More Reflections on Mediation

 

  • It really is helpful to bring the key players together; in one recent matter, the two senior decision-makers were among the best negotiators I have ever observed. We met regularly throughout the two mediation days to discuss strategy, the involvement of others, the squeeze points and how best to deploy time and resources. This whole collaborative approach paid dividends when the crunch came and they needed to bridge a very significant gap. And then, make use of silence….let them talk it through, touch the void, work out the realities, even if the answer seems obvious to the mediator.
  • Recently, rather than starting with a joint meeting or with one party setting out how they saw their claims, I invited both groups at the outset to prepare the bullet points for the press release they would issue when the mediation concluded. We then got together and brainstormed to reach a commonly agreed framework which I subsequently put into a couple of paragraphs for them to use. More importantly, the exercise identified what was important and showed that the monetary claims were only one aspect among three essential issues, of which a continuing collaborative relationship was also vital. As a result, we were able to prepare, jointly, an imaginative agenda.
  • In another example, as the parties signed the final resolution agreement at midnight, and prompted by a remark by an individual near me, I played a bit of The Winner Takes It All, by Abba, on my iPhone. Taken in isolation, that seems ridiculous. But it worked, when taken as part of a pattern in which we had kept spirits up through a difficult evening of drafting, during which parties’ had engaged in a musical quiz built around identifying a song, its origins and chart placing in 1975. This had helped people to relax at a very tense moment, and it fitted the occasion. I followed up Abba with Wings’ Goodnight Tonight… I then offered a sombre reflection on the contrast between the apparent triviality of the music and the excellent job each person present had done, naming them each individually, and commending them on the outstanding outcome they had achieved. This mixing of lightness of touch, releasing the hormone oxytocin, with the dignity and seriousness of the process (and the adrenalin and cortisol that stress inevitably produces) seems to be important. And finishing on a high note is really worthwhile.
  • Coaching individuals in a mediation about their and others’ behaviour will pay dividends if it helps them see themselves as others see them. Sometimes, that needs to be frank and can only be done if the mediator has built trust and rapport. Being humble and accepting that you may have made a mistake or given a wrong impression helps to aid authenticity, which is essential for us all, mediator and others  Encouraging and supporting the apparently difficult people is vital too. They are only trying their best as they see things. Asking bold, daft laddie questions can be empowering of others if they are struggling. And avoid telling war stories about yourself; that rarely works. But encourage others to share experiences that may be useful to the process.

Some valuable learning points from recent mediations

“What’s been going on in recent mediations”, asked a colleague. “Any highlights?”  (The trouble with doing anything on a regular basis is that you can omit to reflect on the learning from each occasion.)

So, for me, here are some takeaways from the past few weeks:

The value of bringing the principals/decision-makers together for an early conversation. There is usually great benefit in this. If they have met before, this renews that acquaintance in a difficult yet private forum. If they haven’t met, they have an opportunity to get to know each other as individuals, not names on emails or contracts. They set the scene for what is, after all, their day. And, crucially, it provides a set of reference points for later stage negotiations when only they can do what needs to be done. In contrast, on one occasion recently a lawyer was present on his own, without any client representative or other support physically present. What could have been really awkward became an example of effective and courageous lawyering in which the lawyer achieved a balance between presenting his clients’ position and frank exchanges with the other party – and private advice to his client on the telephone.

Involving experts. I’ve had some fascinating examples. On one occasion, we had two experts explain to each other why they differed, in front of one lawyer and one decision-maker for each party who could ask occasional questions, along with the mediator, who could ask some of those “daft laddie” questions that only a mediator can. Much was achieved with this exercise though the loss of control can discomfit the lawyers involved. On another occasion an expert who was an inventor of a high tech application explained to the full assembled crowd what his invention entailed. Some of those present understood. In yet another matter, one expert effectively assumed the role of an independent third party, offering guidance to both parties, by consent, on what they needed to do to help resolve difficult matters of valuation in a final account in a large construction contract.

Bridging the gap. In one matter, after several hours of mediation, only a few thousand pounds separated the parties. But the principals refused to make that final move. Extra value had to be found. That was achieved by a skilful lawyer who recognised that another stakeholder had an interest in the dispute ending. A telephone call secured the final contribution which enabled faces to be saved all round. On another occasion, I sat silent for what seemed like minutes while two key decision-makers looked at each other and tried to work out if the other really meant what they said when they intimated that they could go no further. The gap there was many hundreds of thousands. Gradually, each prompted and probed until they were satisfied that their counterpart was authentic. That gave them scope to reconsider lines of authority with stakeholders outside the room. Here, the money as such was not the defining point. Trust and realism were what mattered.

Preparation in advance. I always try to make sure that the lawyers are working collaboratively beforehand. That may take a number of meetings, emails or telephone calls, to help them jettison some baggage from past dealings or overcome positional starting points. Most however are courteous and professional. Given specific tasks and the goal of helping each other to help their respective clients, and recognising the value of collaborating to gather information, summarise differences, collate essential documents and relay encouraging messages to clients, they move the process forward significantly before the mediation day itself. Just airing differences and potential impediments on the telephone with the mediator present can reduce tension and recalibrate the relationship.

Getting to Yes – with Yourself

 

“In the morning when I look at myself in the mirror, I like to remind myself that I am seeing the person who is probably going to give me the most trouble that day, the opponent who will be the biggest obstacle to me getting what I truly want.”

So writes William Ury in his just published new book, Getting to Yes with Yourself. I have been privileged to work with William Ury on two occasions in recent years, and he is a man of warmth and humility, combined with clarity and great wisdom.

The distinguished co-author of the seminal Getting to Yes has come to the conclusion that the missing piece in all his writing about dealing with conflict is the inner one. Indeed, he describes this latest book as a “prequel” to Getting to Yes, the essential prerequisite to being able to achieve win-win, interest-based negotiated outcomes with others. Often, he observes, those who understand Getting to Yes fall back under pressure into costly and destructive win-lose methods, usually because they perceive others as “difficult people”, threatening to take advantage of them and to cause them loss.  We are, he says, “reaction machines”. Some of us will recognise this well. How often in a mediation do negotiations falter because of perceptions of the “others” and how they are behaving?

He writes that “very little in life may be under our full control, but the choice between yes and no is ours to make at any moment. We can choose to say yes or no to ourselves, to be either our best ally or our worst opponent. We can choose to say yes or no to life, to treat life either as friend or foe. We can choose to say yes or no to others, to relate to them either as possible partners or implacable allies. And our choices make all the difference.” In a negotiation, we have choices about how we react or relate to our counterparts.

I have often concluded training sessions with words from a poster in a hotel in Philadelphia which described the difference between something ordinary and something extraordinary as that little “extra”. Much of UK Sport’s successful Olympic programme, in which I was privileged to play a small part, was underpinned by the message that the difference lies at the margins, that very small things can make a huge difference. As a mediator, I see that often. It just takes a word, or a gesture, or a small concession…..

So, Ury suggests a number of apparently small changes that may make all the difference to each of us. Put yourself in your shoes –suspend your inner critic: what do you really need? Develop your inner BATNA (see Getting to Yes…) – who are you blaming for your own needs not being met? What are the costs? Can you take personal responsibility rather than blaming others? Reframe your picture – can you accept life as it is and not feel that it is always against you in some way? If you do, then what?  Stay in the zone – dispense with resentments about the past and anxieties about the future. Be personally present in the present. Respect others even if they don’t respect you – separating people from the problem was a central message of Getting to Yes; this reminds us that we can operate far better if we avoid being sucked into an antagonistic mind-set. Give and receive – Ury draws on the excellent work by another Harvard scholar Adam Grant, in his book Give and Take, which shows that thoughtful givers are in the longer run more successful. In other words, Ury says, moving from the apparent scarcity of the win/lose model to maximising gains all round can lead to a double – or triple – win. Much food for thought.

Reflecting the passage at the beginning of this article, Ury refers to President Theodore Roosevelt’s colourful observation: “If you could kick the person in the pants responsible for most of your trouble, you wouldn’t sit for a month.”

Finally, though, it is about acceptance and respect, towards yourself as much as towards life and others. And, for advisers, this applies to your clients too – and your job may be to help them to get there, not because it is touchy feely to do so but because it makes commercial and practical sense and maximises the prospect of real gains.

This, says Ury,  should all be common sense but, in reality, it is uncommon sense: common sense that is uncommonly applied. Which may be where mediators have a role to play ……

 

Getting to Yes with Yourself is available from Harper Collins

John Sturrock’s video seminar with William Ury in September 2014:

http://bccmediators.wpengine.com/bcs-john-sturrock-and-his-master-class-with-william-ury/

New Year Reflections

It is a privilege to do our utmost to help people reach an outcome which addresses their needs and restores dignity.

As another year dawns, it is good to reflect. How privileged many of us are: we are given opportunities to help people who face difficult and important matters. Often these have a significant impact on the lives of those affected. Each deserves to be treated with dignity. I read recently that simply respecting one another is not enough; we have an obligation actively to promote the flourishing of others and to seek their welfare.

To what extent that last proposition is universal, I leave to readers to discern. However, in my role as a mediator, I see such commitment from lawyers and others on a regular basis. Often maligned as a profession, most lawyers would probably accept the positive obligation and strive to fulfil it. That deserves to be acknowledged. At moments of crisis or uncertainty, such an obligation also serves as a restraint on excess, or as encouragement to go an extra mile.

Recently, I also came across a vision of justice described as “law with a light touch”. Rather than seeking to legislate for every situation when something goes wrong or adjudicate on every claim, this is humble recognition that no legal system can correct every alleged harm or alleviate every wrong. Legislators and judges make mistakes too. It falls to each of us to do our best to help people reach an outcome which best serves their real needs. This will sometimes require a formal decision. On many occasions, it will require us to find informal solutions. The scope for this is extensive, as every lawyer knows.

In a ten-day period last year, my work as a mediator took in a number of diverse situations which benefitted from such an approach. Most involved lawyers. Anonymised to preserve confidentiality, these situations included meetings with townspeople explaining to company executives about the effects of nearby blasting work, and sessions involving a national sports body handling a sensitive issue with one of its athletes who was not permitted to compete at the level she expected. I facilitated discussions where a bank customer explained the impact of the termination of loan funding on a family business, while the bank wrestled with recovery of a large debt.

I spent hours with a senior employee as she came to terms with damage to career and reputation for which she blamed her employers. I watched the owner of a ground-breaking national facility plead with the builder to rectify faults which threatened its future, while hearing that what happened may not have been anyone’s fault, and I listened to representatives of a national insurance broker engage with an entrepreneur who had been denied insurance recovery after her life’s project had been written off following an unexpected calamity. And there was the international company negotiating with a relatively small but passionate supplier whose company had been forced to close after a change in policy allegedly resulted in loss of much of its business.

What do experiences like these have in common? Each carries with it a feeling of loss, not just in money terms but in the sense of hope, dreams and expectations. There can be a sense of grievance that someone else’s actions, over which one has little or no control, have led to the loss. Hurt, anger, resentment and a (usually disproportionate) desire to requite then follow. The mere passage of time, the length it takes to get to a resolution, can be a problem in itself. By the time the talking starts, it is often “too late”…

There is a sense of helplessness, with everyone caught up in a complex system with its inefficiencies, or downright inertia, over which nobody seems to have any influence. Perhaps worst of all is the feeling of being ignored, whether inadvertently, consciously or through lack of communication. Time and again it comes back to communication. “Why did we/they not have this conversation a year ago?” Or as a senior adviser put it: “Why didn’t somebody say ages ago to these guys that they need to sort this out?”

As mediators and lawyers, we do what we do because it matters. We are helping people, including the apparently hard-nosed, to express loss, to talk about hurt, to regain control, to communicate about awkward things. We can help them understand each other, to acknowledge and apologise, to have that conversation, to rediscover humanity.

Those mediations which led to final outcomes were concluded by the parties themselves meeting together with me (usually without advisers present, but with their full consent) and reaching agreement. That demonstrates “law with a light touch” and represents a return to self-determination which seems highly desirable.

Perhaps most important of all, therefore, is that those with whom we deal can, with our help and skill, regain their autonomy and their dignity. They can flourish. Achieving that is a worthy aspiration for us all in this new year.

Starting Out Again?

I recently had occasion to reflect on how it feels to go back to what we do after a break. The first emotion is fear. It’s been a while. You’re not sure how it will go. Last time wasn’t too great. You feel tentative and rather self-conscious. Just getting started is a struggle.

Every time you make a move, it seems rather strange. A bit uncomfortable. Clunky. You are very aware of how easily you could slip, especially at the start. You tighten a bit. You can feel the tension. Breath. Relax. Flex the muscles to release a bit of that apprehension. Remember, it’s not just about you. Others feel the same.

Gradually, it comes back. You had a good teacher. She emphasised the importance of having a really effective default method. She was right. You can improvise all you like, go off piste as it were, but you need to know the basics. And be able to implement them in practice. All those practical sessions back on the initial course. Wonder how the rest of them are doing? How many took it further?

It’s all about balance. Poise. Plus technique. The best are able to find the balance between too much structure and too much flexibility. You have to know when to slow down, even to stop and have a breather. But there is often pressure from others to get a move on. You can give in to that and it might go well for a while but….you can also crash badly. If you do, it can take just as long to get back on track. And if things do go wrong, you need a recovery technique. One which you have worked on and is likely to get you back on your feet quickly. Remember your coach, insisting that you practice those “what happens if…” moments?

Interestingly, the more you pause and take stock, and the more mindful you become about what you are doing (without becoming so obsessed with the technical aspects that you forget to go with the flow), the more likely you are to have a good run at it. After a good run, the next stages are easier. But live for the moment. The more you think ahead, the more you forget about the present and tend to anticipate things that might not be there or might never happen. If you do that, you might take your eye off the ball, off the important present moment. You might miss something really vital. So, try to stay in the present.

There is the related danger of getting it right and feeling that you have recovered mastery. And that now you can demonstrate your mastery to those who are observing. That can easily lead to a fall. You may need to take a few risks of course but remember about balance and poise.

There is another danger. The closer you get to the end, the greater is the tendency to speed up. That could lead to a big crash at the wrong time and it’s usually not just you who will suffer. That’s why the signs “rallenter/ralentir/langsam/slow” are so important at the closing stage. Indications like these, and all of the other advice, combined with a good pair of boots, should mean that your day on the ski slopes goes really well.

John Sturrock wrote this on his return to the ski slopes following a four year break. He wonders if mediators and lawyers sometimes feel the same?