Category Archives: Dispute Resolution

Transforming Conflict into Productivity

Dan Simon (http://www.twincitiesmediation.com/), a committed transformative mediator, presented a thought provoking program at the Heartland Mediators Association (http://www.heartlandmediators.org/) annual meeting last week. In a day and a half, Dan summarized his 40-hour transformative mediation training using humor and great illustrations. My thoughts ran not only toward utilizing what I learned when I mediate employment disputes but also to how I could translate some of the principles to Human Resources (HR) and other managers.

I hope I can do justice to Dan’s message in this brief summary.  The core concept is that all conflict is a crisis in human interaction.  Midst-of-conflict, people tend to experience a sense of “weakness” (confusion, fear, disorganization, vulnerability, powerlessness, uncertainty, indecisiveness) and “self absorption” (self-protection, defensiveness, suspicion, hostility, closed-mindedness).  Sound familiar?  It’s complicated, because sometimes the weakness is masked by bravado or bullying behavior.  One way to deal with conflict is avoidance, time or distance.  But that isn’t ideal and sometimes people need help overcoming this crisis and restoring constructive interaction.  In the context of the training, that help would be facilitated by a mediator working with the people who are in conflict (and perhaps their lawyers). The goal of the conflict resolution process is to promote a dynamic shift from weakness to “empowerment” (clarity, confidence, personal strength, organization, decisiveness) and from self-absorption to “recognition” (attentiveness, responsiveness, openness to the other and appreciation of their situation).

The transformative mediator uses a non-directive approach based on these premises:

  • A person’s reality is unique to that person and based upon his/her life experiences;
  • People have inherent needs both for advancement of self and connection with others;
  • People are capable of making decisions for themselves – and want to do so;
  • People are capable of looking beyond themselves – and want to do so.

Techniques are discussed below, but as an aside, it strikes me that this approach is much more applicable to a divorce/family dispute or an employment dispute before lawyers are involved.  However, Dan Simon swears based on his 16 years’ experience that it is also a miracle worker in commercial litigated cases.  I supposed that’s because at their core, even battles between companies are really due to a breakdown in relationships.

So how is this useful to HR or a manager?  Let’s take an example using the transformative mediator’s techniques:

Imagine a long-term employee (Terry) with an okay performance record whose performance and attendance start slipping.  As the supervisor verbally addresses those problems, Terry’s attitude gets worse, bordering on insubordination.   So Terry is given a disciplinary warning – if you don’t shape up, we will take action up to and including termination of employment. Terry then goes to the HR rep and complains: my manager is harassing me due to age. The classic response (and good advice from my employment lawyer perspective) would be that the employer does a neutral investigation into the age claim – asking Terry “What makes you feel that way?”, comparing objective work records of younger workers, etc.  Unless there is a finding that the discipline is unwarranted, the investigation is essentially on a parallel track with the performance management process.  Legally, making a complaint doesn’t work as a shield from consequences due to performance deficiencies.

Alternatively, HR could use the investigation to get Terry – alone or with the supervisor – to move toward a position of empowerment and recognition.  A first technique is “reflecting” where the investigator would say back what Terry has expressed, matching substance and emotional tone. “So for you, what’s happening is that . . .” “What you seem to be saying is . . .”  “You’re feeling . . .” Hearing one’s own words come back tends to cause movement in perspective. The discussion could range from performance to attendance to why Terry feels age is playing a role. If the supervisor is present, the same questions can be asked of him, and this has the benefit that Terry and the supervisor hear the other’s position from a neutral person which can promote listening. The second technique is “summarizing”. “So what we’ve talked about is . . .” “There are several things you disagree about, including . . . “ Move from summarizing to “Checking in”.  “So where do you think the discussion should go at this point?”  Finally, “Staying/Backing out” means the investigator/mediator remains silent and lets Terry (or Terry and supervisor) discuss.  (This part is very very hard for someone used to directing discussions!)

The earlier conflict is addressed, the better.  And in the workplace, unaddressed conflict can turn into expensive, time-consuming litigation.  Finding opportunities to resolve conflict at its inception can truly pay off.

Mediation Guided by the Rotary Four-Way Test

First, a reminder of the Rotary Four-Way Test – of the things we think, say or do

1)     Is it the TRUTH?

2)     Is it FAIR to all concerned?

3)     Will it build GOODWILL and BETTER FRIENDSHIPS?

4)     Will it be BENEFICIAL to all concerned?

This is a follow up to my January 12 post on employment/personnel decisions and whether or not these principles are useful in mediation.

As I noted before, the test seems at odds with the self-determination component of mediation. In other words it’s not the job of the mediator to decide if an outcome is fair or beneficial to all, rather the question is whether the parties agree.  That said, going back to these basic principles could aid the mediator, advocates/attorneys and the parties to move toward a lasting resolution to their dispute.  Some thoughts:

Mediator. Mediators can get stuck in a process/technique rut.   However, for the best mediators, dispute resolution is never one size fits all.  This is well illustrated in Jeff Krivis’s book Improvisational Negotiation.   Consistent with the Four-Way Test, mediators should focus on the process, creating an environment that is fair, gives all sides an opportunity to be heard and to receive necessary information without being unduly pressured.    Encourage the parties to consider the global impact, asking whether there are business or personal relationships that will be affected – damaged or enhanced – by continuing with the dispute versus resolution.  This approach is more conducive to creative solutions that litigation cannot provide.

Advocate. What is an attorney advocate’s ethical obligation of candor in a negotiation where there’s also a responsibility and a commitment to get the best deal possible for the client?  Every continuing legal education program involving negotiation or mediation involves some form of this hypothetical:

A party to a lawsuit tells her lawyer to go out and get the case settled so long as it’s under $35,000.  Can her lawyer make a counteroffer to the opposing party for $25,000 saying “that’s all the authority I have” or “that’s our bottom line”.

Lawyers can spend hours of discussion time parsing out whether their ethical obligations of candor are violated under these scenarios.  So put on that ethics hat during the negotiations and ask: Has any information been withheld or communicated that would void the deal if it ever got out?  Remember, also, that a client’s definition of winning may not be the same as the lawyer’s. Recognize – and help the client articulate – interests beyond the monetary outcome, including business and personal relationships.

Party. One benefit of mediation and a negotiated settlement can be the ability to keep information private – but will it come out?  Is it something that makes something material you’ve said untruthful?  When evaluating the deal you’re willing to make, how will it impact not just you, not just the opposing party but people in your family, your organization and your reputation.  There will be a tomorrow and the next day and the next day to live through.  Whether or not you reach an agreement, you’ll be interacting with people, businesses, and the public – is this a decision you’re prepared to live with?

You Say Tomato…

I made a presentation last week on “Gender in Mediation: Negotiation & the Gender Divide” (sponsored by Associates in Dispute Resolution – my friends and colleagues Larry Rute, Patrick Nichols . . .  http://www.adrmediate.com/) and am REALLY glad to have that behind me.  Don’t get me wrong, I am fascinated by this topic and enjoyed every minute of the reading I did to prepare.  It’s just that there’s so much out there and it’s such a complex and nuanced subject that it’s hard to distill into an hour’s worth of useful, organized information.  It’s also a pretty volatile topic – we all have a gender and we all have a point of view.   Cutting to the chase  – and without going into the whole topic of stereotypes and perceptions and why or whether men and women think and communicate differently and who is better at negotiating under what circumstances –  here are some thoughts about how mediators, advocates or parties to a negotiation can help keep gender from getting in the way.

First identify where gender-nuanced dynamics may play a role in communication/negotiation, such as: advocate and party; opposing parties; mediator advocate/party; opposing advocates; multiple representatives of the same party (insurance company, spouses, business partners, company president, human resources professional, etc.).    Then:

  1. Recognize Your Own Biases & Preconceptions.  We all have them.
  2. Better Define the Process.  Studies show that gender tends to have more of an effect in high ambiguity negotiations than where the process is strictly defined and understood.
  3. Identify Gender Triggers. Men tend to negotiate better in a highly competitive negotiation while women tend to do better when negotiating for others.
  4. Take Control of the Shadow Negotiation.  The shadow negotiation is kind of like the metadata of electronically stored information and is that underlying web that encompasses how people treat each other, who gets heard, how cooperative they will be.
  5. But Avoid Appearing To Be Judgmental.  You know what I mean. . .
  6. Don’t Automatically Identify Competence By Gender Or Stereotypical Behavior.  Beware of assuming woman lack subject matter expertise.
  7. Don’t Misread Style Differences. Don’t mistake a more collaborative or cooperative approach to mediation as a signal of weakness in position or resilience OR an effort to manipulate.
  8. Properly Perceive The Impact Of An Apology.  It isn’t always a sign of weakness or admission of liability.
  9. Consider The Effect of Gender On Credibility.  Think strategically about demonstrating competence and trustworthiness to develop credibility.
  10. Understand Gender Styles To Keep Them From Interfering. Bringing subconscious biases, assumptions and behaviors into our conscious mind will help us to be more effective in dispute resolution.

When They Say It’s Not About The Money (It’s About The Money)

We spent a terrific Labor Day weekend in Highlands, North Carolina hosted by our friends along with the amazing Don and Stacey Schlitz from Nashville.  Lots of great music and good times.  Don and Stacey (who is a lawyer as well as a musician) sang us a song they wrote with the chorus above.  From all my years of litigation and mediation, it’s a pretty good rule of thumb.  Truly, it’s never only about the money.  The emotions underlying any dispute are complex.  That’s certainly the case in employment litigation.  Relationships with peers and supervisors at work are important to us and we spend as much awake time with these people as our families.  When those relationships turn on us, it’s really hard.  And it’s not just the employee who was fired – well-meaning managers or human resource professionals have an emotional stake also.  Even if it’s just two businesses fighting, companies are people.  Emotions range from competitiveness to anger to desperation to a desire for revenge.  And sometimes it really isn’t about the money at all – it’s getting closure.  But when they SAY it’s not about the money . . .

Improving the Lawyer/Client Relationship in Employment Litigation

It has been an eye opening experience to work closely with parties transitioning from thinking about fighting to thinking about settling.  The plaintiff turns to her lawyer with a hurt, puzzled look on her face:  “I thought you believed in my case.  You said we were going to tell the jury exactly what happened to me and they would find the employer guilty!  Why are you pressuring me to settle?  Is it because you just want the money?”  Or the Vice President of Human Resources levels a stony glare at outside counsel:  “We didn’t hire you to sell us out, we hired you to defend this case and bring in a defense verdict.”  While every circumstance is unique, I’m seeing enough common misunderstandings to warrant these observations about what lawyers can do better.

  1. Explain the process.  I mean really explain the process.  Even if your client claims to be ultra super sophisticated about litigation – especially if your client claims to be ultra super sophisticated about litigation.  Let them know what can be expected every step of the way in terms of timing, expenditure of resources and individual time investment.  Consider using a written outline that you can go back to, even if this isn’t a client that requests this kind of information.
  2. Define your role.  That is, tell the client what you’ll be doing is working hard to obtain the best possible solution to the problem that led to the litigation.  If you’re any kind of litigator, you should be able to sell this.  Because if you think about it, even for the most hard-nosed, see you in court advocate that really is what you do.   If you get the case by pounding the table with your rhetoric and delivering a rousing closing argument without putting that into context, you lose an opportunity to set realistic expectations for the client.  Because we all know that the vast majority of cases settle.  Sometimes we’re in a position of recommending to the client that they accept an offer that’s hard for them to swallow.  Other times we find they think it’s a sell out to consider settlement at all.
  3. Educate on possible outcomes.  You’ve had clients with unrealistic expectations about what the lawsuit can do for them.  Vindication!  Millions of dollars! Give me my job back and get everybody who was mean to me fired!  Humiliation!  Change corporate culture! Make me feel better!  Just leave us alone! In employment cases it’s mostly just about money and only in the settlement process is it possible to achieve some of these goals.  For example, the company can achieve certainty that this angry plaintiff won’t apply for every job that’s posted, risking a retaliation or failure to hire claim over and over again. A plaintiff can extract a commitment from his former employer to do diversity training, or investigate a brewing problem.
  4. Set and periodically reassess goals.  This process can identify unrealistic expectations and allow those to be sorted out before they turn into a conflict.  It gives a format for discussing evidence that is developing.  For example, “I know we discussed a goal of filing a motion for summary judgment on the retaliation claim, but now that I’ve seen the email discussing ….. that’s no longer realistic – it would just be a waste of your money.”  Or “we did define one of your goals as reinstatement, but the company’s attorney has made it clear that won’t be an option.  We have to look at other options.”
  5. Prepare the client for the multiple hats you’ll wear.  During the course of the litigation you’ll be communicating confidentially with your client; developing a workable relationship with opposing counsel that doesn’t hurt your client; strategizing; evaluating risks; negotiating; presenting your case in the strongest light possible.  In order to be effective, you use different styles for each of these roles.  A client that doesn’t understand what you’re doing and how, for instance, having a cooperative relationship with opposing counsel can benefit him/her with extensions of time, limits on discovery fights, etc may think those friendly communications indicate a sell out.  Delivering the closing argument in a mediation may polarize the parties and your own client would be better served with a focus on how to motivate the other side to settle.  Because they’ll never agree with you that they are the spawn of Satan – but they might agree it would be a good idea to end the fight.

Settling Employment Disputes Makes Sense

Over the years of representing mostly employers but some employees in employment disputes it has occurred to me TIME AND TIME AGAIN that if the case had settled early for what seemed then like an exorbitant amount that the plaintiff demanded a lot fewer total resources would have been expended.  Meaning add up what was paid to plaintiff in settlement after summary judgment was filed (let’s say $60,000), plus defense attorneys fees at a pretty serious hourly rate (conservatively, $50,000), out of pocket costs (travel, deposition transcripts, maybe an electronic discovery consultant (modestly, $15,000) . . .  Dollars alone make the plaintiff’s $75,000 early demand look like a great deal.  Especially when you realize that if $55,000 or $60,000 had been offered it would probably have settled for less.  But it’s not dollars alone.  Hours and hours of management time have been taken up gathering documents, preparing for and testifying at depositions.  The gossip network has been in full force throughout the litigation as the plaintiff keeps in touch with her former co-workers – resulting in lost productivity and some loss of credibility for management.  (“Get this – he admitted in his deposition that . . . !”) 

Don’t get me wrong – I’m not saying that just because a discharged employee makes noises about filing a lawsuit a company needs to throw money at it.   But (as I have often said to employer clients) there’s SOME amount of money that it would be worth to resolve ANY dispute early on – I might ask would you pay $500 if this could be over and behind us?  And that answer is pretty much always yes.  If the case really doesn’t have legal merit then maybe you can figure out a way to get it resolved for a small palatable amount that allows the plaintiff to save face.  And if it’s a case with enough murkiness (or big problems like a terrible document yet to be produced or a critical witness that will turn to Jello) you can’t win summary judgment on (other than state court in Missouri, but that’s a whole other story) then recognize that early on and see if you can reach a settlement that makes sense given all those factors you’ll some day be looking at with 20/20 hindsight.

My friend, mentor and former law partner Susan Hammer (an extraordinary mediator, formerly extraordinary employment lawyer) – http://www.susan-hammer.com/ – in Portland, Oregon alerted me to an interesting study on settlement decision-making.  She sent me an article she’d written for the Oregon Bar (available on her website) and gave me rights to borrow liberally.  I became engaged and fascinated and ended up writing “Let’s Make a Deal;  Settlement Savvy” which will be published this summer in the DRI In-House Defense Quarterly. I’ve spoken on the subject for the Missouri Bar Employment Section and at a UMKC CLE on the subject of alternative dispute resolution.  A short article on the subject is also on my website.  Bottom line – parties and their lawyers REALLY don’t do a very good job at deciding when to go to trial versus taking the last offer from the other side, it’s costing them a lot of money AND we’re getting worse at making these decisions than 40 years ago, despite enormously greater data to look at.