope this post has been helpful to our clients when they are preparing to participate in a large group mediation.

Source referenced: Mediate

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People-oriented Mediation

Charlie Young, an experienced mediator, has come to learn that mediators often forget about the most important part of the mediation: the people. Everyone gets so caught up in the monetary and concrete topics surrounding mediation that they forget that the core of the problem is that people cannot get along with each other anymore. Young believes that more mediators need to focus on the healing and reconciliation aspects of mediation because doing so will lead to better resolutions. Decisions made for the sake of reaching a resolution will usually not last as long as decisions made with a people-oriented approach.

Young thinks people-oriented mediation is also necessary because it helps people take responsibility for their actions.He starts off all of his mediations by saying it is okay for humans to make mistakes and gives examples the mistakes he made. He concludes his spiel by saying we should all learn to accept responsibility for our actions. He gives an example of one of the smalls claims he settled between two landlords and their tenants. The tenants had caused a lot of damage to a rental home because they thought the landlords had promised a better house. The landlords were really upset about the tenants intentionally damaging their property. Young learned early on that it was going to be very difficult to reach a resolution between the two parties, so he tried his people-oriented approach. Young asked the landlords if they would work with the tenants if they accepted responsibility. They said yes. Young asked the tenants to accept responsibility for their actions. They did and the landlord accepted their apology. This was a huge step forward in the mediation process. A resolution was soon worked out. For Young, the most important thing here was that the parties left reconciled and talking to each other.

Young also found it helpful to address the issue of confidentiality at the beginning of mediation. Many clients think they cannot express what they really feel. Young believes it is important to reassure clients that they can speak from the heart. Everything they say does not have to be grammatically or legally correct. Simply saying this to your clients can make a huge difference in Young’s experience. Young also objects to calling some of his cases “small cases” because he believes nothing can be small if it is about people. He concludes by saying we must all learn to place more value on the people in mediation. Not only will this result in everyone accepting responsibility for their actions, resolutions reached through a people-oriented approach are more likely to last.

Source referenced: Mediate

Elements of a Successful Mediation Consultation

A mediation consultation can be an anxious time for clients. For most people, it is their first time in mediation and they simply do not know what to expect. In order to get the ball rolling towards a successful mediation, mediators should help their clients feel at ease. Clients feel burdened with all the questions they have about the process and most of these questions are similar to every other new clients questions. Mediators should take it upon themselves to answer these questions before the client even asks them.

As an experienced mediator, you should have a standardized consultation routine.  It is very helpful to have a checklist of topics that you intend to cover in every initial consultation. However, do not treat your checklist as a script. Slowly go over everything and ask the clients if they have any questions along the way. While the clients should always be the center of the conversation, mediation consultation is the only time the mediator needs to dominate. Everyone will have their personalized initial consultation style, but there are a few topics that should be standard in every mediation consultation. We highlight these topics below.

Element #1: Gather Basic Information

The first step in your initial mediation consultation should be gathering basic information about your client. This includes their name, addresses, phone numbers, and email addresses. It can also be helpful to get basic information about their children if they will be a part of the discussion or if you are not able to get a hold of the client.

Element #2: Explain Mediation

For many people, meeting you will be their first time participating in mediation. Therefore, it is very important to explain the process of mediation to them. At a minimum, you should explain the principles of neutrality, self-determination, and confidentiality policies. Be sure to answer any question they have about the process or about reaching a final decision.

Element #3: Mediation versus Law

It is not enough to only explain mediation because many clients think that the mediation and legal process are essentially the same. This is especially true when the mediator is also a lawyer. If a mediator is an attorney, he/she must clearly tell his clients that he/she will not be providing them with legal advice. He/she will only serve as their mediator. This point is often very confusing for clients and should be thoroughly discussed as this cannot be emphasized enough.

Element #4: Process of Mediation

Be sure to explain to your client about what happens during the process of mediation. Showing them a mock mediation or giving them handouts with information can be very helpful. Not only will this help the client feel at ease about the process, the mediator can also rest assured that his clients are well-informed about the process.

Element #5: Assign Homework

There are many things that need to be taken care of outside of mediation, such as filing paperwork. Be sure to tell clients to allocate enough time for these miscellaneous tasks as they may arise throughout the process. If you have any handouts with sample forms or any documents on what to do outside of mediation, provide those to your clients immediately.

Element #6: Explain high-level decisions

Make sure your clients are aware of the fact that they will need to make high-level decisions during the mediation process. While mediation is different from the law in several ways, it is similar to the legal system because a decision must be reached. If it is a divorce mediation, a mediator must tell his client to decide on custody and child support issues. Many clients need time to think about the consequences of going into mediation and telling them from the beginning about possible decisions they will have to make is a good idea. This will give them more time to think about their future decisions.

Element #7: Fees and Payments

Clients often ask questions about a mediator’s fees and payment policies, so mediators may answer this question during the beginning of a consultation. However, be sure your clients understand your fees and the options for repayment before the process begins.

Element #8: Signing Agreements

If the mediator and the clients feel ready to move on with the mediation process, the clients must sign an agreement to mediate and a fee agreement. The mediator can decide when they want to client to sign these forms, but it is recommended to provide the clients with some information about their case before you ask them to sign any agreements. Be sure your clients understand exactly what they are agreeing to.

Element #9: Answer Questions

This is another point that cannot be emphasized enough. Clients sometimes have questions that they are too nervous to ask. Mediators should stop to ask for any questions every few minutes. As a mediator, try to answer questions you have been asked in the past.

This may seem like a long list to follow, but it can be very useful for both the client and the mediator. Mediators can also make their job easier by having a standard packet of materials for their clients. For example, have all the information divorce clients will need in one packet. Clients can refer to these documents during the process. You can even include a list of “homework” assignments for the clients to complete. Providing clients with these documents also increases the chance the clients will work with you in the future because they see your organization and commitment to their case.

Source referenced: Mediate

The Mediator’s Ethical Filter

There are many times when a mediator is removed from the mediation process because he or she is not neutral or has a conflict of interest. Since neutrality is one of the cornerstones of the mediation process, using an ethical filter to maintain it is crucial. An ethical filter is “a simple theoretical instrument that helps the mediator to manage a conflict of interests inside the mediation process, in order to guarantee a neutral and independent approach.” There are three questions the mediator must ask him/herself in order to remain neutral. We will highlight each of these questions in this post and discuss the issue in detail.

Is this information likely to affect my neutrality?

This is the first question a mediator should ask himself during the entire process. The answer to this question may result in a direct or indirect link with the parties. Any answer that puts the mediator’s independence in question should be carefully examined. If there is no information that will affect your neutrality, then the mediation can continue without any worries of bias. The mediator may find asking himself this question each time the parties meet for mediation since new biases and information can be revealed with every meetings.

Does this information affect my neutrality?

This second question highlights the important difference between what we think and what may happen in reality. While we may think certain information will not affect our neutrality, it may actually impact you in reality. Another way to phrase this question is whether or not you feel independent anymore after certain information is revealed. If you still feel in control and independent, the next step would be turning towards the closure of the mediation process and moving towards a settlement. If you do not feel independent, then the parties should decide what to do and whether they will continue to go through with the mediation process.

In these circumstances, what do you choose to do with the mediator?

Parties must be fully aware of the conflict of interest. It is the mediator’s duty to inform the parties of his/her conflicts of interest and reveal the context of the conflict. After the mediator has presented himself to both parties, it is up to the parties to make a final decision. The mediation can either continue or be closed due to a revealed conflicts of interest.

We believe using these three questions and the Ethical Filter can help enhance a mediator’s neutrality and avoid conflicts of interest. The image below is a visual representation of the Ethical Filter. More information about this process can be found at the link below.

Source referenced: Mediate

President Carter Mediates MLK Jr. Family Case

Dr. Martin Luther King Jr’s children are turning to mediation to resolve a family dispute. Like many Americans, they want to maintain their privacy and therefore need to stay away from the court system. While the King family turning to mediation is not a surprising choice, their pick for mediator was unique. The King siblings have picked former President Jimmy Carter to mediate their family dispute. This is very surprising given the fact that Carter is at the fragile age of 91 and had been fighting cancer for a while. The family and a judge in Georgia agreed to mediation, which started in October 2015.

The subject of the family dispute is MLK’s belongings. These belongings include the Bible MLK carried throughout the Civil Rights Movement and his Nobel Peace Prize medal from 1964. King’s daughter, Bernice, thinks the heirlooms are “sacred” and that the family should keep them in their possession. King’s two sons, MLK III and Dexter, want to sell both the Bible and the Nobel Peace Prize. Bernice was very hurt when she was informed that her brother’s wanted to sell their father’s possessions. She also claims the items do not belong to the estate, which is controlled by the two sons. Bernice has both items in her possession and is not willing to give them up if they were going to be sold to a private buyer.

President Carter’s final act in his life may be helping other people resolve a dispute. The King siblings picked Carter because of their trust in his expertise and their faith in him as a mediator. They believe Carter will be the one who can understand, respect, and empathize with them. The hope is that Carter’s mediation will preserve the sibling’s relationship and honor the King family name. This goes to show that mediation is an option for everyone, regardless of who they are or the kind of dispute at hand.

An update on this issue revealed the President Carter’s mediation may not be working. After attempting to mediate the situation for nearly six months, Fulton County Superior Court Judge Robert McBurney said the mediation had gone on long enough. He said unless there is a decision in the next few days, there will be a trial starting on August 15, 2016. The historic artifacts could sell for millions of dollars and this may be the reasons the dispute between the siblings is heating up.

Source referenced:

1. Mediate
2. The Atlanta Journal-Constitution

Deal Protections: Bargaining Strategies in Negotiation

Most of the blogs we have posted and the majority of the articles you read on the internet focus on negotiation between two parties. However, those of us that are regularly involved in the field of negotiation know that negotiators often have to deal with more than one party to reach a settlement. Harvard Business School Professor James Sebenius and Guhan Subramanian came to realize there was a lack of research on multiparty negotiations. Having studied real-world mergers involving billions of dollars, the Harvard professors believe they have one addition to make to multiparty contracts: deal protections.

Deal Protection for Sellers

The formal definition of a deal protection is “the extent to which the parties are bound to each other between signing and closing a deal.” Although a deal protection is often used during mergers and acquisitions, not many people outside the field know about it or use it. Many people also do not know the value of having a deal protection in place. Image you are selling your house and a buyer immediately falls in love with your property. However, unbeknown to you the buyer also has her eye on another house down the street. After careful consideration, she ends up making an offer on your house. You sign the purchase-and-sale agreement, but there is still time before the closing. Soon after you are under contract, you receive a much higher offer on your property from a different party. You reject the new offer thinking it is too late to do anything now. Is it really too late?

This scenario could have ended in a different way if you had negotiated a deal protection clause with a breakup fee in your contract. These two clauses would have said that you, as the owner, had the right to withdraw from the contract before closing if another buyer presented a more attractive offer. In order to ensure that the prospective buyer would remain interested in your house, you offer them a breakup fee of $25,000, which will be paid to them if you decided to not go through with the contract. Not only can the buyer consider the second house she was eyeing, but she gets an additional $25,000 for considering that house now. It’s a win-win situation for the buyer and the seller.

Deal Protection for Buyers

A deal protection can also be very useful for buyers. Let’s say you are looking to purchase a home and you find a property listed at $500,000. You think a more reasonable price for the house would be $450,000. As a buyer, you can offer a “loose” $450,000 deal, which would allow the seller to accept a better offer between signing and closing for the house. You can add a modest breakup fee if the contract does not go through because the seller received a higher offer.

Sebenius and Subramanian believe sophisticated deal structures create value by capitalizing on differing beliefs. Not only can these deal protections be useful for sellers, buyer can also feel more confident about their purchases. As shown with the example above, deal protections can be very useful in home-buying transactions. We hope this post has been informative and will help our readers with their future transactions in real estate and other fields.

Source referenced: Harvard Law Program on Negotiation

New Dispute Resolution Skills

We have previously discussed the difficulty of negotiating with colleagues and those you have a personal relationship with. Typically, we are told to only focus on the task at hand and keep all relationship issues aside. However, this may not apply to all situations. Avoiding the tension and focusing only on the issue works with “cool” issues, or issues that do not cause too much tension in the first place. “Hot conflicts” are those that cannot be put aside. In fact, it may become very difficult to work with someone if you are engaged in a hot conflict with them.

What is a “Hot Conflict?”

Now, you may be wondering what falls into the category of a hot conflict. Researches Amy Edmondson and Diana Smith from Harvard Business School has found that hot conflicts are usually prompted by differences in beliefs, interests, and values. Some of the the characteristics of a hot conflict are team members arguing about the same points over and over again. Another characteristic is team members making personal attacks on one another when they cannot come up with a solution for the task at hand. Once negative attributions take hold, emotions usually flare and there is no more progress in regards to the task at hand.

How can you solve “Hot Conflicts?”

One of the first ways you can resolve hot conflicts is by engaging in self-management. If you are the person that finds yourself in these types of conflicts, then you must learn to examine and transform the thoughts you have during the conflict. The more you understand why you feel the way you do, the easier it will be for you to control those emotions. Emotions generally hijack our ability to think straight, so try to regulate your emotions to keep yourself away from hot conflicts. If someone in your office or around you finds themselves in hot conflict, talk to them about regulating their emotions.

Another way to solve hot conflict issues is to sit down with the other person and have a meaningful conversation. Both parties can talk about their feelings and try to understand the issues they have with each other. There should be no fear of emotional eruptions present. The conversation must be framed in a way that allows both parties to freely discuss their feelings and thoughts.

Not only can hot conflict issues negatively impact the parties involved, they can also take a toll on the office environment and other employees. Therefore, solving hot conflict issues can involve the entire team in the long term. Teams members must learn to trust one another and invest in relationships with each other. This can reduce or even prevent conflicts from occurring.

Source referenced: Harvard Law Program on Negotiation

 

Negotiations: Using Bias to Your Advantage

We continue our theme this week by focusing on negotiations. When many of us enter negotiation, we have some cognitive biases that we bring along with us to the table. Russell Korobkin of UCLA and Chris Guthrie at Vanderbilt University believe you can turn these biases into tools of persuasion. They believe knowing the biases allows them to be used to your advantage.

Bias #1: Anchoring Effect

Korobkin and Guthrie suggest you enter negotiation with an extreme offer. If you think your case is worth $150,000, go in asking more than that. Your extreme offer will influence the entire process. The other side will start to think that they were wrong in choosing a lower amount, even if their amount was more “appropriate.” If you are on the opposite end of this negotiation, you will know that the other side has only put up an extreme offer to persuade you to increase your offer. Do not fall into their trap.

Bias #2: Availability Bias

The availability bias is someone’s tendency to rely on readily available information, therefore not going out on their own to seek extra information from different sources. Since you know the other party is susceptible to the availability bias, you can carefully choose the comparisons you make during negotiations. You may only want to compare situations to your current problems for a more appropriate settlement. This bias may make more sense in the legal context. If the defendant cites a similar case where the judge rewarded a very small amount, this can influence the judge’s decision. In negotiation, citing other negotiation meetings and their outcomes may help your case.

Bias #3: The Importance of Framing

When you are trying to reach a negotiated settlement, it is always important to consider how you frame the negotiation in terms of gains and losses. You know each party comes in thinking they will either win or loose, but you must frame the situation in a way that turns the negotiation into a win-win situation for both parties. Not only will taking this approach build trust at the negotiating table, it may persuade the other parties to become risk averse. If the other party thinks you are taking their needs into consideration as well, they will be more likely to reach a settlement.

Bias #4: Contrast Effects

This effect could also be renamed the Options Effect. The key here is to provide options in order to offer a contrast. Let’s say you make a flat offer to settle a case at $30,000. This one option may not seem attractive, but it will seem more attractive when it is contrasted with other offers. Rather than making that one offer you can say, “You have three options to choose from: $30,000 immediately in cash, $10,000 annually for the next three years, or a $30,00 payment to charity.” When compared to these options, the defendant will definitely think the $30,000 cash offer is the best. By utilizing the contrast effect, the negotiator will not have to compare the amount to a higher price, only other options.

Source referenced: Harvard Law Program on Negotiation

 

Apple and Samsung in Mediation

Beginning in 2010 and 2011, Apple and Samsung seemed to be engaged in a never ending battle over patents. In April 2011, Apple filed a lawsuit against Samsung saying the company had copied the “look and feel” of iPhones with its new Galaxy phones. The battle started when Samsung countersued Apple for not paying royalties after using its wireless transmission technology. Apple and Samsung continued to go back and forth with accusing each other of copying functions and appearances. In May 2012, it looked like both companies were tired of the legal battles.

Apple and Samsung were both willing to compromise because they wanted to avoid going to court. A California court had suggested they limit the number of disputed patents, so both agreed to cut the number of disputed patents in half. The court also urged the two companies to go to mediation to resolve their disputes. Both agreed with the court, but Apple still tried to get a judge to bar the sale of Samsung’s Galaxy Tab 10.1 because it was designed to mirror Apple’s iPad. Their effort was not successful.

Mediation between the companies lasted for two days. Both Tim Cook and Gee-Sung Choi attended the meetings in an attempt to put their differences aside. Samsung is Apple’s biggest supplier and both CEO’s knew the importance of maintaining a healthy relationship. Despite this, both sides refused to back down or compromise. Apple ultimately won more than $409 million at trial.

While Apple and Samsung were not able to resolve their issues through mediation, we hope this serves as a lesson for other business owners. The longer your company spends fighting another company, the more uncooperative both of you become. Therefore, it is essential to go into mediation with an open mind and before legal battle take a toll on your relationship. Apple and Samsung did not go into mediation looking for a solution and it may be the reason they never reached one. We advise all business owners to do their best to mediate a solution before going to the courts.

Source referenced: Harvard Law Program on Negotiation

Avoiding Intercultural Barriers during Negotiation

In this age of globalization, it is common for companies in different countries to work with each other. However, it is not always simple to figure out the work ethic or culture of the other company. If you are doing business with another country, it is likely you will be in a position to negotiate with them. Even if both you and the representatives from the other country speak the same language, negotiation may be a difficult process. Intercultural barriers during negotiations can negatively impact a business deal. In order to avoid this, we have provided a few tips below to keep in mind when you prepare for your next intercultural negotiation.

Tip #1: Do your Research

The first step in overcoming intercultural barriers is getting to know who you will be dealing with. Getting to know as much as you can about your counterpart is a great idea. Do some research and find out if he/she has any international negotiating experience. If they do, then it would be safe to assume that you do not need to engage in cultural stereotyping. If you are not able to find much information about him/her, then do some general research on the culture and do your best to avoid stereotyping. You may also ask a negotiating partner or another contact within the business to provide you with more information on your counterpart.

Tip #2: Enlist an Adviser

If you continue to have trouble finding information on your counterpart or you don’t believe the information you have is adequate, then enlisting an adviser from the same culture as your counterpart is a great idea. You may also want to enlist an adviser if the person you are negotiating with has no international experience. Your adviser can serve as your “second” in negotiations and and “cultural guide.” However, you should not defer to your adviser too much during the negotiations. If you need to speak to your adviser during the negotiations, it is recommended you take a break and step away from the table. Also, be sure to have an open relation with your adviser. If the adviser interjects during the negotiation, be sure to consult with him about your next steps and learn from your mistakes.

Tip #3: Pay Attention to Negotiation Dynamics

Although everyone at the negotiating table may speak the same language, it does not necessarily mean you will understand everything they say. Therefore, it is important for you to listen carefully to every word. If you are not sure about what they just said, repeat what you think they said. If you ask them a question and their response is not clear, rephrase the question and try again. Also, be sure to mind your manners and go with your intuition when you get mixed signals.

 

Source referenced: Harvard Law Program on Negotiation