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LEGAL
- April 2006 by Michael Troop Try Assisted Negotiation A valued customer has a different view of a situation that threatens your financial relationship. A partner decides to withdraw and suddenly the legal issues go beyond division of assets and liabilities. At least 90 to 95 percent of cases filed end up settled. Why then do parties start in court? Litigation is the expectation. But it should be the surprise. Control your own dispute, reduce expense and time and use a mechanism that achieves participant satisfaction in the process as well as the result. Before jumping into a lawsuit, consider mediation (negotiation with the assistance of a third party nonjudgmental neutral). Adjudication involves binding decision-making by courts, administrative agencies, or private arbitrators. It is adversarial, dominated by lawyers, aimed at establishing blame and ultimately about winning or losing. Assisted negotiation is more productive. The business manager (decision maker) is at the table with or without attorneys (who serve as advisors or spokespersons), gathering information, hearing first-hand arguments about the strength of the case, favorable and unfavorable facts, and recognizing potential options. Discussion is as wide-open or as tightly framed as the parties choose. The results and discussions are confidential, not subject to public scrutiny as are court-filed pleadings. The discussions start, end and restart at the parties’ discretion. Most importantly, an ongoing business relationship can be maintained, repaired or reconfigured, all to the parties’ satisfaction. A good mediator generates positive emotions by respecting the parties and providing an impartial forum. While a court proceeding is impartial, rarely do parties gain a sense that they are respected during the pre-trial and trial. Usually, the emotion is fight or flight, followed by vindication or disdain. The mediator orchestrates the pace and content of the information flow, sets the agenda of discussion and the meeting times and places, and is chairperson, timekeeper, and safety valve for worn emotions. Experienced mediators listen and move the parties from stated positions (wants) to explaining their interests (needs). Many times the mediator will glean the unmentioned opportunity that provides mutual gain. All human understanding is by interpretation, and yours and mine are not the only interpretations or perceptions. The mediator “translates” the communication. Sometimes whatever the “other side” has to say is rejected, not because of the substance, but because of who said it. The same idea may receive a fair hearing if presented by the mediator. A mediator assists in a realistic understanding of strengths, limitations and merits of a claim or argument. Relationships often fracture to the point that the parties lose sight of why they are in the dispute. One of the mediator’s duties is met when the focus moves from “emotional barriers” to issues. Mediators help find the “zone of agreement” – where the parties’ needs are met by expanding or subtracting the matters in play by some fair external standard. With that, intuition, and a sense that a resolution is achievable, they probe, knowing it’s just a matter of how to get there. Even after a deal is struck, closure can be elusive. Significant is the mediator’s assistance in arriving at an agreement that is workable and lasting. Select a mediator with appropriate training and an extraordinary ability to bring parties together. Most importantly, find a mediator who is familiar and comfortable with the neutral’s role, and choose as you would choose a surgeon – experience counts. So the next time you find yourself faced with a dispute, first try assisted negotiation. You will be no worse off. |
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Copyright 1996-2006, by Kentucky Business Online. All rights reserved. Editorial content
is copyright 2006, Lane Communications Group The Lane Report is a trademark of Lane Communications Group. All other trademarks are the property of their respective owners. |
