In negotiation, the two parties to the dispute are empowered: they have maximum control over the process and over the outcome.
Interest-Based Negotiation: William Ury and Roger Fisher talk about interest-based (also known as principled), or cooperative negotiation in their book Getting to Yes as a better way of reaching good agreements. This process can be used effectively on almost any type of conflict, whether the conflict is business or family related. The concept focuses on four points:
So interest-based negotiation involves trying to understand the other person’s viewpoint, actively listening to the other party, and thinking of each other as partners in negotiation rather than as adversaries. Explain your interests clearly and ask why the party holds the positions he or she does. Discuss these interests together looking forward to the desired solution rather than focusing on past events. Focus on shared interests. To invent options for mutual gain, brainstorm all possible solutions to the problem and then evaluate the ideas. Ask questions and reality test. And when interests are directly opposed, the parties should use objective criteria to resolve their differences.
Fisher and Ury also talk about having a BATNA at hand – the Best Alternative to a Negotiated Agreement. If negotiations fail, what do you do? The BATNA is the alternative course of action and the plan you are willing to execute if an agreement cannot be reached. Your BATNA gives you power while you are negotiating.
Positional Negotiation: Competitive or positional negotiation assumes that the purpose of bargaining is to obtain the best possible economic result, usually at the expense of the other side. The goal is to pay as little as possible if you are the defendant or to obtain as much as possible if you are the plaintiff. Negotiation is viewed as similar to litigation – someone must win and someone must lose.
The adversarial negotiation approach is a more aggressive competitive model. This approach may involve tactics such as: providing the other side with distorted facts that are beneficial to the competitor, asking for way more than you expect to get, using threats and ultimatums, applying time pressure, never saying yes to a first offer, flinching at proposals, withdrawing an offer, and using a decoy to draw attention away from the real issue. Theatrics are involved here.
What is wrong with positional negotiation? It does not tend to produce good results because the agreements reached tend to neglect the other party’s respective interests. Negotiators tend to focus on trying to “win” at the expense of generating better, long-lasting agreements and relationships.
Happy summer everyone! In the last six weeks four out of five of our kids graduated – two from college on May 1 and May 16, one from graduate school on May 6, and one from high school on June 15.
One graduation was virtual and we watched online, one was outside on a rainy and dreary day, one was inside and we wore masks, and one was held outside on a beautiful June evening. While our graduates were limited as to how many family members could attend graduation events, they were overjoyed to have graduations at all.
It is safe to say that all of our graduates are in a period of transition. Two are interviewing for jobs that are the right fit, one started working in northern Virginia at his first job out of college, and one is working two summer jobs while he prepares to enter college away from home. One child is moving to the Southwest and one child may be moving from a beautiful mountain state back East. We are going through our own changes as parents as well. I cannot imagine what life will look like in mid-August when our youngest packs up and moves into his dorm room – and then we drive away.
Feelings before and after graduation are complex. Students feel happiness and joy and a strong sense of accomplishment and pride. Yet they also feel anxious, fearful, grief, loss, sadness, and uncertainty. Graduations – and transitions -- are bittersweet.
To our Class of 2021 graduates: build resilience, stay positive, be empowered to live your life and, as John Legend told the Duke University Class of 2021, “Love should be your North Star. Let it guide you.”
I wanted to share the short piece that I contributed to the recent book created and edited by Michael Lang and Peter Nicholson. The name of the book is Family Conflict During A Pandemic: Stories of Struggle and Hope. It was published in May of 2021. The book is a follow up to the first book Michael and Peter created a year ago entitled Living Together, Separating, Divorcing: Surviving During A Pandemic. It has been wonderful to get to know Michael and Peter over the past year. Over 90 mediators and professionals from around the world contributed to the most recent book.
Courtney and Andrew met in college over two years ago. She is presently a senior at Colorado College and from Arlington, Virginia. He graduated from Colorado College in May of 2020 and is now living in Juneau, Alaska with his parents. They met when they were both studying abroad during college.
They started quarantining together during Courtney’s junior year in the Spring of 2020 when the pandemic first hit. Since only seniors can live off of campus, Courtney moved from her on campus dorm room into Andrew’s off campus house with his roommates and a girlfriend. Courtney says that Andrew has always had serious OCD issues, severe anxiety, and health concerns. The pandemic magnified these mental health concerns. Andrew also had no health insurance between January and June. Quarantining together was difficult, in part because Andrew was adamant that no one was to ever leave the house during that spring. He feared that going for a walk outside could result in death.
Andrew moved back home to Juneau after graduation in May of 2020. Courtney spent the summer in Arlington working two summer jobs. They kept in touch via texts, phone calls, and pre-arranged Face Time calls due to the four hour time difference. In October, Courtney went to visit Andrew and his parents after five months apart. She said that it was crippling to be apart from each other for so long. Courtney flew from Colorado Springs to Juneau and quarantined alone in the basement of the small family home for a week while trying to do online schoolwork with an unreliable wi-fi connection. She said that she could not even send emails or use Zoom due to internet issues.
Staying alone in the basement with no social interaction and no physical touch was brutal. Andrew and his parents stayed upstairs during the quarantine week. Courtney took three Covid tests at Andrew’s insistence. Juneau in the fall is cold and dark – the sun rises between 8:30 and 9:00 and sets around 4:00 p.m. After quarantine, Courtney and Andrew stayed in, cooked meals with his parents, took walks, went out for groceries, and slept at night in Andrew’s twin bed. Courtney longed for pre-pandemic normalcy where they could have gone skiing and hiking, spent time outdoors, had dinner with friends, socialized at coffee shops and bars, and spent time studying at the local library.
They spent the holidays apart. Courtney spent 20 hours flying from Arlington to Los Angeles to Seattle to Ketchikan to Juneau on January 27, 2021. She wore three masks on the plane and felt claustrophobic from the difficulty of breathing with all those masks in place. She says she has acne from the masks. She was afraid to remove her mask and eat on the plane, so she did not because others were snacking throughout the flights with their masks off. When she finally arrived late Wednesday night, Courtney felt awkward. She was desperate to touch Andrew but there was no hug, no kiss, no touch. Her expectations were set, though, from the October trip. She said it is pure torture to see Andrew in front of her but she can’t even see his face since it is covered by the mask.
Courtney went immediately down to the basement upon arrival into the house, and this time said she had to go crazy and yell at Andrew that he must come down to the basement with her for her quarantine week. He reluctantly relented and in turn, insisted that she wear a mask if his dog came down into the basement. His anxiety always goes through the roof right before she visits and when she first arrives due to his fear of getting Covid. It is hard for him to accept Courtney’s presence.
Andrew works for the state of Alaska, and Courtney has her thesis to complete. They will be working from home along with Andrew’s mom; Andrew’s dad is retired. Andrew’s parents are always in the house. Sunset is around 2:00 pm in January and the weather is cold and dark most days. Flooding is a concern in southeast Alaska and Andrew’s house has flooded several times.
Courtney says that pandemic life is hard wherever you are. She is an extrovert so the lack of social interaction is tough. She and Andrew have each other. The weather is too cold right now to spend time outdoors. She says that as hard as pandemic life is right now in Juneau, she made the journey because she is in a relationship with him and because he refuses to fly due to his severe pandemic anxiety. She says that she does love the beauty of Juneau. She plans on spending four to six weeks in Juneau and then will fly back to Colorado Springs to finish her senior year at the end of February.
Yesterday I taught my last Mediation class of the semester at George Mason University’s Scalia Law School. Karen Leichtnam joined us to discuss mediator ethics. Karen worked at Multi-Door Dispute Resolution in D.C. Courts for many years before retiring in 2020, and she held the positions of Civil ADR Branch Chief and Mediation Training Manager, among others. Karen hired me to be a mediator in D.C. Courts back in 2010. I’ve participated in many of Karen’s ethics training classes over the years at Multi-Door since mediators are required to be re-certified every two years by the Virginia Supreme Court – which includes completing ethics training every two years.
Karen reviewed key components of the Model Standards of Conduct for Mediators with my students:
1. Self-Determination: A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party make free and informed choices as to process and outcome.
2. Impartiality: A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
3. Conflicts of Interest: A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.
4. Competence: A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
5. Confidentiality: A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation unless otherwise agreed to by the parties or required by applicable law.
6. Quality of the process: A mediator shall conduct a mediation in accordance with these standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
7. Advertising and Solicitation: A mediation shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees.
8. Fees and Other Charges: A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation.
9. Advance of Mediation Practice: A mediator should act in a manner that advances the practice of mediation.
Ethical issues often arise in the mediation setting. What behaviors are right or wrong/proper or improper in mediation? Karen presented various ethical conflict scenarios to my students for discussion:
It's always sad to end the semester and to say goodbye to my students. "Every ending is a new beginning." -- Marianne Williamson
Zoom. Google Meet. Microsoft Teams. We used to work in offices or go to school for classes. Now many of us are working all day in little “Zoom boxes” where the line between work and rest gets blurrier everyday, along with our eyesight.
Experts say many who work remotely are experiencing the same side effect of quarantine: exhaustion borne from endless video meetings, known as Zoom fatigue. Students, attending hours of online class, five days a week, may experience the worst of it.
We’re all aware of the hypothetical solutions. More exercise! Avoid screens! Do something relaxing! However, all of these quick fixes are easier said than done. We think to ourselves: How can I exercise if I need to finish all my homework for today? How do I have fun when there’s a global pandemic going on?
In order to find out how we can become more energized throughout the day, we first need to understand how fatigue works — and why sitting in front of a computer, doing relatively little, is so exhausting. Luckily, scientists are actively studying the phenomenon.
In our brain, rewards can increase alertness, energy and motivation, which reduces fatigue. Even simple tasks, such as walking in the halls in between classes, can be rewarding for our brains and increase our energy. Our brains feel rewarded when we move or change environments or when we get social interaction. We may not realize it, but when we talk to someone in person, we are communicating through many non-verbal cues, such as our body posture and smile. On video calls, it’s more difficult to pick up on these cues, so we have to work harder in order to socialize, which results in us feeling more tired.
So is there anything we can do? Yes! Caring for our minds and bodies away from our screens can energize us, and that’s as important as making our digital interactions as rewarding as possible. Experts recommend:
Guest blogger John Barnes is a senior at H-B Woodlawn Secondary Program in Arlington, Virginia and a 2021 Health Video Fellow with PBS NewsHour’s Student Reporting Labs.
“We do not see things as they are. We see things as we are.” Anais Nin
Today in the Mediation class that I teach we discussed barriers to settlement in mediation, which include (1) cognitive barriers and the role of perceptions and (2) the impact of fairness. According to Dwight Golann and Jay Folberg in their book Mediation, The Roles of Advocate and Neutral, a key step in a mediator’s work is to identify the obstacles that are preventing parties from negotiating effectively. It is essential that a mediator develop skills to address the challenges of cognitive barriers and differing views of fairness in order to empower the parties to a dispute to reach settlement in mediation.
A solution to resolving conflict is to be aware that people often see the same situation very differently. Selective perception is at the core of our tendency to see the same events differently. The effect of selective perception is enhanced by confirmation bias – our tendency when perceiving conflicting data to give more weight to information that fits our pre-existing beliefs and wishes. (For example, a coffee lover may only read articles that discuss the benefits, and not the risks, of drinking 6 cups of coffee per day.) We tend to estimate the value of items by comparing them to benchmarks. The problem is that most people are anchored by the benchmark, not understanding how different their particular case may be from the comparison point. (Remember the MacDonald's case in 1992 where a woman who spilled hot coffee in her lap was initially awarded almost $3,000,000 for the burns she suffered?) We tend to be persistently overly optimistic about the outcome of legal cases. We are also overconfident about our ability to assess unknown facts.
Differing views of fairness are also at the center of many litigated conflicts and failed negotiations. Fairness can focus on the outcome as well as on the process. Both components shape parties’ willingness to negotiate and to accept settlements.
For example, in the Barry Bonds’ case in October of 2001, differing views of fairness played a large part in the parties’ failure to settle with each other. More than 40,000 fans were at the ballpark to see Barry Bonds add another home run to his record breaking total of 72. Bond’s 73rd home run ball landed in Alex Popov’s outstretched glove. Within seconds, Popov fell to the ground as a rush of people converged on him and the ball. Madness ensued. He dropped the ball. When Popov was pulled from the pile, the ball was no longer in his glove. At the same time, Patrick Hayashi was also knocked over by the crowd. While on the ground, the ball rolled toward him and he picked it up, claiming it as his own. Patrick Hayashi emerged with the ball in hand.
Both men claimed ownership of the ball and both thought it was worth over $1 million, based on the recent sale of Mark McGuire’s 70th home run ball for more than $3 million. Both men stated that principles of fairness entitled each of them to the ball. Several mediators suggested that the ball be sold and the proceeds split. Neither Popov nor Hayashi thought an even split was fair. Following 18 months of bitter litigation, the judge finally ordered that the ball be sold at auction and the proceeds split. The ball was sold for $450,000. Popov and Hayashi each received $225,000 minus auction expenses and attorneys’ fees exceeding $225,000.
What got in the way of Popov and Hayashi agreeing on decisions about Bonds’ home run ball? They were two strangers from different cultures with an all or nothing attitude about an object thought to be worth a million dollars that landed in their hands in an event on national television. There were no well established legal rules in this instance since both of them had taken possession of the ball lawfully. They both anchored the value of the ball with the sale of the McGuire ball. Selective perceptions and confirmation bias made each of them believers in the righteousness of the positions they held and in assessing what factors a judge would consider in deciding who had rights to the ball. They had differing definitions of fairness. Last, they were over optimistic about the value of the ball and judgmental overconfidence was at play with regard to how a judge would rule.
Source: Golan and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum
One of the most frequent questions I am asked when a prospective client calls for a consult is: what IS mediation exactly?
I respond by describing mediation and comparing and contrasting mediation to other methods of dispute resolution, such as retaining lawyers and litigating, hiring an arbitrator and using arbitration, or retaining lawyers and agreeing to use collaborative practice.
Here is how I describe mediation to new clients:
Happy Holidays everyone! This month we will have five kids heading home who range from age 18 through 26. We are looking forward to finding ways to enjoy family time while we are safeguarding our health.
ADR presentation -- I will be giving a speech to RLI Design Professionals as part of a training course on the 16th of the month on Alternative Dispute Resolution (ADR). I’ll be talking about dispute resolution through negotiation, mediation, collaborative law, arbitration, and litigation and giving case studies of how a business and a family resolved their conflicts.
Wrapping up the fall semester/Planning for spring -- I will also be grading final papers for the ADR class that I teach, closing out the semester, and planning for the Spring 2021 Mediation class at George Mason University’s Antonin Scalia law school.
Share your story -- You will recall that I contributed a short piece, Five Financial Tips When You Are Facing Divorce, to a book on pandemic relationships that was published in May of 2020. The book was pulled together very quickly by the wonderful Michael Lang and Peter Nicholson. They will be soliciting contributions in early 2021 for a new book. The idea is to present stories of how people have dealt with conflicts exacerbated by the stress produced by the pandemic. I would love to write about a story of resilience for my contribution that I will submit! I am happy to interview you and tell your story so please let me know if you have a story that you would like to share.
Reflective practice group -- I joined a reflective case consultation and study group headed by legendary mediators Woody Mosten and MIchael Lang. My first meeting was in early December with a small group of mediators from all over the country. Our mission is to learn from our colleagues and our facilitators. Our guiding principles are: (1) we are committed to learning from experiences through self-examination and (2) learning comes from self-exploration and self-discovery. And my goal in joining was to raise my conflict resolution strategies and skills and help my colleagues improve as well.
Goodbye 2020 -- 2020 has been a year like no other. I think we are all ready to say goodbye to 2020 and to welcome a New Year and a new beginning in 2021. I am finding inspiration from the following uplifting quotes: Abraham Lincoln said that “the best way to predict the future is to create it.” Helen Keller said to “resolve to keep happy, and your joy and you shall form an invincible host against difficulties.” Buddha said that “no matter how hard the past, you can always begin again.” Last, the Dalai Lama said to “be kind whenever possible; it is always possible.”
Happy New Year and can't wait to see you, 2021!
American University presentation: This month I had the pleasure of speaking on Alternative Dispute Resolution (ADR) to Matthew Pascocello’s American Legal Culture class at American University. The class was online, of course, due to the pandemic. It was interesting to note that students are not required to turn their cameras on during class. The students were highly engaged and asked lots of interesting questions. We started off with an icebreaker role play. Students played the roles of Sandy and Al who just broke up and needed to divide their stuff. Unbeknownst to Sandy, Al wants to get back together and unbeknownst to Al, Sandy has been seeing someone else. We did the role play three different times using eight different student volunteers: first as a negotiation, second as an arbitration, and last as a mediation.
Last ADR class of semester at GMU law school: I taught my last ADR class at George Mason University’s Antonin Scalia Law School, wrapping up my 7th semester teaching. The class focused in pertinent part on the work of Bill Eddy and high conflict personalities, as well as the work of Nina Meierding and cross-cultural and gender issues. It’s always sad to end the semester and to say goodbye to my law students.
High conflict personalities and Bill Eddy: I’ve talked a lot about Bill Eddy and high conflict personalities in previous blog posts. The core issue is that when a high conflict person is having a dispute with another person, the response that works is to immediately shift over from blaming, criticizing, and attaching each other to problem solving as a starting point. Bill says to connect with empathy, attention, and respect (EAR) and to use proposals as building blocks of making agreements. Read more about Bill’s approach in his book So What’s Your Proposal?
Cross-Cultural/Gender issues and Nina Meierding: Nina believes that everyone operates with implicit bias – we don’t even know we have bias most of the time. Bias affects everything that we do. Nina believes that by changing a person’s behavior, you can eventually change his or her beliefs. Here is a story that Nina shared with the Edwards Mediation Academy regarding a mediation she conducted involving cross-cultural and gender issues:
The mediation centered on a doctor who came from a country where there was a historical power distance between men and women. Due to his cultural beliefs, he made the work environment difficult for the nurses who worked with him. When Nina met with the physician, she said that he had the power to make one of three decisions:
1. He could believe what he wants about men and women, continue behaving the way he had been behaving, and the decision would be to not work at the medical facility any longer;
2. He could believe what he wants and decide to stay at the medical facility and change his behavior; or
3. He could change his beliefs and change his behavior which means he had decided to stay.
The physician chose Option #2. He asked Nina to help him change his behavior. By not trying to change his beliefs at the onset, Nina helped him change his behavior – and his beliefs may follow. (See Susan Franson Edwards’ 2018 article on Culture and Its Impact on Mediation.)
Academy of Professional Family Mediators (APFM) conference -- For many months, I had looked forward to attending the APFM conference for 2020 in Phoenix this month. The last APFM conference I attended in San Diego in 2018 had been wonderful. I loved meeting, interacting with, and learning from mediators and dispute resolution professionals from all over the country and the world. I remember taking back ideas from San Diego and incorporating them into my own practice. October is a perfect month to visit the Southwest and I had envisioned an intense few days at the conference and then moving on to visit the Grand Canyon, Saguaro National Park, Petrified Forest National Park, and Antelope Canyon, as well as beautiful National Monuments.
AFPM put on its first online conference instead. There were pre-conference workshops and then a welcoming plenary, “Engaging the New Online Family Mediation Field” that was well attended. We have all been forced into online mediation due to the pandemic and, surprisingly, the major of collaborative professionals online have grown to embrace it. On the one hand, we can meet our clients where they are in their homes, and online mediation is convenient for our clients. On the other hand, we need to work harder to make sure that our personal touch as dispute resolution professionals is not lost. Our guiding principles as mediators are to lead with compassion and to continue to find ways to build rapport. We also need to be really good with technology and ensure that privacy and confidentiality requirements are emphasized when we are online! I try to replicate my in person mediation style to the extent possible now that I am mediating online and make necessary adjustments.
Other sessions that stood out include a talk on “Building a Successful Mediation Practice”, moderated by Woody Mosten, as well as a session entitled “Essential Technology for Effective Online Mediation”, moderated by mediator, lawyer, and online expert Susan Guthrie. I highly recommend reading Woody’s article on Beyond Mediation Toward Peacemaking, in which he talks about peacemaking – “creating a sense of peace and mindfulness within our own lives and in our work by harnessing our core values and best personal attributes.” Susan has been mediating online way before the pandemic and is always beyond generous in sharing her wisdom and tips for improving the online experience for both clients and small business owners. I am really hoping that in 2021, we can all be together in person in Arizona.
George Mason University (GMU) Scalia Law School Class on Alternative Dispute Resolution (ADR) -- It’s hard to believe that I have just taught my ninth class of the fall semester with only four left. My students have been enthusiastic and engaged online as we engage in listening exercises, practice new skills, and use those newly acquired skills in various role play exercises. We have finished the negotiation and mediation units, and we began the arbitration unit this week. Arbitration differs greatly from mediation – arbitration is an adversarial process and the parties have no control over the process and the outcome. There is no appeal right and an arbitrator’s decision is final and binding. Arbitration is less expensive than a trial and can be more private than a trial; arbitration awards do not typically establish precedent for other cases. Next week retired judge, arbitrator, lawyer, and mediator Judge Paul Sheridan will be speaking to my class about arbitration – online via Zoom. I am really looking forward to watching my students interact with Judge Sheridan.
Pivot. Lead. Learn/Mastermind 2020 -- I am really grateful to have the opportunity to participate in this wonderful group online. Maura Fredericks, Coaching for Executives, offered to lead a business mastermind that started over the summer for small business owners. The focus of the mastermind group has been on (1) marketing strategies during the pandemic – how we can continue to innovate through economic uncertainty, (2) scaling and growing – how we can continue to take risks now that we are online, and (3) consulting best practices – how to define what sets our businesses apart and how we can continue to refine our practices during the pandemic. Each month a business owner is in the hot seat and prepares a document that states what type of support the business owner is seeking from the group, as well as goals and challenges. Little Falls Mediation is in the hot seat this month! I am used to listening and facilitating communication and negotiation as mediator, so being in the hot seat is a role reversal for me. I am really enjoying working with this wonderful group of small business owners and being able to support them – as well as accepting their support in my upcoming hot seat.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.