Negotiating the Impossible provides insights from the resolution of some of the most intractable conflicts in history. In this introduction and articles to follow, we explore the lessons we can learn from them.
The 2022 Commercial Arbitration Rules introduced a number of changes. Appropro of the times, it allows the arbitrator to establish the method of conducting the hearing, including video, audio, or other electronic means “when appropriate.”
Listening — understanding — the other side may be the most important negotiation skill. It is difficult to be a good listener when you are talking. But silence has other benefits discussed in this article.
Have you ever lied in a negotiation? The most common answer is that it depends on what is meant by lying. Is representing a higher level of confidence in your BATNA than you actually believe a lie? Is stating that this offer is the best and final when you know it’s not a lie? What if there is a general perception that no one ever means best and final the first time they say it — is saying it still a lie? In a negotiation is it ever unethical to lie? My goal here is not to answer these questions but to explore how our normal ethical standards may be stretched in a negotiation. In an article earlier this year, the Harvard Program on Negotiation (“PON”) published this article on the importance of building trust in a negotiation. There are negotiations where the development of trust is more important than
One of the best mediators I have worked with describes the mediator’s role as helping people have difficult conversations. I don’t use that line in my mediations but I often think about that description when working with parties that know they should resolve their dispute but cannot find the path forward. With that in mind, I found this interesting article on how to have those conversations if you are conflict averse. These tips come from an executive leadership coach and is not specific to mediation of civil legal disputes but is nevertheless instructive: The article, “How to Have Difficult Conversations When You Don’t Like Conflict,” is worth the 3 minutes it takes to read. If you don’t have time to read the article, his points are: Begin from a place of curiosity and respect. The other side has a different perspective, approach the conversation to learn why they do not
Facilitative vs. Evaluative Mediation In late July, I spoke to the ABA Forum on Construction as part of a panel on how to be a better negotiator in mediation. I asked my fellow panel members, both experienced mediators, to describe their mediation practice in a few sentences. One called herself a facilitative mediator, the other an evaluative mediator. Further discussion though revealed that the objectives and techniques did not differ greatly. I think most civil case mediators would use the label facilitative to describe their approach but also admit that they are chosen to facilitate the settlement conference because they have experience in the substantive area of law at issue. This leads to the conclusion that the parties or their counsel expect some level of evaluation from the mediator. Good mediators walk a thin line maintaining neutrality (and equally important, the appearance of neutrality) while also communicating potential weaknesses
A significant step in preparing for mediation, or any negotiation, is the calculation of the party’s Best Alternative to a Negotiated Agreement (“BATNA”). Most lawyers I work with have had a discussion with their client about the alternatives to settlement. In this blog and in my paper on preparation (downloadable here), I urge counsel to apply this concept not only to your BATNA but also to the other side’s position, even if you cannot know their perceived BATNA. Recently, I read a fantastic article by UK-based mediator Bruce Greig explaining what Nassim Nicholas Taleb called the Ludic Fallacy in his book “The Black Swan.” According to Taleb, the Ludic Fallacy is the “the misuse of games to model real-life situations.” In his article Greig explains how to make mathematical models of risk assessment but also the pitfalls of too heavy a reliance on those models. The article is worth reading
Kluwer’s Mediation Blog recently published one of the best articles I have read on negotiating in mediation by Bill Marsh, a London based international mediator. The article is entitled Offers in Mediation, Busting the Myths,” is a quick read, and is absolutely worth your time. Click below to go to the article. Offers in Mediation, Busting the Myths The first two points relate to the start of a negotiation and although the article does not use the term anchoring, Marsh’s advice could easily fit within the value this blog has placed on anchoring the negotiation. There is no weakness in going first and if you know where you want to end up, there is value in setting the expectations. An opening offer that has a clearly defined rationale increases the likelihood that the offer will have the desired anchoring affect. I wrote about anchoring here. This won’t be the last
We have this stereotype of good salespeople as being smooth talkers but real professionals know that the key to better sales results is better listening. It is said that hearing is physical but listening is mental. Hearing is physical but listening is mental! But can you become a better listener? If my experience is any guide, the answer is emphatically yes! Here are some ideas for becoming a better listener. In a short, but interesting article titled “How to Become a Better Listener According to Science,” Organizational Psychologist Dr. Tomas Chamorro-Premuzik, provides a very simple formula: Shut up Listen Repeat Obviously a little pithy but there is a lot to be said for this simple formula. Convincing someone else of your position in an adversarial setting like mediation, demands that you not only understand their position but that they believe you understand their position. So, how do you become a
Does the “Why” Matter? As lawyers we are trained to discover the facts of a dispute and apply the law to those facts. Lawyers are good at uncovering the what, when, where, who, and how of a dispute. All necessary ingredients for good trial preparation. But how often do you understand why? Why are the parties in conflict? Why can’t they resolve the conflict? Mediators have the luxury of hearing both sides of the story. We hear those stories from both counsel and the party in conflict. I am sometimes asked why, if everyone knows the mediation will come down to a money exchange, we do not just skip ahead to that negotiation. The answer is that if that was all that mediation is, there would be little need for a mediator. Understanding the conflict story almost always opens possible solutions that are otherwise obscured. Somewhere deep in the
