The Smartest Thing to Do in Mediation

W-A-I-T: these four letters remind you to ask yourself Why Am I Talking? Silence is often your most effective negotiation technique.
 

Silence has two big benefits
The first benefit of silence is to be better able to respond. Too many people come to mediation with their attitudes so entrenched that they don’t listen. You cannot successfully respond if you have not listened—really listened—to the opposing party.

Do not multi-task. During a remote mediation on your laptop, no one may be able to see you scrolling on your phone. But you are cheating yourself of the opportunity to collect information to help you conclude the case. You can miss something important if you’re not paying attention.

Lose the condescension. If you come to mediation with the attitude that your side is righteous and the other side’s views are valueless so you don’t have to pay attention to them, the initial obstacle to reaching settlement is yourself.

The second benefit is that if you just stay quiet, the other party may rattle off information to fill the silence void that damages their own case.

Listen First

Lawyers in particular are prone to thinking about what to say next instead of taking heed of what’s happening in the moment. It’s why they can miss asking the follow-up question a deponent’s answer should have prompted. And it’s why they ignore signals that would help them settle their case.

As your mediator, my job is to recognize those missed signals and follow up with the participants to facilitate settlement.

JOY TO THE WORLD – LAW PARTNERS’ YEAR-END MEETING

Joy to The world! Year-end has come,
Accounting has totaled the fees.
Let ev’ry heart
prepare him room
And all of the partners sing
And all of the partners sing
And all, all of the partners sing

Joy to the world! The year was good,
And now divide the spoils.
Misters Fields and Floods have a fight.
Misses Rock and Hill watch in fright,
Repeating the annual scene
Repeating the annual scene
Repeating, repeating the annual scene

At last there’s an end, some truth, no grace
Each one their worth to prove
The glories of righteous hours
The rain made with superpowers
And all go home with a check
And all go home with a check
And all, all go home with a check

Happy Holidays!

Knowledge Management

KNOWLEDGE MANAGEMENT – CREATING A MEDIATORS LIST

Every organization should have a process for creating a collective memory. It’s called knowledge management.

Knowledge management preserves team members’ experiences so everyone on that team can access them. This efficiency avoids mistakes and duplication of effort.

Still, it is not uncommon for people considering mediation to send an all-hands email asking, “Do you know a good mediator?” or “Who mediates these kinds of cases?”

Does your organization maintain a list of mediators? If not, start today. Ask team members to provide names of mediators and include comments, good and bad. It can be as simple as a shared Excel document. Column headers might be: Mediator, Contact Info, Cost, Outcome, Comment.

To keep information current, whenever someone mediates, that person should report their experience.

Whether you already have a mediators list or need to create one, make sure Teddy Snyder, SnyderMediations.com,  is on it.

Four Necessities for Mediation Success

These four attributes are integral to an effective mediation.

Fairness
The process and the person conducting the process must be fair. What’s more, all participants must perceive them as fair. Mediation is a level playing field. This safe, neutral environment is a good place to test the validity of an argument.

The mediator is a professional neutral. Without preconceptions, she can serve as a sounding board for every person’s position. 

Respect
Agreeing to mediation shows respect for others. It signals a willingness to listen. This signal is reinforced by exercising courtesy and diligence in the scheduling process and following through up to, at, and after the meeting.

Communication
Any credibility earned before mediation is squandered if parties demonstrate they are not listening during negotiations. Failure to listen is shown by an inappropriate response, such as shouting at or insulting the opponent or refusing to continue participation.  It may seem counter-intuitive, but the mediator can facilitate communication between parties by separating them and using shuttle diplomacy to calmly convey each party’s message.

Trust
No negotiation result is satisfactory if the parties do not trust the other side to follow through. If mistrust has arisen due to past misunderstandings and broken promises, part of the mediator’s job is to re-build enough trust to resolve the dispute.

One solution to this problem may be to use a different negotiator at mediation, someone who does not incite personal animosity. Another solution is to make sure all agreements are specific and documented before parties leave the mediation. Particularly when the relationship has been hostile, the mediator is the linchpin in parties’ trust in a negotiated agreement.