Mediation Tip: Be the leader, not the follower

February 18, 2015

In honor of President's Day, today's mediation tip honors leadership, and takes inspiration from Coach JOHN WOODEN, the celebrated UCLA basketball coach. In most mediations, people act, emote, and react to the other side's actions. Why is that? it's because human nature seems to compel us to do so. Where does it get us? Sometimes, a well-placed rant or outburst can help shift the dynamics of the situation; more often, all it gets you is frustration, and the reason is the other side is not doing what you want or expect them to do; furthermore, you feel helpless to control their actions and movements. Yet, the truth is, people just don't use their own power as often as they might, usually out of fear- fear that they won't be listened to, or will be laughed at, or make someone angry. Instead, they "choose" to react to someone else - their actions, movements, statements and negotiations.


Coach Wooden is often quoted for his pearls of wisdom, some of which I refer to in mediations: "While you can't control what happens to you, you can control how you react." "Focus all your effort on what is in your power to control." One of my favorites for mediations (and life) is this: "The more concerned we become over the things we can't control, the less we will do with the things we can control."


Bringing this discussion back to mediations, what normally happens is the plaintiff, the side bringing the claim, makes an opening "demand" and defendant, the side being charged or sued, responds to it. The defendant becomes upset with the plaintiff's high (referred to as "exorbitant" or "unreasonable") expectations and makes an extremely small offer in kind. The plaintiff then becomes upset with that move, and, makes a pecuniary 1:1 or maybe 2:1 movement, which to the defendant appears to be no move at all. What if instead, the defendant made the first move and presented its' "real" offer first for plaintiff to respond, instead of its' reactionary number? Defendant can then set the stage for what it feels is a reasonable starting number and range of settlement. As has been mentioned in prior posts, on occasion I have asked parties to give simultaneous offers to eliminate the "reactionary" move. Another way to take control is for each side, after hearing the other side's number, to write it or file it away, choose not to make a "responsive" or reactionary move, instead, to make the move that they feel is appropriate, after hearing all the evidence for and against themselves. A third way of taking control is to be direct (at the right time) with the mediator, to point out the "range" in which the party feels that the case can settle. The mediator has ways to engage in communications and negotiations with the other side, without actual numbers being exchanged, yet, try to explore methods to bring the parties to more common ground. A fourth way to gain control is to actually ask questions, seek to understand more about why the other side feels justified in asking for or offering such a number. The old adage "Knowledge is Power" is ever present in mediations. Once you have that knowledge, then you can assert your own power, in giving the number you feel is right, not just one that is prompted by the other side's number. Looked at in another way, demonstrating to the other side that you are listening to them, helps immensely in gaining their trust in your movements. President John F. Kennedy's famous quote, "...ask not what your country can do for you, ask what you can do for your country", could be applied in mediations, in the sense of considering what you can do for your other side, which may reap benefits for yourself. inspired by the doctrine of reciprocity. Again, you are gaining control, but, by giving control rather than taking control away.


Finally, if you don't get your way, and don't get the numbers from the other side that you feel are appropriate, you can prepare to leave or end the mediation. Emphasis is on "prepare" first, not just walk out. Yes, there are some limited circumstances where it is simply appropriate to "walk out". Doing so certainly is "taking control", however it may have negative consequences. For example, it is possible, after telling the other side that you will walk out if a certain range cannot be met, that the mediator could have gotten better movement from them. But, if you have already left, you will have given up that chance. In situations too numerous to count, a mediation had seemingly "died" but then revived, when one or both sides finally started taking "control" of what they wanted instead of simply "reacting" to the other side's lead.


So, with many thanks to Coach Wooden, and in honor of our great Leaders of this country, I encourage you to consider taking leadership in your next mediation or negotiation. It may get you better results, and you will feel better for doing it. Bringing this back to celebrating our country's Presidents, President Kennedy said, "Things do not happen. Things are made to happen." Take control to help make your goals happen.

 

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