Building Bridges by Resolving Differences

Negotiation Strategies March 2020 Contact Us

DISPUTE RESOLUTION More than Meets the Eye

Dear Clients and Friends, As we stand together in crisis, I find some degree of solace in attempting to maintain a modicum of normalcy in an age of turmoil. In addition, we are suffering an "infodemic" about the pandemic, which I find adds to the anxiety and stress. I am now watching news briefs only once a day. In this spirit, I decided to refrain from writing about the Coronavirus in my column and opted for a mundane topic: "Dispute Resolution - More than Meets the Eye". We will need dispute resolution skills during the crisis and beyond, I have no doubt. In the meantime, we have transferred all our negotiation advising, consulting and coaching, as well as our mediation services to technological forums and platforms including Zoom, teleconferencing, phone and emails. In such personal interactions, it may not be ideal, but it is the best we have currently! Stay safe, healthy and oh yes, six feet away! Raphael Lapin

DISPUTE RESOLUTION More than Meets the Eye

Introduction

As business leaders, diplomats, professionals or family men and women, we often find ourselves in the middle of disputes and called upon to mediate a resolution. Having a road-map to navigate these delicate situations will add enormous value to your compendium of competencies! In dispute resolution there is always the excitement of realizing the non-obvious, and the adventure of discovering the unknown!   Parties entering into mediation will typically assert their dispute in terms of their initial presenting positions and perceptions. It may take the form of: “They brazenly breached the contract” or “As a trustee, she exploited her fiduciary responsibilities and stole from the family trust” or “He deliberately misled me with wrong information to get me to sign the contract”. In these particular examples, three characteristics stand out. Firstly, there is the attribution of negative intent as in: “brazenly”; “exploited”; and “deliberately”. Secondly there is the declaration of judgement as in: “breached”; “stole” and “misled”. Thirdly, they have portrayed their counterparts as despicable villains. These are typical in initial presenting positions and perceptions in any mediation. The excitement of realizing the non-obvious and the adventure of discovering the unknown lies in the mediator’s capacity to dig below the initial presenting positions, and to uncover the true and authentic issues that are really at the core of the dispute. In this column I will share some tools and techniques towards that end.

Don't Fall into the Assertion Trap

When presented with assertions, it is easy to be persuaded and influenced by them. The danger is that these beliefs then shape our approach to the mediation and our potentially negative reaction to one or more parties to the dispute. We lose our objectivity and neutrality, and in turn lose trust of the parties in us as the mediator, as well as in the process. When listening to one party’s partisan presenting view of the dispute, be open to the fact that this is his or her partisan narrative and perception, but not necessarily the narrative. Don’t allow their perceptions to sully our own perceptions or impressions of the dispute or of the personalities of the parties. Work to develop our own understanding of what is driving the dispute, independently of how the parties might be portraying it. In my own practice, I have found that frequently one party villainizes and vilifies the other, and yet when I (reluctantly) meet and start working with the “villain”, I discover that they are often more reasonable, rational and accommodating than the “villainizer” himself! This reinforces my notion to not allow one party to influence my impression of the other party, or the issues at the core of the dispute in any way.

Adopt an Enquiring Mindset

Since we have established that the parties’ narratives are utterly unreliable, we need to be able to develop our own understanding of the parties and the issues. We do this through the adopting of an enquiring and curious mindset, effective questioning and intense listening. A useful method of questioning I find, is the non-directive/directive questioning continuum. A non-directive question is designed to allow the respondent enormous latitude in what he would like to talk about. An example of a non-directive question might be: “Please tell me about why we are here?” In contrast, a directive question is designed to allow for a very narrow window within which the respondent may answer. An example might be: “Tell me more about what the contractor said to you when he told you about the delay in schedule?” In using this method, we begin with a non-directive line of questioning and listen very carefully for clues to underlying issues. Then we shift to a directive line of questioning to dig deeper and to really uncover those less obvious issues in the dispute. We may find that what we thought initially to be a legal dispute, may in fact be a more emotional one, and what we thought was an emotional one is really about autonomy and identity. That again is the excitement of discovery in resolving disputes.

Redefine the Dispute and Allow Resolution to Happen

Having developed important information about the dispute, we can now redefine it in terms of the true underlying issues as opposed to allowing the initial (and usually unproductive) presenting positions of the parties to prevail. This typically changes the tone, tenor and nature of the mediation from an adversarial confrontation to a more collaborative conversation. My experience has been that often at this stage my work is done as the parties reach swift resolution on their own. It is at moments like these that one sees the magic of mediation unfurl before one’s very eyes!

Lessons Learned

Parties entering into mediation will typically assert their dispute in terms of their initial presenting positions and perceptions. The excitement of realizing the non-obvious and the adventure of discovering the unknown lies in the mediator’s capacity to dig below the initial presenting positions and to uncover the true and authentic issues. When listening to one party’s partisan presenting views of the dispute, be open to the fact that this is his or her partisan narrative and perception, but not necessarily the narrative. Adopt an enquiring and curious mindset with effective questioning and intense listening. Use the non-directive/directive questioning continuum. Redefine the dispute in terms of the true underlying issues as opposed to allowing the initial (and usually unproductive) presenting positions of the parties to prevail. Often, at this stage, the parties will reach swift resolution on their own.

About Lapin Negotiation Services Lapin Negotiation Services offers training, consulting, advising and executive coaching in negotiation, business diplomacy and dispute resolution services. Our proprietary and aggressively results oriented services are designed to help your leadership, teams and individuals master the essential negotiation, relationship-building and conflict management skills that increase revenues, decrease the high cost of conflict and build strong working relationships. Learn more about Raphael Lapin's book, "Working with Difficult People" by clicking on the image above

Our Skilled Specialists will: Help your organization build a highly effective negotiation competency and culture which translates into increased revenue and strong business relationships. Train and prepare your sales teams using our propriety "Investigative Selling" approach. Provide advice, strategy, guidance and representation in live negotiation challenges Facilitate, mediate and advise in dispute resolution. Create a culture of collaboration by guiding, facilitating and training teams and divisions to engage in dialogue, to negotiate and to partner.

Lapin Negotiation Services 10940 Wilshire Blvd, Suite 1600 Los Angeles, CA 90024 888-964-8884 info@LapinNegotiationServices.com

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