Friday, April 25, 2014

Strategies for Staying out of the Dispute when it gets personal

Every once in awhile, a frustrated advocate will take their wrath out on me, their humble mediator.  This happened this week when I sent an email to one of the advocates, who had to leave early from a mediation hearing on Friday, requesting that he and his client return on Monday to complete the unfinished negotiations.  I had the full weekend to consider a new approach:  one that would delve deep into the factual basis for his client's claim for indemnity.  When Monday morning arrived, instead of expressing delight that the former employer had settled the case in chief and agrred to pay all of the damages on behalf of his client, the lawyer for the employee was furious--apparently at me for a failure to call his cell phone and instead leaving a very formal email (sent by my case manager, not me) requesting them to attend the continuance of the hearing set for Monday, but sent after business hours!

Because it was my responsibility to give notice and get everyone as ready as possible to successfully complete the negotiations, I took it quite personally.  At times like these, I find it useful to figuratively "go to the balcony", by which I mean literally to take a walk, chat with colleagues and regain my balance and perspective.  I am engaged to perform a job and if I allow myself to be ensnared in the conflict, I am ineffective.  Still, it was challenging to bring myself out of the conflict so that I could effectively conduct the balance of the negotiations before me with my usual even-handedness.
What strategies do you employ to stay out of other people's disputes as mediator or to avoid pointing fingers as the mediator as a target?

Friday, April 18, 2014

Those Nightmare Stories: Are they Useful in Mediation?

Mediators and attorneys generally discuss the alternatives to a mediated solution in terms of risk analysis, cost analysis, investments of time and likely verdict potential in litigated cases.  But occasionally, a case goes awry in ways that seem unpredictable and aberrant.  Are these stories useful to help get cases settled or is it too easy to discard these as hyperbolic nightmares?

In a recent appeal from a Labor Board Commission ruling, both sides rejected a Mediator's proposal of the amount of the award plus 25% for attorneys fees.  The attorneys fees would only be awarded to the employee if the employer lost it's appeal--as a kind of penalty for appealing a Labor Commission ruling and incentive to simply pay the award.  The shrewd Employer in that case decided rather than to pay the award plus 25% as I had proposed, that he would simply dismiss the appeal and pay the Labor Commission award alone.  The employee's lawyer brought a motion for fees and costs crying unfairness and gamesmanship.  The Judge, however, was constrained by the letter of the law and dismissed the motion. No fees were awarded.

It is a bit of a nightmare, but maybe makes a good story as to the strange tentacles that come with the law.  Useful?

Friday, April 11, 2014

What has Fairness got to do with Mediation?

For those readers that enjoy a bit of game theory, herescaleofjustice is a lesson I learned last week at the ABA Dispute Resolution Conference.  It turns out that human beings have a keen sense of fairness and will reject an offer they think is inherently unfair, even if it is of benefit to them.  The good news is that we are all human, and so behavioral economists predict that most of us will not be ultra-greedy as we expect that our human negotiating counterparts will reject an inherently unfair offer.  Some call this "predictable irrationality".
Here is how the "ultimatum game" is played.  One person is the "proposer" and is handed $100.00 (in singles).  He is asked to offer some amount to the responder.  If the responder accepts, they have a deal.  If the responder rejects, neither proposer nor responder get to keep any of the money.  Typically, 50% of the responders would reject anything less than $30 and about 50% of the time, the proposer would offer about $50.  On the other hand, if it was a computerized offer, the responder would, on average, accept $15, because we don't expect a computer to be fair.  But even monkeys exhibit similar behaviors where, for example, they observe another monkey getting a better treat than theirs.
Mediators can, it seems, harness that inherent "fairness" principle to begin a negotiation that is driven by the parties sense of fairness.  This will trigger a natural reciprocity and bring out the best in the negotiating parties at the outset.

Friday, April 4, 2014

The Chess Game of Mediation

Strategic negotiation is about as straightforward as a good game of chess.  The game doesn't begin until a few 'give away' moves have taken place.  In mediation, these are the outrageous demands, countered by the insulting offers.

The best negotiators are always contemplating the expected reaction of their opponent in response to another move.  That is why it sometimes takes so long to respond to your adversaries offer when it does not fit within your own expectations.  The rules of reciprocity, rewards and incentives all apply as numbers take hold in the negotiation of commercial cases.  In order to get to a reasonable offer, you will need to demonstrate that you are going to get into a reasonable range through your demand.

Like the pieces on a chess board, some moves are lateral, some diagonal and some take two moves into account at once.  The pitter pat of the pawns is only the preliminary phase.  Eventually, you need to be protecting your King and Queen from attack and demise.

How do you apply game theory to negotiation to win your client the best result in mediation?