Tag: Negotiation Styles

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

 

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

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.