Joseph Mediation

What can soft skills do for you in negotiation?  Open important things:  ears, minds, dialogues, resolution pathways, and more.

This is because soft skills have the ability to engender trust which, in turn, facilitates cooperation, collaboration and decision-making.  Negotiations with and without trust are simply very different.

Overall, soft skills imbue an interaction in such a way that creates an atmosphere that feels safe to emote, regroup, be challenged and then reason and advance.

Some examples of soft skills are:

• Listening and acknowledging
• Reading the room (be cognizant of the collective, as well as the individual, dynamics)
• Using body language that conveys and fosters openness when talking and listening
• Comfortably allowing emotive expression
• Keeping patient
• Encouraging manageability of the process;  inspiring confidence that the conflict is resolvable
• Speaking mindfully (words, tone and inflection)
• Approaching with an interest-based focus (makes one feel understood)
• Incorporating challenges in tune with a personally important purpose
• Directing attention to possibilities, and away from what cannot be changed (empowerment rather than powerlessness)

These techniques are not substitutes for hard skills – intellectual, experiential, knowledge-based, etc.  A negotiator or mediator whose style embodies both, however, can significantly enhance the process of deconstructing obstacles to negotiation and resolution, as well as client relations.

Parties’ satisfaction begets appreciation for their representatives’ choices. When parties feel they and their needs were well taken care of – from the point of mediator selection, to session experience, to the note on which the process ends, the experience fosters loyalty, future reliance and referrals.

As a matter of prudence and practice management, reinforce settlement efforts by involving a mediator with a combination of these qualities, rather than taking the risk of coming up short.

Why Great Negotiators Earn More Money

BY KATIE SHONK — ON OCTOBER 1ST, 2018 / SALARY NEGOTIATIONS

“Great negotiators understand that the more issues they add to the negotiation, the more money they are likely to make.”  https://www.pon.harvard.edu/daily/salary-negotiations/great-negotiators-earn-money/

Having been a student of the Program on Negotiation, this philosophy is well instilled in my mediations – before, during and even after sessions.  This article may lend us additional ways to maximize the benefits of pre-session work;  expand the scope of consideration and enhance outcomes.

https://www.pon.harvard.edu/daily/salary-negotiations/great-negotiators-earn-money/

Terms, no matter how well constructed, are always subject to interpretation — be it a matter of definition or context.  The potential for conflict over enforcement is, therefore, ever present.

Many employers and employees nowadays know the value of mediation, but most only consider proposing it after a conflict has arisen.  Consider proposing a mediation clause in your engagement forms, such as:

• offer / acceptance letters,
• employee handbooks,
• non-disclosure agreements,
• non-competition agreements, and/or
• employment contracts

The following sample language may be helpful and, of course, can be modified to suit:

If a dispute arises out of or relates to this [contract, lease, term, clause…] or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation within 30 days of (name event, e.g., providing written notice of dispute) administered under (name rules, e.g., M.G.L. Chapter 233, section 23C) before resorting to arbitration, litigation or some other dispute resolution procedure. The process shall be confidential and based on terms acceptable to the mediator and/or mediation service provider.

Mediation is a process which involves each party to a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary resolution. It involves no formal court procedures or rules of evidence. The mediator, also, does not have the power to impose a binding decision or force an agreement on the parties.

Not only does mediation provide efficiency, its inclusion as a dispute resolution option can be preventative; showing good faith and planting the seed of communication — the lack of which has been known to originate most conflicts.

It may feel like once a case is filed that the outcome is out of your hands; that the chance to take proactive, ameliorating action is out of reach. That isn’t necessarily so. Pursue mediation.

Mediating in the early stages poses advantages for parties on both sides, such as:

1. “In-house” manageability of a situation gets further away from the parties as the legal process moves along.  As the matter progresses, sentiments fester and heels dig in.  The investment in or need for a decision-maker’s perspective grows.  Voicing and addressing concerns sooner rather than later may more easily rectify an outstanding conflict, minimize its impact, shorten its life-span, and avoid the filing of a complaint.

2. The sooner a matter is addressed, the greater the chance to turn morale around. People can be prone to believe the worst. Negativity can escalate and erode relations and productivity. Asking to mediate, however, demonstrates problem-solving sensibility and approachability.  It shows interest in addressing, understanding and rectifying concerns (sometimes primarily a breakdown in communication), rather than disinterest toward discord and resolution. This can improve information-flow to those responsible for the health of the workplace and lead to mutual efforts toward a safe, productive work environment.

3. The younger the conflict is, the greater may be the (temporary) availability of some non-monetary options that can enhance the prospect of mediating and settling. Such options and their value can disappear as time goes on. Some examples – with the caveat that each is mentioned for general discussion purposes, only, and subject to legal consideration on a case by case basis – are:

• Fuller communication that leads to better understanding of the root of the conflict, the reason for lodging/filing a complaint and the defenses raised thereto (i.e., assumptions that each party knew what the other knew), what the interests are, and what kind(s) of resolution may possible;
•  Expressions of regret shared alongside the reinforcement/enhancement of communication and other corrective measures can minimize immediate and broader fallout;
• Reinstatement or return to work which can avoid a wide range and degree of losses;
• Departure with the provision of a job reference (possibly denoting a description of work responsibilities), and agreement on who shall provide such, can serve an immediate need as well as minimize some of the most costly damages of conflict;
• Clarification of one another’s understandings or negotiation of the parameters of non-compete arrangements which may enhance circumstances for both parties; and
• Consideration for the greater efficacy of an earlier agreement to a confidentiality provision (though parties must be especially careful of recently enacted legal limitations associated with the availability of such).

Keep in mind, too, the relative value of achieving an early settlement in light of other possibilities.  Unfavorable short-term outcomes involving a Motion to Dismiss or receiving a Lack of Probable Cause finding can significantly weaken any remaining settlement potential.  Similarly, a Probable Cause finding can add tens of thousands of dollars to the cost of litigation and an assessed value of the case.

In short, the aging of a case can increase polarization and diminish the prospects for resolution and/or settlement. Be and stay proactive. Suggest mediation from the beginning and keep it continuously on the table. At the very least, the benefits include setting a conciliatory tone from the outset and planting a seed for discussion down the line if parties don’t immediately agree to convene.

This season brings to mind the many things we have to be grateful for. One for me is being part of a community of people who care about what they do and who they’re helping, and they do their best every day. That is what a profession is supposed to be about and I consider myself fortunate to do my part with you.

Thank you for all you give and the opportunities to work together.

Sending wishes for your best health, happiness & prosperity this season and throughout the coming year!