Negotiation Tips for the Holidays

Norman-Rockwell-Thanksgiving-thanksgiving-2927689-375-479The holidays are a series of negotiations.  Where do we spend the holiday?  Who will join us? Whose family recipe will be used for dinner? Most importantly, who will be present?  Will my feelings be hurt?  Will I hurt feelings? And, why is so and so always so loud or, alternatively, so quiet?

So, what tips will help you through the holidays?  It’s the stuff that mediators and hostage negotiators do every day.  Listen.  Really listen.  Actively listen.  Or, as one former F.B.I. hostage negotiator put it in a recent New York Times article entitled “Crisis Negotiators Give Thanksgiving Tips”, “Just shut up and listen.”   When people talk they give lots of information.  Often times just keeping people talking is the trick.

But, listening is a sometimes rusty skill in this day and age of electronic communications. We respond quickly to emails and messages.  We listen to respond rather than to learn.  If you want to improve your holiday, think about listening in a new way.  Listen to learn.  It’s actually a lot less work than responding, and you will learn a great deal.  You will learn what mediators and hostage negotiators need to know — what are your true interests, fears, needs  I always feel a little like I am not working when I simply sit and listen during mediation, but then I realize it’s productive.  The same goes for the pre-holiday negotiations and the holiday table discussions.  Before the holiday, listen to what others want and need (or even fear) in their holiday. Maybe they prefer a small gathering whereas you were hoping for the big Norman Rockwell holiday table.  Maybe they have different and or new people they are seeking to please.

And, once you are at the table, really listen.  You have to actually listen and want to listen genuinely, and let people know they are heard.  We call this active or reflective listening.  “So, your vacation sounds like it was filled with great dinners, nature, and relaxation.” Or you may want to validate a feeling or an emotion — “Sounds like your work is pretty frustrating these days with the difficult office manager.”

The holidays can be enjoyable if you just shut up and listen.


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Boastful Daughter Breaches Confidentiality: Father Forfeits $80,000

Seems innocent enough.  Father tells college age daughter he settled his age discrimination case against his former employer.  Daughter posts on Facebook (to her 1,200 friends), “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Patrick Snay was the headmaster of Gulliver Preparatory School where his daughter attended high school.  He was terminated and filed an action claiming age discrimination.  In 2011, the parties settled the case with Gulliver agreeing to pay Snay $10,000 in back wages, $80,000 in general damages, and $60,000 in attorneys fees.  The agreement’s confidentiality provision prohibited Snay and his wife from disclosing the “terms and existence” of the agreement, according to the Miami Herald.

Immediately after settlement, Snay told his daughter, Dana, that the case was settled, and he was happy about the result.  Dana posted to her 1,200 friends Facebook (many of whom were former Gulliver students), and Gulliver notified Snay they would not pay the $80,000.  Snay sued to enforce the agreement.  During depositions Snay claimed his daughter had suffered psychological damage during her enrollment at Gulliver and was aware her parents were in mediation.  He said he knew the restrictions but had to tell her something.  The trial judge agreed and enforced the agreement.  However, the appellate court reversed ruling Snay and his daughter breached the confidentiality provision of the agreement when she bragged about it on social media.

On a nearly daily basis, we review the confidentiality provisions with the clients.  Now I have something else to add — this cautionary tale.

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The “Ikea Effect” is Mediation

They are calling it a new psychological phenomenon, “the Ikea Effect.”  Three professors who have studied this phenomenon have found that people attach more value to things they build themselves, even if those things are imperfect, like a somewhat wobbly Ikea dresser.  In a series of experiments, Professors Mochon, Norton and Ariely and found that people who create their own items such as an Ikea table, Legos or Build-A-Bear, have increased feelings of pride and confidence.  The more effort people put into something, the more they come to value it.  They also found, however, that people who first felt incompetent and then succeeded at building their own item were the most vulnerable to the Ikea Effect. When National Public Radio ran a story on this, I was stunned by the similarity to the theory of why mediation is so successful.

Likewise in mediation, we know that if we empower people to arrive at their own solutions (rather than ramming it down their throats or deciding for them), the solutions are more durable, more likely to be honored by all parties, and the conflict diminishes over time.  The skill of the mediator is to allow parties to arrive at their own solutions, help them brainstorm without deciding for them, and seeing the pride that follows from the successful settlement of sometimes a long and drawn out lawsuit.  According to the experts, people enjoy greater satisfaction when they have been incompetent.  Where a lawsuit has erupted, the parties may well feel incompetent, and thus we often see a huge wave of relief come over parties’ faces when the agreement is finally signed and the case is resolved.

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Cultural Conflict and Forgiveness on Mount Everest

sherpas-mount-everest_66886_600x450Climbers and Sherpas had an intense and violent conflict recently on Mount Everest.  Like most conflicts, the presentation of the conflict, did not reflect each side’s feelings and needs.  It’s an amazing story of recognizing cultural differences and resolving conflict peacefully, taking into account the interests of both parties.

According to one source, three climbers above the Sherpas dislodged ice between Camp 2 and Camp 3 causing it to fall towards the Sherpas as the Sherpas were installing fixed ropes on the face.  One of the climbers wrote a blog detailing the fight and how the Sherpas attacked the climbers causing injuries.  According to the climber’s blog, the Sherpas told the climbers if they were not gone in an hour, they would all be killed.  However, the Sherpas claimed the climbers had ignored their requests not to pass as they installed the ropes, and how the climbers yelled inflammatory words in the Nepali language.  Naturally, it appeared both sides contributed.  The conflict culminated at Camp 2 when a mob of Sherpas attacked the climbers with punches, kicks and rocks according to CNN and  adventure journal.

But, what was really going on?  If you are a climber, you have invested an insane amount of money, energy, personal pride, and/or passion into your climbing.  You might be escaping your city life, pushing the envelope or just having fun.  You might be risking your life for a recreational pursuit.  Or, you might even consider it a spiritual journey.  If you are a Sherpa, you earn most of your family’s annual income in two months on the mountain.   This is your dangerous work where safety is essential.  You have also been raised with a deeply ingrained spiritual respect for the mountain.  And, your Buddhist beliefs might make you question those who make the dangerous climb for recreation or to add a bullet to the resume.  For example, According to National Geographic, the Incarnate Lama of the Tengboche Monastary recently said, “You can’t eat climbing awards or numbers of summits.”

The clash between the Sherpas and the climbers had been brewing for years.  The Sherpas have likely questioned the climbers’ motivations and attitudes for years, but their families are supported by the industry, so they stay quiet.  The climbers likely lack proper respect for the hard work of the Sherpas and probably fail to understand their concerns about the dangerous nature of the Sherpas’ jobs.  But, some believe the teachings of Buddhism led the parties to forgive each other and sign the Base Camp Peace Agreement stating:

““All those present agreed and committed that such activities must never be repeated by anyone in mountaineering and in the tourism sector. If any party is dissatisfied with the actions of another party, they commit not to go into conflict or use violence against the other party. Instead they commit to report the actions to the government representatives or relevant government recognized association present at the base camps, to come to an amicable solution between the parties.” It is a worthy and noble idea, and maybe it will lead to better understanding. But 50 years to the day since the first American ascent, the Everest climbing scene has become a complex mix of big-money efforts fueled by intensely goal-oriented people, where cultural and language differences easily lead to misunderstanding, all set in an extremely dangerous natural environment at an altitude that diminishes decision making and weakens the body. In light of all that, summiting might be the easy part.”

Wow.  They recognized their cultural differences and acknowledged they led to misunderstanding.  They committed to peace.  Impressive.

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Cooking Up Settlement: “The Martha” and Macy’s Go to Mediation

marthaWill Martha Stewart be able to make lemonade from lemons in her recent legal battle?  Will she cook up creative ways to recycle her lawsuit into an elegant business solution?  Like explaining how to remove garlic peels with ease during a recent Wait Wait Don’t Tell Me program, can she come up with graceful solution to her lawsuit?  What will she say about mediation after she emerges?  Will her attorney hire a trained and experienced mediator who will allow her creative juices to flow?

Judge Jeffery K. Oing took 3 weeks of testimony in the case before a creative light went on in his head, and he ordered Martha Stewart to mediation in her controversy with Macy’s.  Macy’s brought an action against J.C. Penney and Martha Stewart Living Omnimedia regarding J.C. Penney’s sale of Martha’s bedding, bath and kitchen items.  Macy’s claims exclusive contract rights to sell Martha’s products, and that Martha’s sale of those products to J.C. Penney’s violates that contract.  Not so fast, says Martha, claiming nothing prevents her from selling her products in her own store and the Penney products will be sold at “a store within a store.”  Sounds like a creative legal argument.  According to the New York Times, “the Martha” wanted to mediate earlier, but Macy’s previously refused.  Now the court has ordered mediation, and the parties have until April 8, 2013 to resolve the case.

So what will mediation produce? Consider the personalities involved.  I don’t know Martha’s attorney or the other parties involved, but Martha has been studied.  Sociologist Magalene Harris Taylor, author of “Martha Stewart as a Sociological Phenomenon” finds Martha’s success is due to her ability to embody contradictions.  She is committed to home and family, but her business sense and ambition are highly feminist.  She originates from a white middle class background, but appreciates different ethnic and cultural lifestyles.  She loves recycling ordinary household items into items that are both functional and attractive.  In a time when housework has become steadily devalued, she has taken a symbol of women’s subjugation, housework, and made it profitable.  In a newsletter citing Taylor’s article, Martha’s success is described as “a combination of contradictory ingredients: mix equal parts male assertiveness and female sensitivity, add a dash of white privilege, a cup of multicultural consciousness, and simmer in front of a live audience.”  So, will she bring all these qualities to the mediation table?

The parties have until April 8 to resolve the case.  Surely they will hire a trained, qualified and experienced female mediator who can relate to Martha, a mediator who works and maintains a mediation practice, a home and a family. And certainly Martha will use her assertiveness and sensitivity to brainstorm solutions with Macy’s.  Will she forge a new and profitable business solution?  Maybe she will orchestrate the merger of J.C. Penney’s (currently moving to jcp) and Macy’s – into “The Martha’s.”  Stay tuned.

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Weapons and Mediation

invented-first-gun-1Tragic and scary news story today about an attorney who was shot at a mediation in Phoenix. According to the media, the mediation was ending when the client went to his car to get something.  After a lengthy wait, the mediation participants began to leave and apparently met the client in the hall where he began shooting.  Apparently, the dispute involved a claim of about $20,000.  According to one source, the shooter had been sued to return money he had received to refurbish office cubicles.  The company claimed they subsequently learned the cubicles could not be refurbished, and they requested return of the money.  Apparently, that did not sit well.  Or, perhaps something happened during mediation to really aggravate the shooter.

Mediation is a process of conflict resolution.  Force is not a technique embraced by mediators.  Listening, understanding perspectives, probing priorities, providing guidance, and discussing the likely outcome in court are some of the techniques  mediators use to resolve disputes.  I have had a mediation or two where I was concerned about clients packing weapons.  After all, I live in the West where guns are not only available, but welcome.  In some rural communities, guns are standard fare in the windows of the pick up trucks.  One city in Utah is trying to mandate gun ownership.

In the past, I have asked clients if they are packing a weapon.  If they are, I ask them to take it to their car.  Emotions run too high in mediation to take a chance.  But, the question is whether anyone really knows that a person is packing a weapon.  Should we install metal detectors in our offices?  Should we schedule potentially high conflict mediations at the courthouse, so everyone goes through security?

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Hostess Twinkies Go To Mediation — Or Not?

At the bankruptcy court’s urging, Hostess and the Baker’s Union agreed to mediation to avoid the liquidation of Hostess and the loss of an estimated 18,000 jobs.  But is it really a mediation? The judge hearing the case, Judge Robert D. Drain, will be the mediator.  The mediation is tomorrow.  If they do not agree, court resumes Wednesday.

This is really not mediation, is it?

First of all, mediation is generally involves privileged settlement discussions that are inadmissible in court under the rules of evidence.  The idea is that the parties can talk about the case and brainstorm solutions without fear that their negotiations will prejudice the court. As I stated in my article entitled, Mediation Confidentiality and Enforceable Settlements: Deal or No Deal,

Confidentiality is a critical element of successful mediation. In order for the mediator, the attorneys and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly. Frequently, some of the motivating forces behind lawsuits are legally irrelevant and yet exceptionally important to understanding the conflict and facilitating resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want disclosed to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.

Second, mediation of complex cases requires a different type of preparation than trial preparation — for the attorneys and their clients.  See, “How to Achieve the Best Results in Mediation” and other articles on the differences between trial preparation and mediation preparation.  Less than a day of mediation preparation for lawyers and clients and the “mediator” is absurd.

Last, but not least, as my friend Jeff Kichaven explains in “Professional Mediators:  A Distinction With a Difference,” untrained judges are not mediators.  Enough said.  Maybe the judge is unwilling to facilitate the liquidation of Hostess. Perhaps he’s afraid he will no longer be able to purchase Twinkies and Ding Dongs, hoping for the return of the 1950s.  But, it appears that the Hostess recipes will continue, whether you make them at home or if the company is successfully purchased by one of the many suitors.

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How to Engage the Brain

How do you engage the brain to improve your work, your life, your teaching and your daily negotiations?

First, our brains do not like boring things. After about 10 minutes, we check out. More importantly, emotional arousal helps the brain learn.  Humor, anecdotal stories, and change in tone of voice or pace, helps the brain function. So, keep your points short, sweet and to the point. As you teach or negotiate, use a little humor or tell a personal story. If neither of those seem appropriate, try to provide an anecdote that may provoke emotions. The emotional change will help the brain retain and learn.

Second, stress adversely affects the brain’s ability to improvise, to retain information and to solve problems. So, create a relaxing environment to the extent possible. In this day and age, stress is nearly always presents. We need to make concerted efforts to diffuse the stress to allow people to learn and reach better agreements.

Third, our brains love us to be in motion. We evolved to walk 12 or so miles per day according to scientists. Oxygen helps the brain function. Use this information and have clients or students walk outside during a negotiation or a class. Exercise allows blood to go to the brain, bringing it glucose for energy, oxygen that helps absorb toxins, and stimulating protein that keeps the neurons connected. Likewise, if you are in a dispute, take a walk for 15 minutes. Your head will clear, and you will be able to think more clearly.

John Medina, outlines these and other concepts in “Brain Rules.” After watching his presentation in Seattle where he captivated me and a 100 other attorneys for over 2 hours, I was convinced he knew his stuff. I used these and other concepts in recent mediations and when I taught a week long intensive mediation and negotiation training at Pepperdine. It works.

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The “Secret Sauce” of Grief Counseling and Mediation: A Different Eye

I recently attended a session entitled “What Mediators Can Learn from the Brain Science of Grief Counseling” at the Northwest Dispute Resolution Conference in Seattle. I was interested that the lecturer, Professor John Medina, a molecular biologist fed up with current popular myths surrounding neuroscience and author of Brain Rules, was explaining a method of grief counseling that actually helps people who have been traumatized.

First, Professor Medina explained that grief counseling used at the time of the 9/11 disaster, Critical Incident Stress Debriefing (CISD) was actually exacerbating the trauma of the victims, as I discussed in my blog entitled “Recalling Traumatic Events: Cathartic or Destructive?”  Professor Medina explained that the process of having a person recall an event in detail immediately after the event,  has the effect of reinforcing the negative/traumatic aspects of the event.  Professor Medina introduced  a new method of grief counseling he named the “secret sauce” of Professor James Pennebaker.

Under Pennebaker’s method, the first step in assisting a trauma victim is to allow time to pass.  With the passage of a month, the brain has a natural tendency to remember positive rather than negative aspects of a traumatic event and may heal more rapidly. After a month has passed, the therapist has the patient, on 4 consecutive days immerse himself in the trauma for only 30 minutes per day.  During that 30 minutes, the patient is instructed to replay the event and experience the feelings of the event to develop a deeper sense of the event and how it has impacted them.  Professor Medina described the exercise as a process in which a person looks back on the event as an objective third party looking into the event.  The patient then journals the emotions he felt during the event, completely describing the emotions in an effort to more deeply understand how it impacted him. By viewing the event as an objective third party and journaling, the traumatized patient will begin to understand his or her feelings about the event, instead of simply his reactions.

Pennebaker’s researchers found that patients who journaled their feelings had less stress,  50% less fear and anxiety about upcoming procedures, healed more quickly and had fewer negative impacts from the traumatic event.

Mediators perform a similar function.  Rather than the patient creating the objective viewpoint, mediators listen to both sides and create for the parties a “third story” with a different eye that both parties can hear and understand.  For example, in a recent death case, an older gentleman drove into the broadside of a semi-truck, killing the gentleman.  His wife, sleeping in the passenger seat, survived.  As I talked with her, she envisioned the death occurring because her husband, through no fault of his own, could not see the semi-truck blocking the road.  That was the only explanation she could see based on her view of him as a loving, caring spouse.  When I mentioned that we would never really know if he had seen the vehicle.  We really did not know whether he was sleeping or whether he had passed out due to his medical condition because he was not here to tell us.  After repeating that third story several times, she began to understand that there could be another perspective on the accident that could affect her success in court.  She moved along in her grief and began to see the way towards settlement.

Mediators often communicate the neutral third story to both sides in an effort to have them see the dispute from a neutral vantage point.  Through this process, clients can see how perceptions may vary and may be able to view the event from a different eye, moving them closer to resolution.

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From Casinos to Universities: Teaching Negotiation and Mediation

So, I am honored to have been invited to teach at Pepperdine University’s Straus Institute for Dispute Resolution in May 2012, and in January 2013.  How did this happen?

I’ve been teaching mediation advocacy and negotiation for years, mostly to attorneys, some to law students and to college students.  But recently, it has exploded.

It all started to multiply this Spring when I agreed to speak to the Community Association Institute, Las Vegas.  As I walked through the smoky casino, I wondered what I was doing.  In the Fall, I had spoken to a similar group in Reno about working with difficult personalities in community associations, and they liked it.  So, here I was.

I was shocked to walk into an enormous room with seating for 200.  I’d better do a good job, I thought.   The group was interactive, they raised great questions, and the hour flew.  It felt like an intimate gathering.  I was having fun.

The very next day, I was at the J. Reuben Clark Law School at Brigham Young University in Provo, Utah speaking to law students about mediation.  I was immediately struck by the contrast to Las Vegas.  Younger students, fewer life experiences, no profanities allowed, and many pregnant women.  Still, we had an engaging, interactive discussion about mediating lawsuits in commercial cases.

In April, I agreed to be a Co-Adjunct Professor teaching Negotiation, Mediation and Conflict Resolution to a students getting their Master’s Degree in Public Administration at the University of Utah.  Teach on Friday nights and Saturdays? Still, it sounded fun. I was clearly nuts. But, what a fantastic group of folks in government. They are sharp and curious.

Later in April, I was in Washington D.C., at a combined seminar of the ABA Dispute Resolution Section and the International Academy of Mediators.  While there, I taught with Susan Hammer, Eric Galton and Jerome Weiss about moving attorneys and clients to productive negotiations rather than positional bargaining.  Professor Peter Robinson of Pepperdine University’s Straus Institute for Dispute Resolution and I went to lunch to discuss a closer relationship between the International Academy of Mediators and Pepperdine University.  Shortly after our lunch, he asked me if I would teach a one-week intensive program on Mediation Theory and Practice at Pepperdine University. Pepperdine University’s Straus Institute for Dispute Resolution has one of the finest reputations in the country for teaching mediation to law students, lawyers and aspiring mediators.  I had to make it work.  Pepperdine is where I send people who want training.  What a great opportunity.  And, as I sit here surrounded by materials, textbooks, and simulations preparing a syllabus, I am thinking — this all happened rather suddenly.

So, I guess it shouldn’t surprise me that a very close friend recently asked “What’s going on? Are you changing direction?” Well, my mediation practice remains busy. Teaching, however, is invigorating.  But when you teach, you learn.  And, as I mediated a most difficult case yesterday, all the tools of the trade were fresh on my mind allowing me to help those clients reach closure.

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