Mediation

I am a mediator gone upriver. Why? Because people don’t understand mediation. Because mediation training isn’t taken seriously. Because too many mediators mediate for free. Because most mediators are too quick to caucus. Because mediation is so incredibly underutilized in the small business world. Need I continue?

Deja vu for Business Lawyers

From the Nashua Telegraph, Wednesday, November 21, 2012

I guess it’s a sign of lawyer old age when a new matter triggers a flood of images from some of your old cases.

Call it lawyer deja vu.

In any event, I mediated a case last week that caused a whole bunch of stuff from the past to bubble up from the subconscious into the conscious part of my brain.

The case involved three young men who had grown up together and been friends in high school. They had gone their separate ways after graduation, but came together years later to try their luck at forming a business and launching a product. They had been at it for a couple of years and had yet to taste financial success. One of the three was running out of steam. The other two wanted to continue the venture. Somebody told them mediation might help them solve their problem. They came to the mediation on their own, without counsel. Read More »

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Collaborative Law Approach Applies in Business Cases Too

From the Nashua Telegraph, December 21, 2012…..

I was fortunate to have great mentors in the early years of my legal career. One of them was Sherm Horton, a legendary Nashua lawyer who ultimately served as a New Hampshire Supreme Court Justice. Sherm was a brilliant business lawyer. He knew corporate and commercial law inside and out. He also understood how to handle people, and how to help them solve problems.

Sherm generally avoided doing divorce work. Nonetheless, when one of his friends found himself in the throes of a divorce, he would often call Sherm for guidance. On many occasions I sat in a conference room with Sherm and heard him offer his friends the same advice: “Ask her what she wants, and see if you can find a way to give it to her.” At first the recipient of the advice might resist. Eventually, and sometimes after spending a lot of time and money in court, they came around to Sherm’s way of thinking.

To me, as a young lawyer, that advice sounded awfully simplistic. Just give her what she wants? It seemed absurd. But as always seemed to be the case with Sherm, there was a lot more meaning in that statement than met the eye. I eventually figured out what he was really telling his friends in that simple statement. He was telling them that regardless of how hostile the situation had become, they would always have a relationship with their former spouses. This was especially true if, as in most cases, the couple had children. He was telling them to handle the divorce in a manner that would do the least damage to the relationship. He was telling them to get divorced in a way that minimized the damage to their children. He was telling them that divorce ought not to be a war between enemies that is fought to the death. Divorce, in Sherm’s view, was a problem that needed solving. He favored a more collaborative approach to the issue.

Thankfully, that sort of approach is becoming more prevalent in divorce cases today. It is embodied in the Collaborative Practice movement.  New Hampshire citizens are now fortunate to have access to the Collaborative Law Alliance, a group of New Hampshire lawyers who have been trained in Collaborative Practice, and who use Collaborative Practice as a tool to help clients solve legal problems without resorting to litigation.

How does Collaborative Practice work? It starts with an agreement between the parties that they will not go to court to resolve their dispute. That agreement is signed not only by the parties, but by their lawyers and other professionals that may be involved in the collaborative process. Together they take a “no court” pledge, of sorts. They commit to the process and back that commitment up by agreeing that should the process fail to produce an agreement, none of them will represent their clients if litigation ensues. This produces a powerful incentive for all parties to work together to negotiate an agreement. This incentive is completely different from the incentives typically present in litigation, where victory, sometimes at all costs, tends to drive the proceedings.

Another advantage of using Collaborative Practice to resolve a dispute is that the parties control the process. They, together with their lawyers and other advisors, can set the schedules and make the rules. In many cases handled in this fashion there is no need for even hearings. In divorce cases, for example, the parties can fashion an agreement that gets filed with the court and the divorce can be granted by the Judge without any need to even meet with the parties. That can save time and expense, and spares the parties the stress that accompanies court appearances.

Collaborative Practice has value beyond just divorce cases as well. It is being used with success in probate cases, in employment cases and in landlord tenant matters. It should begin to emerge in the business world as well. It can be a valuable dispute resolution tool in any case where there are relationships between the parties that ought to survive the dispute at hand.

Most business cases fall into this category. Companies most often have disputes with employees, suppliers, vendors and customers. In each of these categories, the parties might be best served by a process that gives the parties the best chance of salvaging the relationship at the end of the case. Mediation is acknowledged to be an effective dispute resolution process in this regard. Resolving a dispute using Collaborative Practice might work even better. Both are voluntary processes, but mediation lacks the leverage provided by the agreement among the parties and the “no court” pledge. In mediation there is always the risk that one party is not truly committed to the process or making an agreement to resolve the dispute.

To learn more about how you might use Collaborative Practice to resolve a dispute, you can begin on the Internet. There is wealth of information to be found at www.collaborativepractice.com. For information on the New Hampshire Collaborative Law Alliance and to view of a list of New Hampshire attorneys who are trained and qualified in Collaborative Practice see their website at www.collaborativelawnh.org. We should be seeing a lot more of it in the future.

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Certainty and Tyranny of the Majority

Today’s column from the Nashua Telegraph, May 18, 2011:

One of my favorite Albert Einstein quotes goes like this: “Anyone can know; the key is to understand.”

I was reminded of this quote on a couple of occasions last week. The first time was in a blog entry by business author Tony Schwartz in which he addressed the importance of uncertainty when it comes to making good business decisions. Schwartz really nailed it, writing that in business and in life, certainty can often kill curiosity, learning and growth.

Many of today’s brightest business leaders are uncertain by choice. They know that the best decisions come from a diverse process that incorporates multiple perspectives and encourages robust debate. They know that when it comes to solving problems, certainty simply inhibits diagnosis. Certainty short-circuits the effort to pinpoint cause and effect, and contributes to a continuing pattern of bad decisions and mistakes.

The second reminder of Einstein’s quotation came to me as I read some of the quotes from Donald Trump during his brief visit to Nashua. Trump had all sorts of interesting thoughts to share with us. I confess to never having been much of a Trump fan. But this time around some of his statements really got to me. He just seemed so certain about all of his opinions. The Donald’s certainty makes me glad he decided not to run for president.

I have no problem admitting that people who are certain about things tend to bug me. First of all, they tend to be know-it-alls. That makes them a drag at cocktail parties. They blather on about one thing or another with little or no interest in what anyone else has to say. People who are certain about things also tend to live in a black-and-white world, where right and wrong are as distinct and distinguishable as night and day. They tend to have trouble seeing shades of gray. Give me a person interested in exploring all sides of an issue any day. Give me someone with an appreciation for nuance. If nothing else, it makes for better conversation.

People who are certain are also blissfully unaware of their own cognitive biases. We all carry with us cognitive biases that impact how and what we think. One cognitive bias that seems particularly pervasive among politicians these days is called “confirmation bias.” Our confirmation bias causes us to search for and interpret information in a way that confirms our preconceptions. This explains why most certain Republicans I know watch Fox News exclusively, and why most certain Democrats I know watch CNN. They enjoy those programs, too. But to paraphrase Einstein, do they know, or do they understand?

Trump, of course, is far from the only politician who seems certain about things. In fact, lately I see certainty from our elected officials all the time. One easy way to detect the presence of certainty in a politician is to watch for them to express disdain for the art of compromise. They view themselves as principled, but in fact, they are just certain. When one is certain, one has no interest in exploring alternative perspectives or listening to the other side. Compromise is therefore out of the question.

It seems that disdain for compromise really is in vogue, particularly among our most politically engaged individuals. The Telegraph this week ran a column that discussed a recent survey of the American electorate conducted by the nonpartisan Pew Research Center. It concluded that our most politically engaged Americans are fundamentally opposed to compromise. A solid majority of those polled said they “prefer elected officials who stick to their positions over those who make compromises with people they disagree with.” That may help to explain much of the success that tea party activists experienced in the last election cycle. To me, many of those folks do not seem prone to compromise. In fact, most of them seem to be pretty certain about things.

Perhaps you can tell that I do not view all of this certainty and sticking to one’s guns as a good thing for American government. We have a long history of attaining good government through meaningful compromise spawned by active, substantive dialogue. Some of our greatest politicians made their greatest impact by working both sides of an issue and forging consensus among holders of differing views.

But now it seems we elect candidates who stand against compromise. For the moment, at least, the majority is going to continue to rule. I have no problem with healthy majoritarianism. But lurking out there is Alexis de Tocqueville’s tyranny of the majority. Tyranny of the majority is something we need to avoid.

It strikes me that the best way to do that would be to have a little less certainty from our political leaders, and a lot more willingness to explore meaningful compromise. That might not only keep the tyranny of the majority at bay. It might also lead to better legislative results.

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5 Ways to Screw Up Your Negotiation

Here are 5 things you or your lawyer can fail to do that are guaranteed to make it harder for you to get a good result from your negotiation:

1.  Fail to prepare.

For heaven’s sake, do your homework. In my experience the vast majority of parties fail to prepare properly to for negotiation. You need to know your BATNA cold, and you need to have a good handle on what the other party’s BATNA is too. You need to envision alternatives, and options that might meet some of the interests of both parties. If you don’t know what BATNA is, and many professionals don’t, then you’d better hope the folks on the other side of the table don’t know either.  http://www.scottflegal.com/preparation-is-all-about-batna/

2.   Fail to avoid the insult zone with your first demand or offer.

Any decent negotiator understands the importance of anchoring. In theory, by making a high demand, you “anchor” the other party with a high number, thereby making them more likely to overpay from a psychological standpoint. Conversely, lowball offers are often made to anchor the other party in the low zone. But if your demand is ridiculously high, or your offer ridiculously low, you can poison the negotiation. Rational, planned and meaningful anchoring is one thing. Immediately making the other side walk out and file suit is another.

3.  Fail to recognize that you’re not arguing your case to a judge in court.

The party on the other side of the table disagrees with you. That’s why you’re negotiating. The party on the other side of the table is not a judge, charged with the task of remaining neutral, listening to testimony and then making the right decision. He or she is not there to be convinced. If you or your lawyer thinks that arguing the strength of your case as zealously as possible is going to convince the other side to cave into your demands, you are sorely mistaken. You’re not in court. To negotiate well you must appreciate the value of listening carefully and actively; of empathizing with the other party; and of demonstrating that you are even capable of changing your mind under the right circumstances. You’ll get better results.

4.  Fail to respect the process.

Lawyers, in particular, love to cut to the chase. Why waste a lot of time talking about past history? Let’s keep the emotion out of this, because this is about business. If you hear these words coming from your lawyer’s mouth, find a new lawyer. Negotiation is always about emotion, and I don’t care what the dispute or situation might be about. Negotiation, to be successful, needs to be structured and respected by the parties. If all the parties do is exchange offers and demands, a lot of value gets left on the table. If the parties refuse to devote time and resources to the exercise, the exercise is undermined.

5.  Fail to remember that both you and your lawyer are human beings.

As human beings, we are all hard-wired to overestimate the strength of our case or argument, and to underestimate the strength of our opponent’s case or argument. Remember this as you head into the negotiation. You need to be realistic. If your lawyers tell you that ANY legal issue is a slam dunk, don’t believe them. A surprising number of slam dunks are missed, even in the NBA. Your expert is never as strong as you think. The expert for the other side is never as bad as your lawyers might portray them. And don’t blame the lawyers for this. They’re only human too.

 

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What’s Persuasive in Negotiations and Mediations?

Sometimes I’m amazed at how bad we lawyers are at managing and resolving conflict. Far too often it seems to me that when lawyers arrive on the scene of a disagreement, we make things worse, not better. We can be like EMT’s who drop the stretcher while loading the patient into the ambulance. Trained in the art of emergency medicine, but clumsy when it comes to handling the patient.

Why do you suppose this is? Why do some lawyers make things worse? I think it’s because some lawyers haven’t learned that being persuasive during negotiations or during a mediation requires a different skill set than trying a case in front of a judge. Read More »

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Preparation is All About BATNA

Most lawyers I know prepare extensively for court hearings. They realize the important role preparation plays in getting good results in court. But when it comes to preparing to negotiate, parties and their lawyers are more likely to fly by the seat of their pants. This seems odd, given that the objective in court and at the bargaining table is essentially the same: getting a good result. For whatever reason, parties tend to leave lots of stuff in a negotiation or mediation to chance.

Part of the problem is that many of us have simply not been trained to negotiate. At most law schools, negotiation training remains an afterthought. It may be touched on in courses like Labor Law, but it is generally not taught as a stand alone course. This is ironic, given that once we become lawyers we probably do more negotiating than anything else. Read More »

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Emotion Matters!

If I had a dollar for every time I’ve heard someone involved in a business conflict say “let’s keep the emotion out of this” I would be a wealthy man indeed. To my amazement, there are plenty of people in the business world who still believe that emotion ought to be locked out of the room when parties sit down to settle a dispute. I’m not sure what’s more amusing: that people believe emotion ought to be kept out of the discussion, or that it can be kept out of the discussion.

In my experience lawyers can be among the most ardent believers in this notion. Most of us were taught early on in law school that the law had little room for emotion. Trial lawyers learn that clients get angry, and that the process flows most smoothly when they are kept insulated from one another. In some instances the first time the parties sit in the same room after the case begins is at trial. Business lawyers, on the other hand, tend to run from emotional negotiations as if the room is on fire.

But the evidence is mounting that what we learned in law school about the need to keep emotion out of decision-making was wrong. Modern neuroscience and related emerging fields like neuroeconomics and behavioral economics are  telling us exactly what many of us don’t want to hear: emotion is not only relevant to decision-making, it is an essential ingredient in the recipe for good decisions. When people in conflict attempt to exclude emotion or pretend it isn’t relevant, bad decisions can result.

What is the basis for this shocking conclusion? It’s the brain, stupid! Read More »

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Bill Belichick and Cognitive Bias

This article appeared in the Nashua Telegraph in November of 2009, after a painful Patriots loss to the Indianapolis Colts. Pats fans will no doubt remember the game, and the situation. I will leave it up to the individual reader to decide whether the cognitive bias discussed in the article played a role in Bill Belichick’s coaching in the recent loss to the New York Jets…………

I have to admit that I am a bit obsessed with how people make decisions. In my business I spend a lot of time and energy helping clients make the right choice. When you boil it all down that’s really what I do. I help people make the right business decision.

I have learned over the years that decision-making is a lot more complicated than some people realize. As humans we are hard wired with certain inherent tendencies and biases that can corrupt our decision-making. The end result can be bad choices and negative outcomes. Understanding these tendencies and making my clients aware of them is part of the value that I deliver to them in my practice.

These tendencies and biases are known as “cognitive biases”, and we all have them. Cognitive biases are patterns of deviation in judgment that occur in particular situations. Essentially, they are instances of evolved mental behavior. A simple example of a cognitive bias is the bandwagon effect, which leads to the herd mentality. We all have a natural instinct to go with the flow and side with the majority. But sometimes the herd can be wrong. Read More »

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The Understanding Based Mediation Model

In June of 2005 I attended a five day workshop at the Harvard Program on Negotiation conducted by Harvard PON founder Robert Mnookin and mediation pioneer Gary Friedman.  The workshop provided instruction and training in a mediation model known as the “Understanding Based” Mediation Model.

The model is based on the premise that the parties need to work together in the same room with the mediator if they are truly interested in resolving a dispute and perhaps creating value. Caucuses are generally few and far between in this mediation model.

The Understanding Based Mediation model demands that the mediator be comfortable dealing with the conflict in the room, which can often be heated. In my experience there is generally too much caucusing in mediation.

The pluses and minuses of caucusing are discussed in some detail in an article I wrote for the Summer 2005 edition of the New Hampshire Bar Journal. The article can be found here  http://www.negotiationworks.org/pages/newsroom/Advocating_for_Understanding.pdf.

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