Why Mediate When You Can Just Negotiate? Several Reasons.

Why mediate when you can just negotiate? After all, what differentiates mediation from negotiation?

While people sometimes refer to mediation as negotiation on steroids, the processes are not identical. In negotiation, two or more parties to a dispute discuss possible resolutions on their own or through lawyers. In mediation, however, parties use a neutral third party, the mediator, to help guide the conversation and keep it on track. The conversation may look like a facilitated discussion that takes place on the phone, via Skype or other video service or in face-to-face conversations. On the other hand, particularly in business mediation, the conversation often involves the parties sitting in separate rooms, while the mediator conveys messages between them that he or she helps frame in private discussions. The net result is the same: the parties decide on their own outcome, rather than having an arbitrator or judge decides for them.

Mediation has become a popular way to address both business disputes in Massachusetts and family disputes in Massachusetts for a handful of reasons, including:

• Voluntary participation so parties are in control of the outcome
• Fair and equal opportunity for all stakeholders to share their concerns and perspectives
• Help from an unbiased individual who can craft a structure for the meetings that makes a successful outcome more likely
• In family matters, the sharing of all relevant information related to resolving the dispute; and in business matters, the sharing of relevant information in a controlled setting if the parties determine it makes sense
• A confidential setting, process and outcome
• Depending on the particular mediation process, an opportunity for each side to reality-test its position and that of the other in the eyes of a neutral third party
• If there is a succesful resolution, it is one that must be mutually acceptable

In the real world, most people negotiate first. It is not always successful. Sometimes it can even exacerbate the conflict. People then turn to a mediator. The timing of mediation is key, but when people are ready to reach a resolution adding a mediator to the mix can help move a conflict out of gridlock and into meaningful conversation. The additional support offered by a third party neutral sometimes makes the difference.

Mediator Skillsets: Active Listening

Some of the most important tools that your Massachusetts mediator can bring to the table are his or her advanced active listening skills. These are skills that can be developed with practice, but that are difficult for many people to master. Patience, practice and time all combine to help the most effective mediators approach complex conflicts with care using active listening skills.

While passive listening involves simply hearing the message of the other person speaking, active listening refers to situations where the listener fully concentrates on the message being shared by the other person. This involves engagement with all of the senses, so that the individual speaking knows the message is being heard and considered thoughtfully. It may sound like psychobabble, but experience shows that active listening really does make a difference in many different contexts.

Mediators are trained to be good at active listening, because they must be able to understand the perspectives of all the people involved in a conflict and serve as a translator between them. Mediators are also effective at using the information heard to generate feedback, including follow-up questions, acknowledgement of feelings (particularly in family disputes) and suggestions for where the conversation goes next. Successfully managing the direction of the conversation helps avoid sticking points and empowers all parties with the most effective use of their time. This feedback and conversation management gives both parties the confidence and space to speak freely and honestly about their concerns.

Listening is the essential foundation of communication, and active listening helps mediators navigate clients through complicated and difficult conversations. When considering a potential mediator, evaluate his or her ability to listen actively as you conduct the initial interview. Active listening skills across the board are a strong indication of top mediator qualities.

What to Expect at Your First Family Mediation Session

After you have selected your family mediator in Wellesley, it is time to prepare for the first mediation session. While you may be able to resolve issues in the first session, this is not always the case. Many family mediation matters take time to resolve. In the event that your mediation takes a few meetings, that first session can be important for laying ground rules and getting all parties on the same page about how mediation works.

The first session usually starts with a joint session where all parties are present. Your Wellesley family mediator will explain how he or she views the process and what parties can expect from one another. This helps frame what you can expect from one another during the process regarding the structure, formality, and confidentiality. The parties work to set out their goals for the mediation, start exploring their true interests and agree on guidelines about how best to communicate with each other during the sessions. This is also your opportunity to ask your Wellesley family mediator any outstanding questions you have regarding the process.

After this is complete, the parties begin tackling any questions that have immediate time sensitivity, like short-term, interim child care and financial arrangements while the final agreement is being negotiated. With the guidance of the mediator, they then begin working through all the issues that need to be included in a separation agreement, in the case of a divorce; and in the case of an estate matter they begin to lay out the facts and even some legal matters related to their case. Before digging into the details of what an agreement might look like, each party is able to add whatever he or she wants to share regarding the facts and his or her feelings directly to the other side. Between sessions, the parties often have “homework” – facts to gather, decisions to think about, court forms to begin completing. You will work with the other party under the mediator’s guidance in order to determine possible solutions based on the perspective of both parties. Having a neutral party helping you through this can be extremely valuable for putting you on the fast track to resolution.

Nine Aspects of Respect and Disrespect: A Guide for Conflict Resolution

 

People often mis-use the word “respect” to mean, “The state or quality that makes you defer to me.”  In fact, people often confuse respect with fear.

  1. Fear is Good.  Fear can Aspects of Respect and Disrespectbe an effective motivator to get people to defer to a leader.  Ask Josef Stalin.
  2. Fear is Bad. Fear is unlikely to get the best performance out of employees or true loyalty out of others unless it is combined with more positive motivators.  We all know this from our own experience in difficult workplaces.  It is a bad manager who believes leadership comes solely from fear and criticism.
  3. If Respect=Fear, People May Choose to Leave Instead of Obey. In personal relationships or in the workplace, people have more of a choice than they do living in a totalitarian state. Often they choose to leave rather than to live in fear of someone who demands deference. They can also be motivated to find ways to push that person aside.
  4. Honor.  The dictionary defines “respect” as being esteemed or honored. Why is one esteemed or honored? Because of some personal quality or achievement. People look up to someone who is respected.  Maybe they want to be like him. Maybe they think she has qualities that give her special wisdom, insight or strength. They defer to her because they want to defer to her, not because they fear her.
  5. Acknowledging Boundaries. In conflict situations, we see a third type of respect: respect for personal boundaries. If you acknowledge to your counterparties that they are legitimately entitled to decide how far to go in a particular negotiation, it has tremendous power to de-escalate the conflict. In fact, it often allows them to make concessions they otherwise would not. Any amicable agreement requires at least a bit of acknowledgement.
  6. Disregarding Boundaries. On the other hand, crossing interpersonal boundaries generates anger.  Sometimes one person acts in a way that triggers a response like stepping on a rattlesnake. Watch for that.
  7. Unstable Boundaries. Be careful of people with certain common personality disorders that involve unstable interpersonal boundaries. Some of them appear to be high functioning but have unpredictable hair trigger tempers when innocent actions cross a boundary that may not have been there a few minutes earlier. Their anger seems irrational to outsiders. In conflict resolution circles, they are sometimes known as “high conflict personalities.” In daily life, they may confuse reluctance to spark their tempers as respect, when it is really just appeasement to keep the peace. People who have these tendencies should consciously acknowledge that there are limits to others’ willingness to appease. People who interact with them should focus on desired outcomes rather than the people themselves, like the classic parenting advice to “criticize the behavior, not the child.” Keep your relationship transactional or develop a Teflon skin.
  8. Dealing with Bad People. Some people do not care if they respect boundaries.  They may be feel that they are entitled to a good temper tantrum now and then, feel that they are entitled to take whatever they want as long as they can get away with it or simply feel their counterpart’s perception of what is overreaching is off-base.  In these cases, it may make sense to involve a third party neutral like a mediator or coach, or even a third party decision maker like a court or arbitrator.  For extreme cases, see Professor Robert Mnookin’s book Bargaining With the Devil for a discussion of when to bargain with evil.
  9. The Dangers of Disrespect. Be aware that if you come off as not respecting the other party, you run risks. You increase the risk of a prolonged battle or (in a legal dispute) litigation.  You risk damaging the other party’s trust that you will follow through on a negotiated solution. You risk the other party’s responding to your disrespect with more disrespect (as often happens in difficult marriages). All this may be necessary, but make it a conscious decision. In other words, if you cannot respect your counterpart, at least respect the consequences.

How to Choose a Mediator

social workersWhen you go looking for a mediator, you are likely to find a few basic types competing to provide you services.

Many litigators like using retired judges.  It helps the lawyers to have someone else push their clients toward settlement.  These people know the law and every trick the lawyers might pull.  They tolerate no nonsense.  If your case will draw on their long courtroom experience knocking heads together, then you should seriously consider using someone like this.  The flip side is that some of them are so used to the gravitas of their former position that they become one-trick ponies.  They play shuttle diplomat, taking turns beating up each side on the weakness of its case until settlement occurs.  In mediator-lingo, they tend to be highly “evaluative.”

Then there are lawyer-mediators.  Like retired judges, these people have a high tolerance level for conflict, know the law and know the tricks of the lawyer trade.  They may have experience in the walk of life that is the subject of the mediation.  They can be evaluative but the better ones have more in their toolkit.  Their professional backgrounds are based on clients coming to them for advice and solutions, so sometimes they have a hard time stepping back and not pressing the parties toward what they think is the “right” answer.  However, that tendency can sometimes help the parties come up with creative solutions.

Most therapist-mediators (psychologists or social workers) have no trouble being neutral and non-directive.  It is their professional training.  They understand that the parties may need a patient observer and safe space to talk things out and can be terrific at facilitating that discussion.  However, sometimes, as with everyone else, their background gets in the way:  they have to learn to push toward closure even if there are lingering emotional issues.  They have to avoid the urge to “help.” Also, while many therapist-mediators can navigate the emotional storm of a divorce or family dispute better than the average lawyer, in other areas their experience may not be as strong.

Specialist mediators are people who have worked or studied in the area in which the dispute is taking place.  They have great substantive knowledge and a deep understanding of the field of play.  They can speak the language.  The flip side is that they may have a hard time going outside the conventions of the industry to help the parties craft a solution and, depending on how extensive their mediation training is, may rely more on their substantive knowledge than their toolkit of dispute resolution tools.

Everybody has plusses and minuses, and these generalizations do not apply to everyone.  There are empathetic former judges, hard-bitten social workers, creative and patient lawyers and versatile specialists.  Most of us strive for balance in all these qualities, and as the mediation field is evolving we learn more and more about what works in different situations.  As a prospective user of mediation services, you should consider the alternatives and the personal qualities of the person or people you choose to help you resolve your disagreement.

Cognitive Bias in Mediation: The Endowment Effect

The Endowment EffectPeople tend to process information through some of the same filters over and over again. We call these filters “cognitive biases.” They are hardwired into our brains.

One of these biases is called the “endowment effect”: once people have something, it becomes magically endowed with a sense of “mine-ness.” People often want more to part with it than they would have been willing to pay to acquire it. The endowment effect can make negotiations over what seem to be economic issues surprisingly filled with non-rational elements.

Consider a neighbor dispute over real property boundaries, for example.  These battles sometimes turn on the placement of a 6- or 12-inch strip between two parcels.  The parcel has become “mine” to both sides. When pressed, each party may be willing to pay less to buy out the other’s claim than it wants to receive if it sells its interest.  The same stalemate happens in partnership disputes too, when one or both partners have endowed the partnership with “mine-ness.”

The endowment effect often rears its head when people are getting divorced.  The divorce process itself requires people to sort their personal property into piles labeled “mine,” “yours” and “ours that we have to split.”  Even though the parties may call it sentimental attachment to particular objects, when something falls into both parties’ “mine” piles, the discussion stops being about the value of the object and becomes more of a tug of war.  Unfortunately, some people place all the property in a home into their own “mine” pile.  As a comedian once said, “I get divorced every few years so I get to give give all my stuff away.”

The endowment effect becomes particularly difficult with expectations.  For instance, people might reasonably expect that they will receive an inheritance from their own parents.  It is the ultimate in “mine”: a person who gave one life is passing on the fruits of a lifetime of toil. However, others lay claim to the same interest.  The government wants its taxes paid.  Siblings think they deserve more.  Spouses who have lived for years in anticipation that one day they will receive a little extra cash to spend think they are entitled to a piece, too.  The legal system, which at its best clarifies social rules that supersede individual expectations, is often frustratingly vague.

The answer for the mediator or creative negotiator is to try to bypass “mine-ness.”  Skip a generation and use the funds to pay for children’s education.  Swap something from the “yours” pile for something from the “mine” pile, so both sides will feel that the other has not been unjustifiably enriched (an actual common law legal concept!). If necessary, delve into what it means to parties for something to be “mine” or “yours” – are they objecting to something being taken, or do they feel an entitlement that is wrapped up in other emotions? If none of that works, you may have to take on the brute force challenge of forcing people to accept the unsatisfying reality that, whether by their agreement or law, some of their “mine” pile will be taken from them.  If they decide to agree, then they may at least get to pick and choose from their pile.

That’s Not Fair

UnfairHow many times have you heard the phrase, “That’s not fair?”

When one of my teenage children says it, it can mean many different things:

  • “I’m not getting everything I want.”
  • “I’m not getting exactly the same thing as my sister.”
  • “You’re treating me differently than you treat my brother.”
  • “You’re doing something that will embarrass me in front of my friends.”
  • “I’m busy right now doing something I’d rather do.  Ask again tomorrow.”
  • “You’re just wrong.”
  • “I deserve more.”
  • “You’re overstepping your bounds by even bringing that subject up.”

And that’s just the start of it.

When we are in any kind of discussion or negotiation, we have to be sensitive to the signs that one side or the other perceives unfairness.  Usually that perception shows itself as one party getting angry and digging in, with overtones of casting moral judgment on the other.  People do not like giving in to unfair requests.  It adds an emotional edge, and it makes agreement harder to reach.

At the end of the day, unfairness means, “I don’t see you as playing by The Rules,” where “The Rules” means “My Rules.”  “My Rules” are defined by my value system, which is informed by my upbringing, culture, professional background and experience.  “Your Rules,” which are informed by your upbringing, culture, professional background and experience, are then by definition wrong.  I am not about to change “My Rules,” although if they line up well enough with “Your Rules” we can have a conversation.

In order to make the conversation productive, though, our views of our respective bargaining positions have to line up, too.  For instance, in litigation, if one person thinks the law and facts are on her side, then she will think she is being fair and the other party is not.  The other party may have a mirror-image view of the law, facts and fairness.  Often enough, through a series of cognitive biases, neither is able to hear the other.  People sometimes have difficulty coming to understand that the other person’s point of view may have inherent internal logic – or be able to see that if just a few facts were changed, one’s own position might not be quite so strong.

If parties are having difficulty aligning their conversations, a mediator can play the role of translator.  By asking the right questions to draw out an explanation and subtly reframing the responses, a mediator can help reduce the emotional force of the push-back against unfairness, while at the same time conveying the thought processes of the parties to each other.  He can also reduce the power of dug-in positions that seem irrational to the other side by using techniques to re-focus the conversation on resolution instead of motives or blame.  That is not to say all will then be right with the world, that each party will not still feel completely in the right and believe that the other party is morally challenged, but it can remove a few barriers to further discussions.  It often helps parties negotiate better if they can sidestep their sense of unfairness.

Cognitive Bias in Mediation: Fundamental Attribution Error

Massachusetts family mediationPeople tend to process information through some of the same filters over and over again. We call these filters “cognitive biases.” They are hardwired into our brains.

One particularly strong bias is called “fundamental attribution error.” When something good happens, we tend to overestimate the role of our own effort and intention. For instance, a store manager might say, “The changes I made helped us make more money last year,” even though it happened at the time the whole industry was expanding. On the other hand, when something bad happens, we are tempted to assign moral blame.  For instance, in a family mediation in which one party has experienced an injury or illness, the other party will often say, “I know she got hurt, but she really could be fine now if she worked harder at it.” In other words, people do have a subconscious tendency to congratulate themselves and blame the alleged victim.

Both sides of the fundamental attribution error coin come up often in business and family mediation. The mediator first has to decide if it is a barrier to resolution, creating significant difficulties on one or both sides, or if he can safely ignore it. If it is a barrier, he has many options.  He can engage in reality testing, although he should read the parties carefully to be ready to address any explosive pushback if emotions run high. He canhold up a mirror to the party most entrenched or float the fairness bubble.  His goal is to see if the parties’ perspective can be shifted so they can get past the issue.

For the parties, fundamental attribution error can be offensive. People do not like listening to boastful language that implicitly or explicitly denigrates their role in positive developments. At the same time, people do not like listening tolanguage thatimplicitly or explicitly blames them, often by laziness, for not escaping externally imposed constraints. As a party, one can spin the language to increase or decrease the other party’s perception of one’s fundamental attribution error to increase or decrease the other party’s annoyance.  Annoyance often stands in the way of resolution, but sometimes, if people are motivated by a desire to overcome the taint, it can be an impetus. The implicit message to which some parties respond is, “Prove to me you are capable.” Parties who are using the mediator to convey messages should be up front about their goals, since mediators sometimes filter out emotional content in order to keep the focus on the elements of resolution.

Fundamental attribution error: acknowledge its presence, then choose to use it or try to bypass it.

Cognitive Bias in Mediation: The Backfire Effect

backfirePeople tend to process information through some of the same filters over and over again.  We call these filters “cognitive biases.” They are hardwired into our brains.

One of these biases is called the “Backfire Effect.” People look for patterns in evidence so the world does not become a string of disconnected observations.  As we are starting to piece together a pattern, or develop a hypothesis, one might think that a rational person would reconsider the hypothesis when faced with an inconsistent fact.  It actually takes an extra cognitive step to approach the world that way, since our tendency is to strengthen the developing hypothesis in the face of the inconvenient evidence.  Our minds value seeing some pattern over the chaos of having no pattern.

In a mediation or negotiation, the backfire effect works against resolution.  Consider a breach of contract dispute.  One party may be moving toward a view that the other’s non-performance was part of an intentional plan.  The non-performing party may have a series of objectively valid reasons for non-performance – or, at least, reasons it sees as objectively valid.  It therefore views the other party’s refusal to accept the explanation as being irrational and overreaching.  There can be many currents and counter currents going on, but one of them is probably the backfire effect: over the course of the dispute, the party claiming breach has become increasingly strident in rejecting each of the reasons for non-performance, viewing each as increasingly desperate attempt to avoid responsibility rather than part of the true picture of events.  The non-performing party starts from the presumption that events excuse its performance and increasingly digs its heels in as the other side rejects its clear factual narrative.  As each party cements its position, legal rights become irrelevant.

When the backfire effect kicks in, one of the mediator’s jobs is to separate the story from the resolution and sidestep the effect.  The role of this particular cognitive bias is to maintain a developing narrative, but if the mediator can de-emphasize the narrative – especially in a commercial case – it frees each party to focus on what the best resolution for it may be under the circumstance.Whether that involves “narrative” mediation techniques or more traditional bargaining is part of the art of the mediator!

Advocates can use some cognitive biases to “spin” the mediator.  However, they do not often have luck with the backfire effect, since mediators generally have a high tolerance for chaos and do not become as invested in their clients’ story as an advocate might.  On the other hand, by positioning their story properly, they may be able to use the mediator as a translator to avoid exacerbating the backfire effect by the other party or parties.  If uncomfortable information is filtered through the mediator, it may receive less push back.