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.

Wednesday, May 13, 2015

A Case for Mediation (as published in Huffington Post May 13, 2015)

A multimillion-dollar lawsuit, three years of aggravation and an ulcer to boot.
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, a form of alternative dispute resolution, can remedy that. As a mediator, 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. Mediation's a highly effective alternative to long, drawn-out lawsuits that saves both time and money; it also can help mitigate stress, business and reputational risk and, not in the least, strained relationships. In fact, the benefits of mediation have been long embraced by bar associations, law schools as well as by our inundated local, state and federal courts.
Mediation is a voluntary process in which a skilled, 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 mediator acts neither as judge, decision-maker or problem-solver. Guided by mediation's fundamental principles of neutrality and confidentiality, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Parties have the option of having their legal counsel participate in the process. Both in joint sessions and individual, confidential "caucuses," the mediator utilizes various understanding-building techniques and strategies to help break through positional barriers so as to uncover underlying needs and interests. As most mediators agree, it's never just about the money; it's often about the relationship.
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 mutually acceptable agreement. The ownership the parties take in the mediation process enhances the likelihood of their commitment to the process. As parties move closer to settlement, the mediator can help each (in confidential caucus) assess the strengths and weaknesses of its case, facilitate risk analysis and, as needed, will assume the role of "agent of reality." Settlements are binding and are generally drafted by parties' counsel.
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.
Conflict is an inevitable part of life. That doesn't mean it needs to drain the life out of us. If we find ourselves stuck in what appears to be an unresolvable dispute, it's good to know mediation's a great alternative to litigation.
Mallory J. Stevens is a certified mediator in private practice in NYC.

Sunday, April 19, 2015

Active Listening: Everyone Wants to Feel "Heard"

When it comes to effective communication, paying attention, a passive skill, is only part of the equation. One strives not only to be “mindful” of what the other is saying or otherwise communicating, but also wants to let the other party know that genuine attention is being paid.  For example, have you ever been in the midst of even an “ordinary” negotiation (we negotiate daily, more than we may realize), only to find everything you have said was countered with an opposing retort, an unrelated comment or perhaps simply a “yes, but…”? One can be left feeling exasperated or angry, invalidated and, above all, not or mis-understood. This is where active listening comes into play.  Even in very contentious situations, taking a moment to reflect back to the other party what we heard him or her say enables us both to ensure we got it right (which, in emotional situations, we may not have) and demonstrate to the other s/he has been heard. If we’ve misunderstood, the other has the opportunity to correct us. It’s far less onerous to have a discussion with someone who genuinely attempts to understand us, and vice versa, even if we have differing ideas, goals, needs and/or interests. This is a first step towards the possibility of reaching collaborative agreement, or simply coming away with better understanding. Empathy also plays an important role in active listening.  Whether it’s formal conflict resolution training or customer sales training, empathy – putting yourself in another’s shoes – can help defuse tension and de-escalate a situation.  Think of how you feel when someone “gets” you. Yes, everyone wants to feel heard. And when we feel "heard," our own sense of "hearing" can be elevated.  The more we can move past positions and acquire a better understanding of each other’s needs and interests, the greater the opportunity for more collaborative interactions and mutually satisfactory results.