Author: Donita King

Mediator Selection – Best Practices

In my thirty plus years of legal practice and almost 1700 mediation cases at the time of this writing, I have developed my own list of best practices in every stage of mediation. These come from what I observed as a mediator and as an advocate. At first, I thought it was because some of the lawyers were inexperienced in this process. Later I realized that many of these advocates simply didn’t realize the mistakes they were making, or felt that they had no time to correct them; or simply had no interest for whatever reason in correcting them. Those that fall in the latter category often have the mindset that mediation is just a simple and unimportant collateral process to the litigation system, and is of little or no consequence since the case can be tried in any event.

I am pleased to note a very positive development. Specifically,  in recent years some law schools have programs focusing on alternative dispute resolution and now many law students are getting mediation and arbitration training and simulation practice as part of the curriculum and, or in their participation in the school’s ADR society. Many of today’s future and young lawyers are looking for and recognizing the value of resolving legal issues without litigation, whenever appropriate.

Here are some of the best practices I have observed when selecting the appropriate mediator for a case. There are seven; a few of which are generally acknowledged or accepted. They are:

  1. Subject Matter Knowledge – new developments
  2. Mediator Style – right fit
  3. Ability to connect with the parties
  4. Ability to keep control in the mediation while working with both or all counsel
  5. Neutrality and perception of neutrality
  6. Right mix of legal, mediation, and negotiation skills
  7. Cultural Considerations (knowledge or awareness and sensitivity where appropriate; a growing aspect as our population becomes increasingly diverse).

 

Subject Matter Knowledge:  This is one most advocates are familiar with and follow. However, what has developed over the years is complexity in the legal matters where a combination of skill sets or knowledge is needed for the optimal chance of success. For example, an employment case may have serious and complex financial nuances that influence or impact on the circumstances, and such nuances could be lost upon a mediator possessing only general employment law knowledge. The employment relationship may have patent, trade secret or cultural aspects that must be properly addressed or considered in the negotiation and mediation process. Often, such cases look to mediation because it is felt by one or more parties that a judge might not be the best person to assist in resolving the dispute, even though it might be certain the dispute could most likely be resolved with finality. Neither (or more if multiple parties) might feel it preferable for a judicial decision.

 

Mediator Style – Once size does not fit all: Directive? Facilitative? Flexible? The mediator’s style is a significant factor in successful mediation. The “directive” style is most often found when the mediator is a retired judge or when the mediation is part of a judicial settlement program. However, because it is what most lawyers are use to, they tend to seek out lawyers and other mediators who use this style for all of their cases. Indeed, many advocates think this is the only form of mediation and are uncomfortable with anything else. The problem is that a directive style when one or both clients and at least one of the attorneys do not want this style, is not likely to result is successful mediation. As a former corporate general counsel, many of my corporate legal colleagues as well as me were in the habit of saying “If I wanted someone to tell me what to do or force me to do it, I would just wait for the judges settlement conference. I am certainly not going to pay for the privilege of being told what to do!”  My legal colleagues and business clients were looking for someone (a neutral person) with knowledge and skill to help us negotiate a mutually acceptable resolution. On the other hand, if one or more of the clients need a “reality check”, most advocates would agree that directive is the way to go. This is one of the first things I determine when called into a case. What are the lawyers looking for and what are their clients expecting? What has been done so far and what is or is not working? Often, a combination of styles is appropriate and has proven successful.

 

Ability to Connect with the Parties: Advocates, often as the result of habit, use the same mediator with whom they have had success. This might be a good thing, depending on the case and clients. What they forget in doing so is that each client is different. For a successful mediation, the clients must feel that they are being heard in a safe and neutral forum, that their communication has value and is being considered by a neutral who respects their input. I have seen cases where advocates assume because the advocate feels these desired items are present; their client may not think or feel the same way.  Sometimes this can be overcome in mediation, but why start the process with something that has to be overcome! At the very least, for efficiency as well as substantive reasons, careful thought should be given to the mediator selected. For example, in sexual harassment or gender discrimination cases, having a male and female co-mediate is often a successful technique that creates the environment for successful negotiations.

 

Ability to keep Control of the process: It is generally expected that a good mediator will own and keep control of the process, but that also means that the mediator should manage the process in accordance with expectations and parameters established prior to the mediation (in pre session conference) and at the outset. This involves flexibility, as appropriate, and boundaries should be clear to all from the beginning, so that time is not lost due to derailment and getting things back on tract.

 

Neutrality and Perception of Neutrality:  This starts in the beginning – the selection process, and continues during the mediation sessions and follow-up. If any of the clients feel that the other side has an advantage, no matter how slight, that should not be overlooked. The simple way to discover this is to ask the client, once they are given the background of the mediator. (They often feel better about the selection of they are not just told but feel they have an option; even if they don’t exercise the option).

 

Right mix of Legal, Mediation, and Negotiation Skills: This goes along with the style of mediation. What is right for the case, the particular parties, and other counsel? Advocates sometimes overlook the latter point. The most successful advocates intuitively recognize that they need a mediator who possesses the ability to aid the advocate in negotiations where there is personality or style obstacles between or among the attorneys. Also, good mediators are experienced and, or, trained in interest-based negotiation.

 

Cultural Considerations: With an ever increasing diverse population, may advocates simply can’t keep up. Again, a good advocate recognizes where assistance is needed and seeks out that assistance. Whether it is the advocate’s client, and, or, the other parties that are culturally diverse, such differences can play a key part in the negotiations and are certainly considered and addressed in successful mediations and negotiations. Assuming they possess the other requisite knowledge and skills, a mediator possessing the particular cultural experience and knowledge can certainly be an advantage.

Transcript of “Work It” Richmond Article/ Profile with Donita King

Tell us the basics: Who are you, what’s your company’s name, and how long have you been at this company?

I am an attorney, arbitrator and Virginia Supreme Court-certified mediator in the family and civil areas. I’m also an authorized mediator, mentor and alternative dispute-resolution trainer. I am a partner of CMG Collaborative Law Offices, PLC, and licensed in Virginia, Pennsylvania and the District of Columbia. The law firm was established in 2005.

How did you come to specialize in cross-border or international law?

We added this area of concentration as a natural development in our family practice. The large military presence and growing population from other countries in Virginia has resulted in the increasing number of diverse families where there are ties to other countries.

When the relationship breaks down, the person with foreign ties often wants to go back to their support system from their own country. As collaborative attorneys and mediators, we began to acquire specific training in the area of cross border and international parental abduction prevention, and practicing under the Hague convention. That’s an international agreement among signatory countries regarding custody, visitation and support of children where the parties have ties to two or more countries. My partner, Mora P. Ellis, established ACCORD, a sister company whose focus is parental abduction prevention mediation.

What’s a lesson you’ve learned during the recessionary environment of the past few years?

It is critical to constantly re-assess the way you are meeting the client’s needs so as to develop more economical ways for yourself and the client. Listening to the clients’ views and keeping their concerns in mind is a good way to develop new ideas and methods. Also, communicating with the client or potential client as to what you are doing in this respect can go a long way to securing and increasing your client base.

Is there a secret to your personal success? Perhaps a piece of advice you’ve always remembered?

Never stop looking for new ways to grow and improve, and consider all sources. You never know from where a good idea will come.

What’s coming up in the next year for you and your company? What about in the next five years?

(1) Continuing to educate the public and professionals on the benefits of the collaborative process in family and civil matters as viable, alternative dispute resolution option.

(2) Increasing our work in cross-border and international parental abduction prevention.

What, at your business, is the most effective way to connect with customers?

Internet, face-to-face and networking. Educating the public on things that are of benefit to them is also an effective way to connect with potential clients.

What’s the part of your job you dread the most?

When I was a corporate lawyer I could have easily provided a specific answer to this question. Now that I have my own firm and am doing something I enjoy and feel good about, there is nothing I dread.

What’s the part of your job that excites you the most, the thing that makes you want to hurry to work?

There is a great deal of variety in what I do. I do everything from arbitrating financial, real estate and contract matters to mediating civil and domestic relations matters (sometimes in Spanish). I’m also assisting clients in collaborative divorce and potential collaborative civil cases, cross border and international parental abduction prevention mediation and Hague case work, and training in alternative dispute resolution.

The Benefits of Mediation in caring for Elderly Relatives

Today, more and more people are finding themselves in the position of having to care or make decisions for elderly relatives. This becomes increasingly more difficult when there are two or more family members involved and they disagree. Often this occurs when a mother or father dies and the other parent is left alone. Should that parent live alone? If not, should they live with another relative, one of the children, or go into a nursing home? Should one of the children and their family move in with the surviving parent? If so, on what conditions? In any event, who should make the medical and, or, financial decisions for that parent, and what if the others disagree? In this situation where the elderly parent is being treated somewhat like a child, there is the issue of the parent’s independence and their strong sense of self in their ability to make their own decisions, as they have been for their adult lives. While the parent is struggling to preserve the remnants of their own independence and dignity, they are often placed in the middle of family squabbles and become frightened, sad, hurt, and dismayed at the developing controversy and their role as the subject of that controversy. I have heard on more than one occasion from those placed in this position that they just want everyone to get along and stop fighting. If the controversy escalates and the elderly person’s care and well-being is put in jeopardy due to the family’s inability to make appropriate decisions concerning that relative, a guardian might be appointed through the court system to represent the elderly person, make sure that person’s voice is (preferences are) heard, and make decisions that are in the elderly person’s best interest. When this occurs, the family has lost control and there is outside intervention (by the guardian).

 

Mediation gives families the opportunity to retain control before or after an outsider is introduced into the process. The mediator is trained to help the family members discuss the issues in a non-threatening manner and explore options that have the potential of leading to a successful resolution. Where there are control issues due to family dynamics (one or more members of the family having more control than the others), the mediator can help to “level the playing field” so that everyone is heard and given an equal voice in the decision making, as appropriate, especially the elderly relative. Often people find that when everyone is heard, invalid or incorrect assumptions fall by the wayside and they are able to come up with mutually agreed upon options and resolution. When people are able to work things out for themselves, they are more likely to commit to the outcome, and it is not uncommon that the parties to the dispute come to understand things about themselves and others that help to preserve relationships or foster better relationships going forward.

Spousal Support in Virginia

In Virginia, section 20-107.1 of the Virginia Code sets out the law with respect to spousal support.  The court, in deciding whether to award support and maintenance for a spouse, must consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce as stated elsewhere in the Virginia Code. In determining amount, duration and the nature – whether it is remedial for a time period or permanent, of spousal support, the court must consider the following thirteen factors.

  1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
  2. The standard of living established during the marriage;
  3. The length of the marriage
  4. The age and physical and mental condition of the parties and any special circumstances of the family;
  5. The extent to which the age, physical or mental condition or special circumstances of any child or the parties would make it appropriate that a party not seek employment outside of the home;
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  7. The property interests of the parties, both real and personal, tangible and intangible;
  8. The provisions made with regard to the marital property under Virginia Code section 20-107.3 (distinguishing marital and separate property);
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. The opportunity for, ability of, and the time and costs involved for a party to get the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
  11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

 

How each of the above factors contribute to or are weighed in each case, depends on the judge to whom the case is assigned. Often, parties prefer to take this decision out of the judge’s hands and with the help of an experienced mediator and, or, their attorneys, come to a resolution of this issue on their own.  The important thing to keep in mind is that this is a very involved issue and divorcing parties should be very careful that they do not waive any rights with respect to spousal support unknowingly. In trying to avoid this danger, often divorcing couples find themselves fighting about spousal support even when they have reached mutual agreement on other issues. Mediation and the collaborative process are two excellent ways to resolve this issue in a non-adversarial manner. In both processes, the parties work together to arrive at a mutually acceptable resolution, tailored to their particular family circumstances.

Using the Right Words for Mediation and Negotiation

I recall one of my first mentors in the legal field advising me to work on changing my language to develop more powerful speech. As a young lawyer, woman, and minority over thirty years ago, in the very conservative insurance and financial services industry; I needed to learn how to make my speech work for me. My mentor gave me a book that started me on the path of not just choosing my words carefully, but consciously choosing subtle but powerful non-offensive words when needed. This simple but effective measure contributed significantly to rapid and positive results in my corporate legal practice. So, when I entered the ADR arena, it was time to work on my language again in two capacities – as a collaborative attorney and negotiator, and as a mediator.

 

I have observed advocates who are not mindful of their words, use counter-productive language when they are sincerely trying to negotiate or develop a mutual agreement or satisfactory resolution. Most of the time they are unaware of what they have said until it is pointed out. Other times they realize they should have chosen language more carefully but are not quite sure how. The problem is that most advocates are skilled gladiators and spend their time, energy, and focus on how to become more so. Many think or feel that it is not necessary to change their language or manner of speech; that just being inoffensive is enough. The fact is that using language – appropriate wording and manner, can greatly assist the advocate in effective and fruitful negotiations. One of my favorite quotes is attributed to Daniele Vare: “Diplomacy is letting the other person have your way.”

 

Suggestions for Mediation Advocates:

  1. Avoid language that sounds positional; speak in terms of the parties’ interests.
  2. Avoid blaming language, or language likely to evoke an emotional response at the sacrifice of rationality.
  3. Speak in terms of your client’s needs rather than making demands.
  4. When presenting a point on your client’s behalf, acknowledge something on behalf of the opposing party (a small face-saving item or positive attribute or action).
  5. When the first instinct is to use language that attacks, pause and think of a way to present the same idea, in a more acceptable way. (This may be difficult in the beginning, but becomes much easier with practice.)
  6. When other cultures are involved, research what might be considered rude or offensive in that culture with respect to manner and speech.
  7. Practice-practice-practice!

 

It has long been recognized that an important conflict resolution skill and mediation technique is knowing how to select language that will de-escalate a conflict. An advocate’s awareness of words and phrases that may be counter-productive, and the replacement of these words with more effective language for negotiation or mediation purposes, will greatly improve the potential for successful mediation and resolution.

 

 

Resource:

  1. Using Mediation Language, Coast to Coast Mediation Center, http://www.ctcmediation.com/mediation_language_techniques.htm

 

Client Participation in Mediation – To Speak or Not to Speak

The purpose of mediation is to give the parties an opportunity to have a discussion and possibly develop a solution to a dispute. The assistance of a skilled and experienced mediator helps to provide the parties with a facilitator who can assure a neutral environment, help the parties to explore options, and use proven techniques to overcome impasse.

A good mediation allows for creativity in problem solving and empowers the parties to come up with a solution tailored to their particular circumstances. In addition, the parties have an opportunity to vent and have their feelings acknowledged. This enables them to move on emotionally and psychologically, which serves to help them shift the focus from blame, battle, and defense, to problem-solving. The problem is that many advocates do not realize that in order for mediation to be effective, their clients must participate – be engaged. That means they have to talk. Otherwise, it is just a settlement conference where the parties abdicate control to their attorneys. A settlement conference does not provide for the flexibility, creativity, client venting or control in resolution development process.

 A mediator’s job is to get the parties to talk, so that the mediator has an opportunity to address hidden agendas and emotions that are at the route of their decision-making. Many times, advocates tell their clients not to talk, but to let the advocate do all the talking. It is immediately apparent to a mediator when a lawyer’s client has been so advised or instructed. In these cases, progress tends to stall and potential for success becomes more remote. Other times it is readily discernable that the client is afraid to speak and feels that they have hired the lawyer so that they do not have to speak. Good lawyers and mediators in this situation patiently and gradually work to increase the party’s comfort level and encourage them to speak, until they are doing so easily, shifting the mediation into a higher level and accelerated pace in the resolution process.

 An advocate who wants to make the most of the mediation opportunity for the client should work with their client to prepare the client for actively participating in the mediation process. Here are some suggestions for client preparation.

 

  1. Take the time to explain the mediation process.

Be thorough in your explanation and discuss the roles of each of the expected participants. Printed materials or videos available on the internet or published by various agencies or organizations are often helpful.

 

  1. Be specific about your client’s role and what is expected of them.

Go over carefully what is expected from the client by you, the mediator, and the other parties (including attorneys). Practice a bit with your client some scenarios in mediation to enable them to get comfortable with the process; specifically, opening, hearing from each party in joint session, caucusing, etc.

 

  1. Find out what your client needs to be comfortable in their environment.

Does your client have any special needs or preferences? Do they smoke and need smoke breaks? Can they sit for long periods? Do they have hearing or speaking problems (naturally soft voice or stutter?) Perhaps you can arrange for a seating arrangement that might be more conducive for your client’s participation.

 

  1. Give your client some positive examples or anecdotes of successful mediations.

Since your client may not have personal or professional experience with mediation, you can substitute with the positive experiences of others by anecdotal information. This gives your client a vicarious point of reference to draw from, and may also serve to give your client examples as to how they might like to participate.

 

Like anything else, preparation is the key for successful client participation in order to maximize the potential benefits of mediation.

 

Reframing in Mediation and Negotiation

“Reframing” is taught in all the basic mediator training courses, and mediator mentors and instructors evaluate and coach novices and students in mediation on their development of this acquired skill.”Framing” refers to the manner in which a client describes the way he or she sees a conflict situation, goal, concern (interest) or issue. Clients often describe their conflict in a negative manner (from the perspective of others), usually accompanied by emotional content or designed for emotional impact.  Reframing is a technique to re-word or re-state what the client has said more constructively.  This assists the client in re-evaluating their perspective, or clarifying what is important to them in the conflict situation.  Not only does reframing help the client better understand their own thoughts, it also assists in clarifying and de-escalating the conflict for the other client(s) and lawyer(s).

At this point, no doubt, advocates will think or say that it is not in their or their client’s best interests to use words that are not designed for attack or presenting their position in a less favorable or powerful light. That is true in litigation, but if the intent at the moment is to negotiate in good faith or to take full advantage of a negotiation opportunity, at least minimal or limited reframing should be considered. Good lawyers already do this when they think their client has gone too far and might be sabotaging negotiation, but they often fail to use reframing as a proactive tool in negotiation. Further, an advocate skilled in reframing can use this tool effectively in negotiation or mediation with respect to statements made by the opposing party.

Reframing should be done is a way that allows the client or opposing party the opportunity to clarify or correct the reframe if it does not adequately identify their needs.  Reframing should not distort the content of what the client or opposing party is saying.

Reframing can be useful in the following ways:

  • To tone down on a blaming or critical statement and state in a positive frame.
  • To shift from negative to positive.
  • To shift from past to future.
  • To identify the needs or concerns behind a stated position, which helps the clients to analyze their own perspectives and clarify their thoughts.
  • To identify the issue that needs to be resolved. This can be the start of building an agenda.  Be careful not to suggest or imply a solution in your reframe.
  • To emphasize common concerns or common ground.
  • To acknowledge emotions but not as a central focus.

A reframe should be “acceptable” to the client or opposing party since it helps clarify perspectives and shows that there is an issue to be resolved.

Be careful, however, not to simply reframe a position just by toning it down.  This will only serve to anger the client or opposing party, and solidify that position.

Examples of Reframe Questions:

  1. So, it is important to you that…
  2. What I understand you to say is…
  3. What you are concerned with is…
  4. What you need to see here is…
  5. Your goal would be to…

Clients who seek legal advice generally have no effective communication with the other client.  Since they cannot agree themselves, they turn to their lawyers to find a way out.  They may not want a legal battle, but they don’t want to do nothing or lose either.

 

Resource:

  1. Training/Article: Listening Skills in the Collaborative Process, Prepared by Palliser Conflict Resolution, LTD, with Thanks to William Stockton

Listening Skills in Negotiation and Mediation

As a collaborative lawyer and trainer, I am constantly working on communication and negotiation skills. One of the reasons I became a collaborative attorney is that the skill set needed is in many ways the same as in mediation, and therefore easily transferrable. The information below although not originating in the collaborative practice area, was contained in large part, from an article for collaborative professionals and adapted herein for Mediation advocates and negotiators in the broader sense.

Effective negotiations and successful mediations require communication skills beyond those necessary for success in litigation.  The ‘winners’ in litigation are lawyers able to get agreement from a judge, jury or arbitration panel, to their argument.  The opposing lawyer and client are not expected to agree, only to accept the judgment against them.  In contrast, success for collaborative lawyers and mediation advocates requires agreement from all parties.  This is a high bar.

Dialogue, not argument, is the most effective path to success in mediation.  Listening while in dialogue is critical.  Leadership in dialogue begins with listening.  In our traditional role as lawyers we listen to: analyze, agree or disagree (argue or debate) or advise.  We need a different kind of listening as advocates in mediation.

  • listening for understanding; and
  • listening for something new.

Why dialogue is critical to success in negotiation and mediation

Clients who seek legal advice generally have no effective communication with the other client.  Since they cannot agree themselves, they turn to their lawyers to find a way out.  They may not want a legal battle, but they don’t want to do nothing or lose either.

Dialogue is a form of conversation which transforms different viewpoints into a shared, new understanding that acknowledges part of the truth each client contributes.  Agreement is not the measure for mutual understanding.  When two viewpoints differ we are tempted to assume that both cannot be right, so we look for the best solution (usually our own) to the problem and argue for it.  Dialogue points in a different direction.  The first step is for the clients with a problem to reach mutual understanding of their different viewpoints.

Two fundamental ground rules for mutual understanding are:

  • I know I understand his viewpoint when he acknowledges I do, and
  • any new understanding that emerges must respect the partial truth of both my viewpoint and his viewpoint.

In the usual case neither client is willing to play by these ground rules.
It is expected that a good mediator will:

  • recognize when the dialogue has broken down; and
  • know what to do to get the dialog back on track.

However, most advocates think that this is solely the mediator’s responsibility and not theirs. This results in a missed opportunity for the advocates to assist in this process if do not try to so these things as well.

There is a sequence of developments in the unfolding of dialogue:

  1. Mutual understanding of differences where clients know that their viewpoint is understood even though they have different perspectives.
  2. Mutual recognition of a something new, a possibility that both clients want.
  3. A shared commitment to work together toward specific results all see as possible and acceptable.

Listening is a critical skill for participation in dialogue.  Listening for understanding is the most effective technique for getting to mutual understanding.  Listening for something new is a way to transform the “don’t want” stories at the beginning of dialogue into a shared understanding of what is important to both clients (their interests).  These are the most challenging moves in the transformation of an argument into a dialogue.

 

 

Resource:

  1. Training/Article: Listening Skills in the Collaborative Process, Prepared by Palliser Conflict Resolution, LTD, with Thanks to William Stockton

Mediator Selection – When Marriage and Business are Combined

In recent years I have noticed a developing trend in divorce mediation. Specifically, there are many more marriages where the parties are also business partners. I first noticed this in my mediations involving married parties from other cultures; notably Asian, Hispanic, and Caribbean. Later, I noticed the same trend in those born in the United States. The businesses involved have been varied. Real estate companies, contractors, landscaping companies, restaurants, retail operations, and services, tend to make up the majority of the businesses in the cases I have seen.  A few have been professional practices. Most of the time there are business aspects that fall outside of the general domestic relations mediator’s knowledge or comfort level. The clients who come or have been directed to me know that I have experience in the corporate business world as well as the domestic relations area. In some cases, I have provided useful insight to the attorneys who are not accustomed to handling the business aspects of divorce, as they try to make certain they have been thorough in their representation. This is only one reason an advocate might want to seriously consider mediating in a divorce case where the clients are also in business together.

Business Continuity: Mediation is often beneficial and desirable where marriage and business have been combined because of the need to keep the business functioning as smoothly as possible during the transition, and because of the creativity, flexibility, and efficiency possible in the mediation process. There are some businesses where the parties remain partners or associated even after divorce. Actions and decisions needed in connection with the business operations can happen much more quickly and planning facilitated in the mediation process. On the other hand, when the parties want to terminate the business relationship, there are still decisions that need to be made preferably, with cooperation so as to minimize any negative impact on both parties. In order to get the most out of such mediation, a mediator knowledgeable in business and domestic relations should be selected by the parties. Such a mediator can draw from other similar cases and increase the options the parties can explore. There is another benefit.

Available Business Neutrals: Many times in these cases each of the parties have their own financial advisor in connection with the evaluation of their business interests. Often, if needed, a financial neutral that works with a mediator can provide useful input that enables the parties to get beyond impasse and develop a creative, mutually agreed upon resolution. Such a neutral is often acceptable to the parties since he or she is suggested by the mediator and not by either of the parties or their attorneys. In addition, the neutral financial has no particular allegiance and therefore the freedom to come up with what is likely to be a mutually acceptable resolution.  This route is often much more appealing and less costly than pursuing litigation.

Advocates’ Value: Today’s clients, particularly those engaged in businesses, are much more comfortable with negotiation, and with their lawyers who can assist them to reach their desired goals in this process. The clients retain more control over their fate and often feel more like they are receiving true value for their money, than when they leave everything to their lawyers and judges to resolve. I have seen on several occasions where the clients begin to take more active roles in their cases during the mediation. When this occurs, they are less likely to blame any perceived negative results or impact on their attorneys afterwards.  In addition, the developing sense of partnering with his or her attorney serves to enhance the positive image of the specific attorney, and the legal profession in general.

Minimizing Emotional Impact:  Another benefit is the particular skill of the mediator who is accustomed to handling business and domestic relations cases in the delicate balance of getting the parties to transition and change focus from emotional domestic relations issues to negotiation of business elements, then back to domestic relations issues with less emotional content. This can happen when the mediator is skilled at extending and maintaining the productive business negotiation environment to the generally more emotional domestic relations discussions. It is not that domestic relations mediators are unable to do this, it’s just that mediators who do both and have the experience with handling business and domestic relations issues simultaneously, have much more to draw from due to experience as well as knowledge and training, and can do so easily and efficiently.

So, the next time you have a case where business and marriage dissolution issues are combined, try engaging the services of a mediator experienced in handling both. See for yourself whether there are advantages in doing so.

Personality and Negotiation

It is a recognized fact that everyone has a different approach to negotiation. The personalities of the parties involved significantly affect the process and outcome of the negotiations. We often hear of the generally accepted four basic personality styles, Driver, Expressive (or Extravert), Amiable and Analytic. While it is true that most people have elements of each type in their personality, one is usually dominant, particularly in the negotiation process. Knowing this about the other party as well as ourselves provides basic knowledge that can be used to develop a more tailored strategy to address the personality aspects, with a potentially more successful outcome.

Drivers are:

  • Demanding and Direct
  • Bottom-line, tidy, practical, not time wasters.
  • Evaluates on the amount of available useful information, takes charge.
  • DECISIONS made QUICKLY, based on FACTS.

Extroverts:

  • Not stimulated by details; likes to consider multiple tracks.
  • Social – like informality, warmth, friendless, openness.
  • Solution oriented; flexible; likes to persuade
  • Short attention-span, not organized.
  • DECISIONS made QUICKLY, based on EMOTIONS.

Amiables:

  • Want to reach peace and agreement – value oriented.
  • Do not like change, pressure or feeling forced into decisions.
  • Do not like to force opinions on others; indirect.
  • Need time to think matters through, long attention span.
  • DECISIONS made SLOWLY based on EMOTIONS.

Analytic:

  • Orientated towards facts and process
  • Very precise; focus on details, not the relationship.
  • Thinks options through.
  • DECISIONS made SLOWLY based on FACTS; not FEELINGS.

SUGGESTED WAYS OF DEALING WITH:

Drivers: (1) Be careful (sparing) with small talk. (2) Avoid overloading with information as Drivers will make decisions with the least amount of necessary information. (3) Avoid being overly enthusiastic, as Driver’s might suspect your motives. (4) Use quid-pro-quo approach and be prepared for fast decisions based on the facts.

Extroverts: (1) Personalize the process and paint a good picture of what the benefits of the proposal would be for them. (2) Work in their hobbies and interests outside of the work environment if possible. (3) Recognize that there may be fast decisions based on emotions and level of excitement generated. On the other hand, recognize that the process may be stalled if no excitement or enthusiasm for the proposal can be generated.

Amiables: (1) Go slowly, develop trust and demonstrate that you really care about them and the “fairness” of the process. (2) Be careful not to offend. (3) Don’t use high pressure tactics or positional bargaining. (4) Decisions will most likely be slow, based on comfort level

Analytics: (1) Endeavor to be accurate at all costs. (2) Give information and go into as much detail as you can. (3) Expect slow decisions based on thoroughness in accumulating and analyzing of all data.

 

Things to Keep in Mind:  Enthusiasm works well with the Extrovert and Amiable, but the Driver and the Analytic will not respond well if there is too much of it. It will cause them to become suspicious and pull back.  Ask probing questions of the Analytic and the Amiable to make certain their interests and concerns are addressed and to establish a comfort level for them – giving them the time they need for the process to work. However, the Driver and the Extrovert will want answers not just questions, and may feel that you are not ready to bring about resolution if you have too many questions.

Extroverts and Amiable are moved by and respond well to emotions, enthusiasm, and energy, but Drivers and Analytics do not decide based on emotions and too much energy will make them feel that you are moving too fast.

 

Resources:

  1. Psychological Types & Negotiations: Conflicts and Solutions
    Suggested by the Myers-Briggs Type Indicator
    ; Prof. John Barkai William S. Richardson School of Law, University of Hawaii.
  1. Negotiate Your Way to Success, by Michelle LaBrosse, Founder , Cheetah Learning, WomensMedia.com.