Mediation and Negotiation by Skype?

Should you mediate by Skype?  Perhaps.  There are benefits and warnings.

When a recent case was scheduled and one client would not be present in person, an attorney called me to discuss the client’s participation by telephone.  After a short discussion, we decided to have the client (let’s call her Meg) participate via Skype.

Neither attorney had experience with Skype.  Both clients were experienced Skype users.  After some initial reluctance, all agreed to Meg’s Skype presence for mediation.  Still on the day of mediation, concerns surfaced.

We started early.  As a frequent user of Skype, I was comfortable.  I conducted telephone mediation as an appellate mediator for several years.  Thus, I was conscious of the differences the telephone could add and subtract.  With telephone mediation, you have to shift your focus.  Listening to tone of voice is exceptionally important.  Deep sighs and tempo are important as are pace and pauses.  My first course on mediation in 1997 was from Judy Mares-Dixon and Bernard Mayer at CDR Associates in Boulder, Colorado.  Judy was blind and demonstrated that when you cannot see, your focus alters and you pay attention to other details.  Judy encouraged us to try to heighten the use of all of our senses.

And, as we know, watching body language is also important.  It accounts for 50-65% of our communication.  While negotiating in-person, noticing body language happens out of the corner of your eye if you are trained.  With Skype, you must focus more on the images on the computer, intentionally noticing the clues.  Turning the computer so that the client can see body language of counsel and/or the mediator is also key.  One benefit of a computer is that unhelpful body language, exasperated sighs, and/or difficult conversations can be edited by simply turning the screen.  For example, if an attorney has a difficult message to convey, he can gather is thoughts, take a deep breath and relay the response in a more controlled manner.

My role as the mediator was tuned into new ways of helping lawyer and client through their negotiation process.  And, Skype was helpful for their difficult negotiation.  They were not trapped in the same room.  They could take brief breaks, eat a snack or read their mail during the breaks.

There were other benefits as well.  Meg was more relaxed.  Due to the issues in the case, she did not want to be physically present.  Whether or not her fears were justified, Skype alleviated her concerns.  As the mediator, I also thought about my tone of voice, the occasional problem of voices that break due to connectivity problems, and the ways those problems may be more difficult to control.

I also had an interesting experience when Meg muted us as she conferred with a support person.  As we watched her body language, it was clear from her crossed arms and angry expression, she was becoming frustrated or angry.  Perhaps she thought since we couldn’t hear, we would not know.  Out of courtesy and deference to her desire for privacy, and knowing that she may not understand what I could see, I felt it was most appropriate to end the call and send her a chat message.  My message stated, “We decided to hang up for now.  Give us a call when you are ready.”

As the case was nearing settlement, I sent the proposed settlement to Meg in a file on Skype.  She was able to print the document, ask questions, sign the final version, scan it and send the signed agreement back. We did run into technical problems on several occasions.  I would mediate via Skype again, but I recommend it only with a trained professional mediator who can work with the subtle communications differences and with a mediator who has technical Skype experience.

The Pull of Hate in Lawsuits

“Let no man pull you low enough to hate him.” Every year at this time, we are reminded of the great work of Reverend Martin Luther King, Jr.  So often I encounter people who seem to “hate” each other.

In a recent series of mediations, I encountered a number of people who began to “hate” each other.  Each time, allowing the parties to talk resulted in far less hatred.  Picture a conference table full of men in dark suits in one room angry about a dispute regarding a contract.  Distrust and hatred were palpable.  Down the hall, the other party to the contract was sitting with his spouse and his attorney.  He was sad and frustrated.  Both sides were distressed and disturbed.  They were good friends but significant problems had arisen.  A lawsuit had been filed, and for many months neither side had talked to the other.  The legal issues were complicated.

I mentioned early in the process that a few select men may need to speak to each other.  Attorneys were reluctant.  Clients were intrigued but wary.  After ordinary attempts at settling the dispute seemed to be yielding no results, I brought the key people together.  They shared stories.  They cried and laughed.  They solved their problem.  All indications of hatred disappeared.  Like so many others, these good people appreciated the opportunity to discuss the issues in a controlled setting with a trained mediator.

That day I felt I was working to correct that pull of hate, as I do more often than not.  ”Hatred paralyzes life: love releases it.  Hatred confuses life: love harmonizes it. Hatred darkens life: love illuminates it.” Reverend Martin Luther King, Jr.  Thanks Dr. King for reminding me of why I love my job.

Negotiating By Email

Should you negotiate by email?  Scientific American says no, citing a recent study involving 48 MBA students from three universities.  In the study, students were given $89 to divide with another person.  64% of the time, the students lied when writing a letter to the other person; however 92% of the time the students lied when they were sending an email to the other person.  Whether or not you think the study is valuable, think about whether you should negotiate by email.  First, try to negotiate in person, by Skype or by telephone.

But, this is not realistic.  So . . . what do you do if you need to negotiate by email?

1.  Be clear and concise but not terse.  Generally, the recipient will only read a line or two – maybe three if you are lucky.  They will skim.  So, get to the point.  Explain your interests, the options, your other alternatives clearly.  Read the email to see if it is too abrupt or interpreted to be rude.

2.  Be professional.  Open and close the email as you would a letter.  When I receive an email, I notice whether it is terse or professional.  Although I try not to be affected by lower case letters and strange spelling, I feel the informal language indicates the person writing the email does not care about me, the topic or my impressions.  Email messages from phones are different.  If a person responds to me from their phone, the informality is more acceptable to me.

3.  Read the email aloud to yourself.   Pause.  Think.  Read.  We send emails too quickly.  According to Psychology Today, studies have shown that nearly half of the time, recipients were NOT able to correctly interpret the tone and tenor of the email. Humor can be misinterpreted, mild displeasure can be read as a tirade, and serious comments can seem sarcastic.  We all have difficulty hearing our voice or email as anything other than what we intend.  Some people can effectively use dashes, dots, spaces — to indicate pauses.

As with all negotiations, pay attention.  Be professional.  Be clear about your priorities, and negotiating by email will serve you well.

Mediation and Horse Whispering

Early in my mediation training, a mediation trainer played a video of a horse whisperer.  Mediation is much like horse whispering, she explained.  I have been pondering her message for years.

Fast forward to 2011.  If you haven’t, I highly recommend you watch “Buck”, a movie released last year during the Sundance Film Festival.  Buck Brannaman, the real life horse whisperer, uses skill, gentle but firm guidance, humanity, listening, learning, patience — to train horses.  He quietly mentions the problem often lies with the people, the owners, rather than the horse.  He is not just whispering to the horses, he is talking to the owners.  He is teaching horses to work with people and people to work with horses. He is a mediator between horses and their owners.

But, how does Buck do it?  He first bonds with the horse.  He builds trust.  He then begins to work with the horse in predictable ways.  He is patient.  He watches the horse’s reactions.  He listens.  He simultaneously works with the owner.  He asks the owner about the problems with the horse. He listens. He explains his approach to the owner.  He is bonding with the owner.  He is gently guiding the owner to train the horse differently, with guidance rather than force.  To many it appears that he is training the horse.  But, he is clearly working with both the horse and the owner.  In one instance, Buck tells an owner she has too many horses and cannot be providing a quality of life for any of her horses.  Like many horse owners, she sees her horse and the horse training process differently and feels Buck has worked a miracle.

Mediators use a similar approach to guide clients and their attorneys to work together to resolve conflict. Mediators build trust with both sides based on years of experience as professional neutrals.  Mediators listen, learn and help people process the legal arguments and the various ways the court could rule. Mediators reframe the problem so both sides see it differently.  Force is not helpful; straightforward analysis is helpful.  The clients begin to form solutions.  With proper timing and careful presentation, mediators deliver hard messages about the problems with their case.  Cases often settle, and people feel the mediator has done his or her “magic.”

iPad Mediators

Have you ever been in a mediation and the damn mediator is working harder on his iPad than on your case?  Erg.  This is not the first time I have heard this complaint.  I have a friend who recently had this experience in a southern state.  He is an attorney well-versed in mediation who has mediated across the United States.  He was trying to get his case resolved. He had funds.  And yet the mediator was too busy smiling at his iPad to work the case.  So maybe the mediator was looking at his drop box.  Maybe he was reviewing a crucial contract or deposition.  In any event, it does not look or feel that way to the attorney or client, particularly if the mediator is smiling.

Don’t make the mistake of hiring the iPad Mediator — or, let’s say, the mediator who does not work hard to help the parties settle the case.  Find a mediator who will work your case, stay with it until it is settled — unless, of course, you don’t want to settle.

Working With the “Crazy Ones” in Mediation

Steve Jobs encouraged us to celebrate “the crazy ones, the misfits, the rebels, the trouble-makers, the round pegs in the square holes, the ones who see things differently.”

As mediators, we often meet these so-called “crazy ones.”  They are involved in litigation. They start businesses.  They take risks.  They see things differently.  Others may be frustrated with them, but experienced mediators can utilize their (seemingly rebellious) energy, their differentness, to help solve the conflict.  They can make life interesting and enriching. They often find themselves in conflict because they are not fond of rules.  Or, they view rules differently.  They may think about things on a vastly different level. Perhaps they are detail-oriented, even obsessive.  Rushing them is a mistake.  Perhaps they are big picture oriented.  Getting them to sit still while the other side processes can be crucial.  Often it is not what we say to such people, it is how we say it and when we say it.  Often both sides see the other as outrageous.  Our charge is to help both sides see the other’s perspective and find solutions – without labeling either side “crazy.”

This is a sneak preview of my presentation in Reno, Nevada on October 19, 2011 — “My Neighbor is a Sociopath: Working with Difficult Personalities,” for the Northern Nevada Chapter, Community Association Institute.  See, CAI Nevada.

HOA Boards: Mediation vs. Arbitration?

You find yourself on a community association board.  Homeowners are complaining about leaking roofs, damaged walls and soggy carpet.  The board’s attorney has filed a lawsuit against the roofer.  The roofer sued the general contractor and the developer who both blame the architect.  Over a year later, with sufficient information about the case, the lawyer suggests the board mediate the dispute.  What does that mean?  How should you vote?  Alternately, the other parties are requesting arbitration. What is the difference?

Mediation and arbitration are two methods of resolving disputes without going to court.   Arbitration is similar to court in that an arbitrator (rather than a judge) listens to evidence and makes a decision.  Unlike court, the parties (rather than the state) select and pay the arbitrator. However, if you are unhappy with the arbitrator’s decision, you have little recourse.  Generally, you cannot appeal am arbiter’s award except under limited circumstances.  Over the past few years, arbitration has become somewhat disfavored in some areas of law because many believe it does not save time or money, and arbitrators are reputed to “split the baby” rather than strictly apply the law.

In contrast, in mediation the parties hire a mediator to help the parties reach a mutually acceptable solution.  The mediator does not make a decision.  The mediator helps the parties find a solution both can agree upon.  After the case is settled, the parties enter into and sign an agreement, and neither side can or needs to appeal because they have agreed. Mediation is favored in most lawsuits, but community association cases are particularly good cases to mediate because often fostering good relations or expediting settlement is more important than winning in court.

How does this play out?  For the community association with significant leaks in the roof, the parties will likely agree to mediate. As a Board member you should have been informed that a multi-party construction defect lawsuit is expected to last 2 to 3 years – and is estimated to cost at least $250,000 in attorneys fees, depending on your jurisdiction.  Let’s say the repair will cost $2 million.  There is no guarantee the association will win the lawsuit, receive a $2 million award and be able to collect it.  The roofer and the general contractor may be bankrupt and unable to pay the amount awarded by a court.  Insurance may or may not cover it or be in effect.  In many instances, the insurance companies will seek to shift the responsibility.  Your lawyer may advise you there may not be coverage, even if you win.  Faced with all of this, attorneys often suggest hiring a mediator to assist in resolving the dispute and getting a settlement rather than taking these risks.  In mediation, the roofer, the developer, the architect, and the general contractor will likely agree to pitch in to fund some of the cost of the repairs.  You will likely compromise for a smaller amount, but the lawsuit is over.  More importantly, your board has incurred much less in attorney’s fees, and the amount available to fund the damage is no longer uncertain.  Possibly most importantly, the board can begin to hire contractors to fix the damage before the weather hits.