Monday, March 20, 2017

The Impact of Emotion in Negotiation

No reason to let emotions get the better of us in negotiation and sabotage our chances for a positive outcome.

Here's a new article of mine, "THE IMPACT OF EMOTION IN NEGOTIATION," co-authored with Alexander Zimmer, Esq., published in The RESOLVER, the Alternative Dispute Resolution Section of the Federal Bar Association's newsletter, March 2017. Please scroll to page 7.


Everyone wants to feel heard
Conflict Resolution 101
By Mallory Stevens

I was the one who spent years taking care of mom when she was sick and there’s no way you’re getting that money.” “Enough with the texting already!” “Really? That’s the dumbest idea I’ve ever heard!”

Whether we’re communicating with a significant other, family member, colleague or friend, everyone wants to feel heard. And when we’re in conflictwhen emotions are often inflamed it's easy for understanding to be compromised and agreement to seem impossible.

We all see things from our unique perspective, a product of our worldview, our subjective way of making meaning of the world. The way we frame things is a result of our family and socially constructed background, experiences, culture, education and identity.

So, when we’re arguing with each other, what are some steps we can take to try to overcome barriers to understanding, promote collaboration and have a chance to find some mutually acceptable way to resolve the matter?

Active Listening’s Fundamental

Listening’s not enough. Active listening shows the other we’ve heard him or her and that we really “get” what they’re saying – whether or not we agree. Active listening involves:

Reflecting Back
The next time you find yourself at odds with someone, whether it’s a simple disagreement or a full-blown argument, take time to reflect back, or paraphrase, what you’ve heard the other say. This helps ensure you’ve got it right (which, in emotional situations, you may not have) and shows the other s/he’s been heard. “You’re upset that I was checking texts.” “No, I’m upset that you’re always checking them.” If you’ve misunderstood, rest assured the other will correct you. Reflect back till you get it right. When the other feels heard, s/he will be much more likely to be able to hear you. It’s far less draining to negotiate with someone who genuinely attempts to understand us and what’s behind the position we’re taking, even if we have differing ideas, goals, needs and/or interests.

Asking Open-Ended Questions
“What was it like for you to take care of Mom?” is an open-ended question. “How many days a week did you take care of Mom?” is not. While there may be a natural inclination to assume we already understand another’s underlying needs and interests, assumptions can be inaccurate and, at best, counterproductive. The most effective way to discovering another’s underlying needs and interests is to ask pertinent, open-ended questions.

There’s a famous story permeating the conflict resolution literature that wonderfully illustrates the importance of identifying underlying needs and interests to the process of conflict resolution. It involves two sisters fighting over one orange. Each felt she was more entitled to have it and wouldn’t budge from her position. They ultimately decided to compromise and split the orange in half; upon doing so, one sister discarded the peel of her half and ate the fruit while the other discarded the fruit of her half and used the peel for a cake she was baking. If they had asked the right questions to understand the other’s underlying needs and interests, they both would have had a much more satisfying result: One sister would have had a whole orange to eat, the other an entire peel for her cake. Uncovering needs and interests is an essential part of conflict resolution. As a matter of fact, even in disputes that involve money, the process of uncovering needs and interests invariably reveals the disputes are never just about the money.

Reframing
When we’re arguing, we’re sometimes the recipient (and sometimes the perpetrator) of provocative comments. The only purpose they serve is to escalate the situation. Reframing, however, can help mitigate their effect. Similar to reflecting, reframing involves rewording what was said to you so as to remove any toxic or provocative comments, while maintaining the essence of the message. “That’s the dumbest idea I’ve ever heard!” might be reframed and reflected back as “I see you’re unhappy with my idea.” You’re showing you got the essence of message, but you’ve removed its toxicity. And the very fact that you’re not “taking the bait” can even be disarming to the other. Of course, as with any other skill, reframing takes practice.

Empathy
Your capacity to put yourself in another’s shoesempathyis one of the most important abilities you can have when trying to resolve a disagreement. Empathy acknowledges the other’s feelings and perspective. It doesn’t necessarily mean you’re agreeing with the other but it does need to be genuine. “It sounds like you had to make many sacrifices to take care of mom on your own and I can see how difficult it was for you.” The person hearing this is much more likely to be able to hear you. Empathy’s essential to opening a path to collaboration and, even if we’re not having an argument, it’s fundamental to real relatedness in any relationship.

Apologies

An insincere or ineffective apology can be worse than no apology at all. In his 2004 book, On Apology, professor of psychiatry Dr. Aaron Lazare asserts that for an apology to be most effective, it must be genuine, should acknowledge accountability for the offense and communicate regret or remorse. As he further indicates, other scholars believe one should also explain how the offense occurred and offer a commitment to not repeat it. “I know I’ve been texting and am truly so sorry. I can understand how disrespected you feel. I’d feel that way, too. I have a sick parent and realize I’ve had this exaggerated compulsion to keep checking my phone. From now on, I’ll take it down a few notches. I respect you and want us both to be able to enjoy our time together.”


Mind Your Emotions

What, you may ask, are you supposed to do with the anger, hurt and frustration you may be feeling? What you won’t want to do is ignore your emotions. Being mindful of them, that is, literally naming the emotion to yourself and even to the other, can actually help you manage it. When we’re emotional, our cognitive abilities can be compromised and the amygdala (our “reptilian brain”) kicks into fight-, flight- or freeze-mode. Mindfulness can help.

Mediation, If You’re Stuck

Okay, so you’ve taken all these steps, but you and the other are still stuck in your positions. You need to find a solution but are facing a concrete wall. This is where mediation can help.  A mediator’s a third-party neutral who helps facilitate a conversation between people in dispute who are embedded in their positions and are unable to negotiate a resolution on their own. The mediator does not act as a judge or decision-maker, but instead helps guide parties past their positional barriers and forward onto the path to a mutually acceptable agreement. The beauty of mediation is that the parties are empowered to create options for settlement on their own terms, as opposed to facing the uncertainty of a court-imposed, win/lose decision. Mediation's an informal, voluntary and confidential process that's a highly effective alternative to costly litigation. It saves time, money and prolonged stress and can even help improve damaged relationships. Because of its confidentiality, it can also help protect reputations. The agreements are legally binding and the benefits of mediation have long been embraced by bar associations, law schools and our inundated local, state and federal courts.

Moving Forward

Now that you’re equipped with your new conflict resolution skills and resources, designed to can help increase understanding and collaboration, it’s safe to say you can count on having opportunities to try them out.  After all, conflict’s a part of life. But that doesn’t mean it needs to drain the life out of you. 

Mallory J. Stevens, M.S. Negotiation & Conflict Resolution, is a divorce and commercial mediator as well as conflict resolution consultant in private practice in Manhattan. mstevens@msconflictres.com. www.msconflictres.com.


Monday, August 1, 2016

The Value of the Organizational Ombuds in Gender-Related Issues in the Workplace

[This article originally appeared in the November 2012 issue of The Independent Voice, a publication of the International Ombudsman Association.)

By Mallory J. Stevens

An organizational ombuds office can be an indispensable, valuable resource and important alternative to formal channels in the sensitive and often very complex issues related to gender.[1] These issues can affect not only employees (both female and male), but the organization and various other stakeholders as well.

Gender-related issues in the workplace – be they sexual or discriminatory in nature, overt or subtle, isolated instances or recurrent – are invariably quite sensitive and fundamentally more complex than they ostensibly may appear. An organizational ombuds, highly skilled in the interest-based approach to dispute resolution and a “process of discovery,”[2] provides an invaluable alternative to rights-based channels, particularly with respect to gender-related matters.

Howard Gadlin defines sexual harassment as “unwanted attention of a sexual nature, often with an underlying element of threat or coercion”; the “hostile environment” created is considered the most classic type of this harassment.[3] As the results of one meta-analytic study show, workplace sexual harassment can adversely affect psychological well-being, physical health and job performance[4] and can even result in post-traumatic stress syndrome.[5] Generally, victims are reluctant to formally report offensive conduct[6] and those who observe such conduct frequently say and do nothing.[7] As evidenced by lawsuits alone, sexual harassment can have significant ramifications for organizations.[8] So too can gender discrimination, which often manifests itself through exclusion, denial of “voice,” sabotage and wage inequities. This article presents three scenarios that describe gender-related issues and conflicts in the workplace and suggestions for how ombuds might work with individuals facing such situations.

Scenario 1: It’s not always sexual

Let us imagine Evelyn, a corporate executive who sees herself as the “token” woman in committee meetings, excluded from discussions and/or “talked over” by her male colleagues. Even an ordinarily confident woman may be trepidatious about directly confronting her offending colleagues for fear of being labeled as overly-sensitive, a troublemaker, childish, unprofessional, not a team player, too emotional, a whiner or not tough enough to hold her own with “the boys.” Evelyn’s concerns about her image in the organization have rendered her uncomfortable or even ambivalent about pursuing formal grievance channels. She may be confused as to how to proceed and may even begin to doubt her own professional capacity, personal merits and worth to the organization. This engenders feelings of frustration, anger and humiliation and leaves her feeling disregarded, unlikable, unworthy, depressed, resentful and unmotivated, particularly since, as she reports, she routinely experiences these offending behaviors from certain male colleagues.

Evelyn may be experiencing what appear to be among the more subtle forms of gender discrimination, what Mary Rowe refers to as “microinequities.”[9] Speaking to harassment in general, Rowe states that prejudice against people who are different is largely carried out in ways “small in nature, but not trivial in effect”; they are particularly potent when the cumulative effects are considered.[10] These behaviors are not necessarily overt. They may be fleeting and difficult to substantiate and, in fact, may be unintentionally or unconsciously perpetrated.[11]

An ombuds can help develop insight An ombuds could listen actively to Evelyn’s depiction of the problem, identifying her needs and interests – past, present and future.[12] The ombuds could ascertain and analyze root causes and help guide Evelyn to a deeper understanding of the characteristics of her dealings with others and her effect on others.”[13] As a neutral party, the ombuds also would try to capture a clearer sense of whether the alleged affronts were real or perceived (or somewhere in-between), encourage Evelyn to describe her history working with these male colleagues, identify any additional stakeholders, and determine whether any other factors may contribute to Evelyn’s sense of mistreatment. Such information could help Evelyn develop a more thorough understanding of what has occurred and might also serve to expand the list of possible options she could take to address her concerns. Evelyn might ultimately choose to have the ombuds coach her in how to address her colleagues’ behavior in a direct manner (executed in person or in writing) or perhaps give the ombuds permission to speak to one of the respondents (preserving the complainant’s identity).

It is also possible the perceived offenses have been unintentional and more a function of differing conversational styles. In that event, a more generic option could be for the ombuds to suggest that staff receive training in effective communication skills. In her book, You Just Don’t Understand: Women and Men in Conversation, Deborah Tannen writes that sometimes interrupting a speaker can be inadvertent, while having the impact of domination and control.[14] She recounts a story in which certain individuals in a group were accused by the other speakers of interrupting and dominating the conversation; the former denied any such intention, wondering rather “why the others had been so reticent.” Tannen differentiates between “high considerateness” and “high involvement” styles of conversation; those exhibiting the former style try not to impose themselves and anticipate more silence between speakers as they take their turns speaking, while those with the latter hold animated participation as more important and jump in to fill the uncomfortable voids in the conversation.[15]

Perhaps Evelyn is excessively careful about her behavior in meetings (giving precedence to form over content), not wishing to appear too aggressive or “unfeminine.” According to research, women seem to feel obliged to decide “between being perceived as likable because they behave in stereotypically feminine ways (being caring, cooperative, and nurturing) or being perceived as competent because they behave in stereotypically masculine ways (being self-confident, independent, and assertive).”[16] While psychological counseling is outside the purview of ombuds’ responsibilities, an ombuds might enable Evelyn to enrich her perspective of the situation at hand. With respect to other stakeholders, such as the men involved and the organization itself, they might benefit from resolution of the issue by virtue of potential contributions that Evelyn theretofore might not have the opportunity or comfort level to make.

Scenario 2: Culture-shock

Concurrent with increased globalization, workforces have become more diversified than ever.[17] Such an amalgamation of worldviews, cultural norms and customs can be a veritable breeding ground for misunderstanding and conflict, especially where gender is concerned.

Let’s envision Ricardo, a 45-year old banker who has emigrated from South America to work for a financial institution in New York City. His supervisor, Susan, also 45 but born and raised in the United States, is quite senior in the organization and known for her demanding style. Ricardo historically has worked in substantially male-dominated organizations, wherein his relationships with female subordinates were always friendly; his customary compliments on a new hairstyle or dress always seemed appreciated. Susan, on the other hand, is “less than enchanted” when Ricardo acknowledges her strikingly blue eyes; in fact, she sternly reproaches him (in front of three colleagues, two of them women) for being “sexist and macho” (privately summoning up the stereotype of the “Latin lover”) and admonishes him that if it happens again she will report him for sexual harassment.

Although he apologizes, insisting he meant no disrespect, Ricardo is nonplussed and mortified; he has never experienced such a reaction from a woman, not to mention such a reprimand and threat, and can’t decide whether he feels more emasculated or angry. The whole incident has touched upon his sense of self, his very identity as an accomplished, well-liked and respected professional. Furthermore, Susan’s attitude has turned decidedly aloof, and he is aware she is excluding him from some business discussions. Terribly distraught, it’s difficult for him to ponder his options. Will he be opening a Pandora’s Box by going to Human Resources (HR), Compliance or another executive? Will such a conversation get back to Susan and possibly others? Will he still have his job? His dignity? By now, Ricardo is beginning to feel himself a victim of sexual harassment and gender discrimination perpetrated by Susan.

A skilled ombuds would understand that a good part of the gender-harassment issues here are rooted in differences in cultural norms and worldviews. These could encompass everything from communication styles, Ricardo’s feelings about reporting to a woman, power asymmetry and Susan’s management style and personality. Does Susan have a reputation for being retributive and unapproachable in the context of disputes? Might Susan have something else going on in her life (chronic back pain, impending divorce, a sick child) that provoked such a strong response? Is Ricardo’s rendition of the incident and its aftermath accurate? How can Ricardo best find solace and rediscover enjoyment in his work? Inasmuch as an ombuds also functions as a coach, Ricardo might be helped to comprehend the dispute with Susan from her vantage point, taking into consideration cultural and other differences.[18]

Working with Ricardo to jointly develop a range of possible options, Ricardo might decide to go to HR or Compliance; approach Susan personally or in writing, with coaching from the ombuds; extend a more effective apology; or authorize the ombuds to mediate, facilitate a conversation or use shuttle diplomacy. Alternatively, he might do nothing and see if, in time, he could repair his relationship with Susan; request a transfer to another department or office; or leave the organization. If the ombuds felt it were warranted, s/he might even offer to refer Ricardo to a psychological counselor who could help him work through his emotional distress.

The possible benefits of Ricardo’s visiting an ombuds office could extend well beyond Ricardo. Colleagues could benefit by not having to endure the tension and ill will that may have pervaded their department. Susan could profit from a more motivated and productive team member. The bank itself could reap the benefits of more productive and happier employees, and the shareholders could stand to reap the benefit of increased profits. As an agent of change, the ombuds could also be a catalyst for minimizing the recurrence of similar problems, even on a systemic level.[19] One way might be to coordinate with HR or Compliance for organization-wide, “refresher” training in anti-sexual harassment, diversity issues and maybe even effective communication skills.

Scenario 3: Wage disparity

According to a study released by the Institute for Women’s Policy Research in April 2010, “[w]omen’s median earnings are lower than men’s in nearly all occupations, whether they work in occupations predominantly done by women, occupations predominantly done by men, or occupations with a more even mix of men and women.”[20] Furthermore, the disparity in wages is manifest in both the highest and lowest salaried positions for women.[21] For example, in the three highest paying jobs for women in the United States, i.e., CEOs, pharmacists and lawyers, women make only about 75% of what their male counterparts earn. The overall wage gap with respect to all lines of work remains at 77%.[22]

Rebecca is a manager in a major manufacturing firm. Along with her colleagues, Evan and Jim, she’s been with the company for eight years. The men are married with one child each, while Rebecca is a single mother of two. All three have MBAs. Notwithstanding Rebecca’s excellent performance review, her boss has informed her that economic circumstances will preclude her from receiving a salary increase beyond the new 3% cap. Given her tenuous financial situation, Rebecca is distraught; however, the fear of appearing too demanding, pushy or unlikable renders her silent.[23] To add insult to injury, she’s just learned that Evan and Jim earn 23% more than she!

While cognizant there are statutes in effect that govern such gender discrimination, Rebecca has no idea what they are, how effective they may be or whether she may have a legal case against her firm. In sum, she is confused and anxious and knows not where to turn. Furthermore, she has no confidence in her ability to successfully negotiate with her boss[24] and is afraid that if she goes to HR to ask questions about her rights and alternatives, her boss will find out and retaliate against her.

An ombuds could research Rebecca’s questions regarding current legislation, furnish information regarding any relevant statutes of limitations and explore possible options. Rights-based options could take the form of an on-the-record complaint to HR or Compliance or ultimately engaging an attorney. Rebecca might also choose to have the ombuds coach her in negotiating skills so as to approach her boss with a greater sense of confidence and empowerment.[25] She might even opt to bide her time while seeking new employment elsewhere.

Need for informal and formal options to address gender-related matters in the workplace

While a few activities of an ombuds office may overlap with those of HR, Compliance and other offices (e.g., furnishing information on policy and legal statutes of limitations[26] and arranging certain training), there are critical differences that render the ombuds office a crucial resource for complaints and concerns; this is particularly true where gender-related issues are concerned. Besides the special conflict resolution skills and training of the ombuds, including an interest-based approach, the office is differentiated by the four sacrosanct principles to which it adheres: independence, confidentiality, impartiality/neutrality and informality. For an individual with gender-related issues, whether real or perceived, this quartet of principles can help make the difference between resolving physically, emotionally and professionally distressing matters, and perpetuating and exacerbating the harm.

More than individuals at stake

Resolving problems before they have a chance to escalate is far more healthy for an organization than if they go undetected, fester and explode into serious situations with a myriad of negative consequences; expensive lawsuits, stressed management, stressed employees, low morale, diminished creativity and productivity, tainted reputation, reduced earnings and “displeased” regulators who levy hefty fines are but some of the potential ramifications. For example, in Rebecca’s scenario, if an ombuds were to identify a trend whereby a number of other women in the organization had been complaining about a gender wage disparity, the ombuds could recommend the organization revisit its pay scale. If an organization’s management is unaware of rampant discontent – not to mention the serious potential for litigation and censure by the Equal Employment Opportunity Commission or a similar body in other countries – the consequences can be severe and widespread.

And, not in the least, happier, healthier and more tranquil employees are more productive, more dedicated and more loyal employees. The tangible and intangible benefits of an ombuds in the workplace – the office’s effectiveness and value to the individual, the organization and a variety of other stakeholders – are indisputable and indispensable.

References

[1] All the resources and benefits of an ombuds office discussed herein are true for all types of complaints and concerns that employees may have; however, the focus of this article is the importance and effectiveness of the office as specifically related to gender issues.
[2] Gadlin, H., & Sturm, S. P. (2007). Conflict resolution and system change. Journal of dispute resolution, 2007(1); Columbia public law research paper no. 07-147 (pp. 1-60).
[3] Gadlin, H. (1991). Careful maneuvers: Mediating sexual harassment. Negotiation journal, 7(2). (pp. 139-153); direct quote, p. 140.
[4] Chan, D. K-S., Chow, S. Y, Lam, C. B. & Cheung, S. F. (2008). Examining the job-related, psychological, and physical outcomes of workplace sexual harassment: A meta-analytic review. Psychology of women quarterly, 32(2008). (pp. 362-376).The authors posit that age may mitigate the impact of harassment, since older adults are generally better equipped emotionally to cope; on the other hand, older adults might be more concerned about job and financial security.
[5] Schneider, K. T., Swan, S., & Fitzgerald, L. F. (1997). Job-related and psychological effects of sexual harassment in the workplace: Empirical evidence from two organizations. Journal of applied psychology, 82(3). (pp. 401-415).
[6] Gutek, B.A., & Done, R. S. (2000). Sexual harassment. In R. K. Unger (Ed.), Handbook of the psychology of women and gender. (pp. 367-387). New York: Wiley.
[7] Bowes-Sperry, L., & O’Leary-Kelly, A. M. (2001). Bystander intervention in sexual harassment. [Paper presented at the National Academy of Management Meetings, Washington, D.C.].
[8] Schneider et al. 1997 op. cit.
[9] Rowe, M. P. (1990). Barriers to equality: The power of subtle discrimination to maintain unequal opportunity. Employee responsibilities and rights journal, 3(2). (pp. 153-163); direct quote, p. 153.
[10] Ibid., p. 153.
[11] Ibid.
[12] Wagner, M. L. (2002). Ombuds office: Dealing with really stressful or unstable workplace situations. Available at http://www.columbia.edu/cu/ombuds/.
[13] Wagner, M. L. (2000). The organizational ombudsman as change agent. Negotiation journal, 16(1). (pp. 99-114);
[14] Tannen, D. (1991). You just don’t understand: Women and men in conversation. New York: Ballantine Books.
[15] Ibid., p. 196.
[16] Tinsley, C. H., Cheldelin, S. I., Kupfer Schneider, A., & Amanatullah, E. T. (2009). Women at the bargaining table: Pitfalls and Prospects. Negotiation journal, 25(2). (pp. 233-248); direct quote, pp. 235-236. Also, Bowles, H. R., Babcock, L., & Lai, L. (2007). Social incentives for gender differences in the propensity to initiate negotiations: Sometimes it does hurt to ask. Organizational behavior and human decision processes, 103(1). (pp. 84-103).
[17] Howard, C. L. (2010). The organizational ombudsman: Origins, roles, and operations: A legal guide. Chicago: ABA Publishing.
[18] Wagner 2000 op. cit.
[19] Ibid.
[20] Institute for Women’s Policy Research (2010, April 20). Fact Sheet: The gender wage gap by occupation. [A. Hegewisch & H. Liepmann, Preparers]. (IWPR #C350a, updated April 2010; pp. 1-9); direct quote, p. 1. Retrieved 20 April, 2010, from http://www.iwpr.org/pdf/C350a.pdf. The study was based on recent data produced by the U.S. Bureau of Labor Statistics.
[21] Ibid., p. 3.
[22] Censky, A. (2010, April 20). Women in top-paying jobs still make less than men. Retrieved 20 April, 2010, from http://money.cnn.com/2010/04/20/news/economy/highest_paying_jobs_for women/index.htm.
[23] Bowles et al. 2007 op. cit. The authors posit women are reluctant to initiate negotiations, in particular with male supervisors, for fear of appearing demanding and perceived as not nice. Among their other findings is that how nice or demanding one is perceived to be can explain opposition to females in negotiation.
[24] Gadlin 1991 op. cit. Also, there are numerous studies that find gender differences in negotiating effectiveness. For example, women generally have lower confidence in their negotiating abilities (See Stevens, K., Bavetta, A., & Gist, M. (1993). Gender differences in acquisition of salary negotiation skills: The role of goals, self-efficacy, and perceived control. Journal of applied psychology, 78(5). (pp. 723-735); Bowles et al. 2007 op. cit.). Their lower expectations tend to be reflected in their behavior during negotiation and, ultimately, in the results (See Kolb, D. M. (2009). Too bad for the women or does it have to be? Gender and negotiation research over the past twenty-five years. Negotiation journal, 25(4). (pp. 515-531).
[25] Wagner 2000 op. cit.
[26] Neither the ombuds, HR nor Compliance provides legal advice.




Monday, July 18, 2016

Why Litigate When You Can Mediate? -- Mediation Saves Money, Time & Stress

A condo board with a multimillion-dollar lawsuit, three years of aggravation and ulcers all around.

Everyone wants to feel heard, and, particularly in conflict – when emotions are often inflamed – it’s easy for understanding to be compromised and agreement to seem impossible. Mediation can remedy that. For those in conflict and perhaps contemplating litigation, mediation’s a highly effective alternative to long, drawn-out lawsuits, saving time, money and prolonged stress. It can also help mitigate both business and reputational risk, and even relationships strained by a dispute. With its broad applicability, the benefits of mediation have been long embraced by the NYC and NYS bar associations, by law schools as well as our inundated local, state and federal courts.  

            Co-ops and condos certainly have their share of disputes; conflicts pertaining to leases and deeds, noise and other warranty of habitability issues, property damage, disputes with management or board members and assertions of discrimination are but a sampling. In our notoriously litigious society, the road to the courthouse is often the path of choice. But considering the tremendous legal fees and protracted time it takes even simply to arrive at trial, is it necessarily the best choice? Furthermore, in general, some ninety to ninety-five percent of court cases are settled prior to the actual trial.

Consider the various, publicized lawsuits brought against the co-op board of directors of the renowned Dakota, home to many a celebrity over the years. Writing for The New York Times February 1, 2011, journalists Peter Lattman and Christine Haugheny asserted that whether or not any of the allegations against the Dakota’s board were upheld in court, the accusations were “a potentially embarrassing crack in the facade of one of the world’s most celebrated buildings and fodder for those who feel they have been wronged by that peculiar New York institution, the almighty co-op board.” Though there might be plaintiffs and defendants alike who could have their reasons for wanting the type of publicity generated by conflict, it’s fair to say most do not. Parties to disputes such as the Dakota’s could not only have saved significant time, money and stress by having gone to mediation, both sides also could have avoided unnecessary publicity.
           
            Mediation’s a voluntary, confidential process, in which a trained, impartial third-party – the mediator – helps facilitate a conversation between parties in dispute who have been unable to negotiate a resolution on their own. The beauty of mediation is that it empowers parties to explore creative options for resolution and settle their dispute on their own terms rather than face the uncertain outcome of a court’s decision. While court decisions are generally defined in terms of win-lose, parties in mediation are afforded the opportunity to negotiate a fair and mutually acceptable agreement. Mediation settlements are written up by legal counsel and are binding. By seeking mediation, parties are demonstrating a good faith effort to resolve their dispute; in fact, sitting down at the mediation table is, in and of itself, a step in the right direction. And because of the “ownership” the parties take in the mediation process, the likelihood of their commitment is enhanced.     

            Guided by mediation’s fundamental principles of neutrality and confidentiality, voluntariness and empowerment, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Meeting jointly with both parties, the mediator utilizes various skills and techniques to help break through positional barriers and guide the parties forward to resolution.

As most mediators agree, it’s never just about the money. Whether the parties have their legal counsel present is up to them; however, it is the parties themselves who “own” the mediation process, not the attorneys. Unlike in arbitration, another form of alternative dispute resolution, the mediator acts neither as judge nor decision-maker. A mediator also can help the parties navigate factors such as power asymmetries and cultural differences. As parties move closer to settlement, or perhaps in the event that both parties are found to be obstinately embedded in their positions, a mediator might decide to pause the joint mediation and meet separately with each party.

These separate meetings are known as caucuses and everything said in these meetings is also confidential, unless the mediator’s authorized to share what was discussed. In caucus, mediators frequently act as agents of reality, helping the parties assess risk and the strengths and weaknesses of their case. Because mediation is voluntary, parties can terminate the process at any time. And because mediation is governed by strict confidentiality, mediators cannot even be subpoenaed to testify should mediation be terminated before settlement is reached and a case eventually end up in court.

            Some perhaps might find it incomprehensible to imagine even sitting down at a mediation table with an adversary whose diametrically opposed positions and inflexibility have previously prevented them from resolving their dispute. Not only can mediation work, I have experienced discernible moments when the energy in the room shifts, where tensions and hostilities palpably begin to dissipate as parties move forward onto a path to settling their differences.

Types of mediation other than the more traditional “facilitative” style are the “evaluative,” whereby a mediator can express an opinion and may even propose a basis for settlement; “transformative” mediation, more focused on the relationship; and the “mandatory” initial mediation as ordered by some courts.

Many people today are more familiar with mediation in terms of divorce, unions and international conflict; however, the applicability of mediation is far-reaching. Whether a dispute involves co-ops, condos, neighbors, corporations, small businesses, partnerships, employees  – the list goes on and on – all can avail themselves of the significant and diverse cost-saving benefits of mediation. Conflict’s a part of life; but, that doesn’t mean it needs to drain the life out of us.


Mallory J. Stevens is a divorce and commercial mediator and conflict resolution consultant in private practice in NYC. She’s an ex-international banker and also mediates in Spanish and Portuguese.

Article published in the July 2016 issue of The Cooperator, the Co-op & Condo Monthly)
http://cooperator.com/article/why-litigate-when-you-can-mediate




Monday, July 27, 2015

Compromising Positions



There’s a well-known story in the field of conflict resolution that tells of two sisters fighting over an orange. They argue back and forth, forth and back, about who better deserves to have it.  The older one says she deserves it because she’s older, the younger one because she’s younger, and both are adamantly stuck in their positions. With no resolution in sight, they finally decide to compromise and so split the orange in half. Each walks away with half an orange, proud of having found what she considers to have been the most efficient way to resolve the dispute.

But was it the best way?

With their respective halves of orange in hand, one of the sisters proceeds to peel hers, throw the peel away and eat the fruit; the other throws away her fruit and uses the peel for a cake she’s baking.  

Had the sisters attempted to explore each other’s underlying needs and interests, the sister who’d wanted the fruit would have ended up with a whole orange to enjoy rather than a half, and the sister who’d planned to bake a cake would have had an entire orange peel at her disposal. Certainly, every conflict is different (as are the individuals, circumstances and cultures involved) and no one type of resolution strategy fits all; however, research does show that parties in dispute who exercise a collaborative strategy (also called “interest-based” or “integrative”) are more likely to succeed in creating mutually acceptable solutions. So, while the sisters did manage to resolve their dispute, a collaborative approach would have been more mutually beneficial than their compromise.

There are four basic ways people can deal with conflict at different times – competition, avoidance, accommodation and collaborative problem-solving. These strategies depend on the level of concern people in dispute have for their own outcome vis-à-vis the other party’s outcome. (It’s called the Dual Concern Model.) If, for example, in a given conflict you have low concern for both your outcome and that of the other, it’s likely you’ll avoid the conflict or do nothing; on the other hand, if you have high concern for your outcome and little for the other’s, you’re likely to be competitive. Some conflict resolution theorists include compromise as a fifth strategy; however, others see compromise not as a strategy but rather as “a kind of ‘lazy’ problem solving, involving a half-hearted attempt to find a solution serving both parties’ interests.”[i] I’m inclined to agree with the latter.

It seems that virtually every time we read or hear of the ostensibly never-ending political posturing and conflicts in Congress, it’s “compromise” that’s said to be sought and, less frequently, achieved. And each time I read or hear that, I think of those two sisters. Now, maybe it’s semantics; perhaps what’s being referred to in Congress as “compromise” does include elements of collaborative negotiation; however, based on the pervasiveness of contentious posturing in that bicameral chamber (not to mention the vested interest factor), I’m skeptical as to how much earnest collaboration might be taking place.

Words have power, and so does how we frame them. What I’m proposing is a sort of Congressional paradigm shift, a reframing of the quest for the political brass ring: Strive to negotiate a “collaborative resolution” rather than seek “compromise.” I’m reminded of that line from the movie, Field of Dreams, “If you build it, he will come.”  However far-fetched the concept might seem with respect to Capitol Hill, perhaps by lawmakers’ reframing their conflict resolution model more collaboration could actually come.

A bona fide effort to move past positions and obtain real understanding of each other’s underlying interests and needs has the potential for being far more fruitful than simply splitting the orange in two.