Tag Archives: Mediators

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 . . .