Thursday, November 21, 2013

Leaning In to Conflict

Sheryl Sandberg has written a great book called "Lean In" about the importance of women assuming a certain posture in business and personal interactions designed to demonstrate that we are truly engaged and committed to serious business as equals at the conference table.

This week, I heard a civil service case in which an employee who was discharged from her employment after an angry outburst directed at her Supervisor lead to her termination.   As a civil servant, she was entitled to have an administrative appeal before the Personnel Commission makes the termination follow or makes the decision to overturn the termination and restore her to work.  The striking part of the case for me was that after she was separated from her work site during the investigation, no one really took the time to listen to her complaints, which were plentiful!  She painted a picture through numerous witnesses of a toxic environment in which screaming and disrespect were commonplace amongst staff members and tears and resentment were a regular occurrence.

It sounds trivial, but often times the way out of conflict is to allow your client to fully vent and explain the circumstances to a non-biased third party.  In the heat of the conflict, nobody within the work place can completely divorce themselves from the environment in order to see the full context of the events precipitating a termination with an un-biased view.

The outcome may be identical, but the output is very different.  Just giving a person a chance to be heard can be a very satisfying and emotional experience which may have a healthy impact on everyone involved. 

It turns out that "leaning in" can be a way to "lead out" the parties who come to a conflict in so much pain and chaos.

As my readers approach Thanksgiving next week, I give you permission to put your elbows on the table and practice "leaning in" to really discover what is affecting at least one person at your holiday table.  You will both be grateful for the opportunity to connect in that way.  And isn't gratitude what this holiday is all about?

Friday, November 15, 2013

Finding the Sweet Spot: The art of the Mediator's Proposal

      Lately I have been finding that very skilled litigators frequently defer to me as mediator to help them settle their cases by making a mediator's proposal, even before they reach an impasse in mediation.  In fact the last 3 of 4 cases I have mediated have been resolved on the basis of a mediator's proposal.  So how do I do it? 
     At a certain point in the negotiation, when it threatens to stall, but before it hits an impasse, I begin negotiating with each side in hypothetical brackets or ranges until I hear or sense there is a potential overlap.  Contrary to the beginning stages of negotiation, this one really becomes a negotiation between mediator and parties, as opposed to party against party. 
     By the way, there is not always an overlap, so sometimes I have to consider both the "bluff factor" and the "stretch factor".  That is, one side may be telling me that the case will never settle below 6 figures ($100,000.00) and I may ultimately discount that by 10-15% and make a mediator's proposal at $85-90,000 on the assumption that the strong assertion of a particular number has some "bluff" to it.  The other side may tell me that they will never go above $75,000, but in a mediator's proposal at $85,000, that side will usually "stretch" to get there.
     I just read and reviewed Dwight Golann's excellent book, "Sharing a Mediator's Power" where he describes the negotiating dynamic in mediation as a triangle with each opposing party at either side and the mediator as the base of the triangle--negotiating with both and still trying to achieve balance and harmony between the two, standing as their foundation and supporting them in an integral function of her own. 
     I prefer to think of it as hitting the "sweet spot" where the proposal just abuts the intersection of good ideas and bad ideas to make a sensible means of settling the case after all other efforts through the course of direct and indirect negotiation have failed.  And boy do I feel triumphant when I hit the sweet spot and both sides say "yes".

Saturday, November 9, 2013

Beware the Bully Negotiator

     I have just finished reading Professor Dwight Golann's excellent book, "Sharing a Mediator's Powers".  It was timely in that last week I mediated a contentious wrongful termination case in which one of the advocates was a notorious "bully".  The case ended with a mediator's proposal which was accepted by both sides.  But I have to say that I was very concerned that the bully advocate had hijacked the mediation and would be gaining an unfair advantage as the result.  I was so relieved and gratified when both sides accepted the proposal and the weight of the balance was taken off my shoulders.

     As Professor Golann details, the mediator gains all of her power from controlling the process of the negotiations, but the advocates can in fact achieve a better outcome for their clients if they are successful in getting the mediator to help them, for example, to make sure that all necessary parties are at the negotiating table, that a joint session is either intentionally held or omitted, that the mediator avoid "reactive devaluation" by delivering key messages instead of delivering them yourself directly to your adversary, and so on. 

     The integrity of the process is sacrosanct.  As Golann concludes, "mediation is an active process, capable of almost infinite variation.  Good lawyers know a mediator can help them negotiate effectively, and are not bashful about asking for help."  Just be careful to maintain your balance!


Friday, November 1, 2013

Know your BATNA and WATNA

Last week's monthly "Settlement Strategies" newsletter talked about the ZOPA and NOPA (Zone of Possible Agreement and No Possible Agreement), in preparation for "winning" at negotiation.

This week I address another set of acronyms:  the BATNA and WATNA.  This stands for the Best (and Worst) alternative to a negotiated agreement.

Once the parties are engaged in litigation, it is hard to step back and genuinely analyze the best and worst possible outcome.  It may surprise you to know that as a mediator, I do not think it is necessary to carefully look at the BATNA or the WATNA until or unless you are presented with a respectable offer.  Before then, you are only speculating, because you only know your side of the equation, not the "alternatives".  After the negotiation has become and when there is an offer on the negotiating table that has some appeal, the lawyer representative should help their clients to engage in a "what if" questioning mode to determine what the consequence of turning down a respectable offer might be.  Will the rejection signal a breakdown in negotiations altogether? Will the conclusion of negotiation trigger a large expenditure in costs to do better? Will the outcome of a pending motion for summary judgment cause the losing party to double or triple their offer? Is it worth the risk?
     Looking at your BATNA and WATNA, a term that most business students learn, but law students seldom know will make you look smart and may improve the outcome for your client, too.