With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
The well-recognized psychological phenomenon known as “commitment to decision” or “escalation of commitment” poses a significant challenge to decision makers and negotiators. Once the commitment to decision hardens, otherwise intelligent and perceptive negotiators become increasingly entrenched in the continued pursuit of an original decision that from all objective data is doomed to failure.
Evolving research and studies, as well as my preliminary discussions with the September ADR panel presenters, emphasize that the selection of the “right” mediator is the most important step on the journey to a successful mediation. As the data and my conversations have reinforced, qualified mediators possess certain critical characteristics such as creativity, persistence, subject matter knowledge, and listening skills. I want to focus now on preparation.
In a recent article, co-authors Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering reviewed the statute establishing Michigan's business courts, the rationale behind it, and a comparison of arbitration, as well as offering a protocol for pre-litigation mediation.
Effective joint sessions just don’t happen by giving parties carte blanche to talk; like all other aspects of the mediation process preparation and planning are essential. Two of the fundamental purposes of the joint session are to persuasively impact the opposing party’s best alternative to a negotiated agreement (“BATNA”) and enhance the effectiveness of the discussions that will take place between the mediator and each party during subsequent private caucuses.