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Killer Negotiations or Negotiation Killers, part 2

Karen A. Pelot — Fri, 15 Jul 2011 15:30:14 GMT

Personal experience shows, and research confirms, there are a handful of negotiation strategies and tactics that elicit predictably similar results. Some tactics create a remarkably short mediation, but produce a less than desirable result. Others surely lengthen the process and, if persistent, also ensure further litigation. The following are common negotiation killers, along with alternative actions which are more likely to result in "killer negotiations" (as in productive). In ascending order, here are #5, # 4, and #3:

#5 Preparation

#4 Fair negotiations (link to prior article)

#3 Falling in love with your own story

It doesn't matter which side you are on, falling in love with "your own story" is a dangerous thing to do. You know what I'm referring to - you've all been mystified by a dogmatic stance taken by the "other side", based on something that seems irrelevant to the case. This is all too easy to recognize in the opposition, but often quite difficult to recognize in one's self.

Falling in love with "your own story" means becoming fixated on an issue that is not specifically relevant to the case, and allowing it to become the justification for your position. Allow me to give you a couple of hypothetical examples:

Ex.1) The defense interprets a claim as bogus because the plaintiff went on a 7 day cruise after the accident, but has no photos of herself doing anything fun or extraordinary. Surely she must have something significant to hide; she's lying about not having photos, so she must be lying about everything else. No offer! Right? Maybe...

Rather than being a dirty rotten liar, isn't it just as possible the plaintiff hasn't allowed a photo of herself to be taken in 15 years - since she gained that 25 pounds, started going gray, or got that first wrinkle? Never-mind the fact that her Ford Escape was turned into an accordion, her collar bone was broken in the crash, and liability is not in dispute. Surely the jury will hate her because of that cruise and lack of photo documentation of her having a great time.

Ex. 2) Plaintiff comes across as a very "nice" person, and he has been a middle school teacher for 10 years. His attorney creates an image of a kind, patient, honest, intellectual man who has foregone his own desires for wealth in favor of a greater good - making a difference in the lives of impressionable teenagers. Any jury will LOVE this man. They will identify with him and feel empathy for him; they will want to help him. They will give him BIG BUCKS... Maybe. OR, they might get aggravated with this middle school teacher because he missed 4 months of work, racked up $30,000 in medical bills, and takes an exorbitant amount of prescription drugs - despite the fact that his doctor can find no "objective" reason for his continued complaints. And there's that issue of disputed liability...

In both these scenarios, a new set of "facts" has been created and decisions are being made based on them. It appears that due consideration for what may be important and relevant information is no longer in play.

Don't get me wrong, we all know juries like "nice" people, and tend to punish "liars". However, falling in love with your own story may cause you to loose all objectivity and result in a mediation outcome that is anything but in your best interest, your client's best interest, and/or your company's best interest. You see, when you fall in love with "your own story", it is you who creates the "facts" and assigns meaning to them. Any other conclusion may just as easily be drawn, should a judge or jury actually hear both sides of the story.

3 recommendations for "killer negotiations" during mediation:

Focus primarily on the relevant facts of the case: All the other "stories" are interesting and even worth discussing; perhaps they will be moving to the "other side". Just remember, they are replete with your personal inflections, so don't hang your hat on them.
Retain your ability to hear and discuss (perhaps even consider) the other side's "story". Productively discussing issues is a two-way street.
As always, rely on your mediator to guide you through should "negotiation killers" get in the way of a meaningful mediation process.

Killer Negotiations or Negotiation Killers, part 1

Karen A. Pelot — Fri, 15 Jul 2011 15:27:10 GMT

Research shows, and personal experience confirms, there are a handful of negotiation strategies and tactics that, when employed, illicit predictably similar results. Some tactics will result in a positively short mediation, but will produce a less than desirable result. Others will surely lengthen the process, and if they persist, will also ensure further litigation. The following are common negotiation killers, along with alternative actions likely to result in killer negotiations (as in productive). In ascending order, here are #5 and #4:

#5 Preparation

This one is pure common sense, but often underestimated. We've heard it from our parents, teachers, professors, bosses, and even our spouses. Now you're even hearing it from your friendly mediator. If you intend to effectively communicate issues, interests, and perspectives, that are important to you, your client, and/or your company, you first must know what they are. Plan ahead and invest your time in preparing for mediation. A solid dose of preparation will boost your confidence as you move through negotiations. In addition, because you are prepared you will be able to focus on the discussions at hand, rather than scrambling for information or trying to bluff your way into a result that may be undesirable.

#4 Fair negotiations

In the broad sense, a fair negotiation is one wherein differences of opinion, interests and objectives are discussed candidly, with a common goal of reaching a conclusion that is acceptable to all. Sounds simple enough, right? The problem arises when the desire for fairness is applied literally to monetary increments.

Consider this pared down scenario, wherein all of the professionals attending mediation know this case has a settlement range of $10,000 to $20,000 - depending on certain facts and the entities involved. The first few rounds of negotiation go like this:

Round One: $100K demand, responded to with $1K offer to settle
Round Two: $99K demand, responded to with $1.5K offer to settle
Round Three:$98.5K demand, responded to with $2K offer to settle

At this point, one side or the other (if not both) demands an ultimatum for the other side to "get real" or mediation will impasse. Neither side is discussing the facts of the case, and both sides have been responding "fairly", right? So why are both so frustrated?

Frustration comes when tactics do not elicit the desired response. Both sides are "negotiating" well outside the range they expect might produce an amicable settlement, and both believe they have "fairly" responded to the other side. Yet neither can see they are mirroring each other's behavior, and receiving a predictable reciprocal response.

What is the impact? At best, this early "fairness" mandates a mediation lasting a few hours longer than necessary. At worst, it causes a premature breakdown of the negotiations and we never know whether or not there was a real opportunity to resolve the case.

3 Suggestions for meaningful and productive negotiations:

Invest in preparation; a/k/a Know your case, priorities and objectives.
Negotiate based on your, your client's, and/or your company's best interest and objectives; a/k/a Be bold enough to play YOUR game vs. getting sucked into theirs.
Rely on your mediator to guide you through should "negotiation killers" get in the way.

Look for #3 and # 2 ranked negotiation killers coming on February 7!

Truth or Dare?

Karen A. Pelot — Tue, 09 Nov 2010 18:12:00 GMT

Did you ever play "truth or dare" as a kid? I did, and I remember those anxious moments leading up to my choice of truth, or dare. Of course, I knew if I chose TRUTH I might "have" to divulge something about myself I would prefer to keep private. But, if I chose DARE I might "have" to do something I really did not want to do. Either choice could take me somewhere I didn't want to go, or it could be no big deal at all - even fun!

Having experienced the three primary roles of mediation (plaintiff, defendant, and mediator), I recognize that participating in mediation can be a bit like playing Truth or Dare. During the game, players make a choice regarding what action they are going to take, then put themselves in the hands of the other players and hope they are not superficially damaged in some way. During mediation, the participating parties make decisions regarding how much "truth" they will divulge (to the mediator and/or the other party) and how far they "dare" to move in their negotiations. They then place a level of confidence in the mediator, and hope their case will not be damaged in any way as she communicates with the

other side about their positions.

There is an interesting dichotomy that occurs during mediation: generally the adverse parties have an earnest interest in resolving their case, which requires a fairly high degree of openness. However, the parties also experience varying levels of angst when deciding what information to release, and taking the calculated risk of increasing their offer or reducing their demand. I have observed there is invariably a turning point, when the energy in the room is palpable and decisions are being made. Decisions which will determine the mediation outcome; impasse or press on to agreement. It is at this time the parties choose whether or not to have faith in me, as their mediator, to keep confidences and maintain a balanced process. They also decide whether or not to trust me to articulate their truths, even as they dare to move in their negotiations. Certainly, these choices may be viewed as risks. Interestingly however, it is typically this very decision (this sometimes painful decision) that generates the momentum required to create a real opportunity forresolution. It is at this point, as I observe the parties making their decisions, that the Jeopardy theme song (different game, I know) starts playing in my head, and remains until the mediation concludes. This is the fork in the road; resolution or continued litigation hangs in these choices.

As the party involved in the case, these are your decisions to make. As your mediator, it is my role to accept your decisions without judgement, honor confidentiality, and work to ensure the mediation process does no harm. It is also my desire to produce a positive experience for you.

As you decide, I recommend you recall the rules of mediation:

Your mediator is a neutral third party; I have no stake in the outcome or terms of resolution.
Mediation is confidential; that confidentiality applies to the overall process, as well as private discussions in accordance with your will.
At the end of the process, the result is completely up to you; YOU decide whether or not the case resolves and YOU decide your actions after mediation, should the case continue.

In my experience, the more open the parties are with me (regarding their interests and positions in the case), the more likely I am to be successful in facilitating resolution - even when the information I have been given is confidential and never divulged to the adverse party.

What will you choose during your next mediation: Truth or Dare? Both or neither? Like during the childhood game, there may be anxious moments of decision during mediation, but that's where the similarities end. You will never "have" to divluge anything you would prefer to keep private, and you will never "have" to do anything you really do not want to do. Have a little faith in the process, and I bet you will be satisfied with the result.

I'm on Your Side

Karen A. Pelot — Tue, 09 Nov 2010 17:53:00 GMT

I am on your side. Seriously, I am. I know, I know, mediators are to be completely neutral, unbiased, and unattached to the outcome. So, how can I possibly be on YOUR side? Doesn't that put me in direct violation of the ethical requirements for a Florida Supreme Court Certified Circuit Civil mediator? Absolutely not, and I'll tell you why: I'm on "their" side too. What?? That sounds a little two-faced, maybe even deceptive, doesn't it? Nope. Actually it is just the opposite, and it completely supports my role as a neutral, unbiased third party presiding as the mediator for your case.

Confused? Please allow me to explain. Being "on your side" has nothing to do with my feelings or beliefs regarding you or your case. However, it has everything to do with you achieving a mediation outcome that you know is aligned with, and supports, your interests and goals.

As your mediator, being "on your side" means taking a genuine interest in your case, and ensuring I understand the information and facts as they are presented. It also means truly listening to you, and paying close enough attention to your words and body language to discern what is important to you, and why. It means recognizing your style of communication, too. Does your quiet and serious demeanor indicate an "all business - stick to the facts" preference, or is there more to your story that a few clarifying questions might shed light on? Or perhaps I have not yet gained your confidence or trust, resulting in your reluctance to openly communicate? In reality, it could mean any number of completely different things - maybe you just have a headache and need some Tylenol. My point here is, being "on your side" includes doing my best to obtain a quick and accurate assessment of you and the information related to your case, and respond appropriately. More often than not, a bit of keen observation, combined with one or two quick questions, solves the immediate mystery, and we can enter into an effective communication mode.

As we move through the process of mediation, it is my intention to demonstrate I am "on your side" through my understanding of your case, recognition of your personal order of priorities, and accommodation of your preferred communication style. In fact, it is my belief that attempting to mediate without employing the aforementioned tactics results in a disingenuous and ineffective experience for all parties. For the duration of our mediation, the fact that I am "on your side" enables you to get real (dropping some of that adorable posturing you so enjoy), view the pros and cons of continued litigation objectively, be a little creative in discussing possibilities for resolution, and ultimately make that final decision knowing it is aligned with your best interests. (Of course the terms "you" and "your" may be you, your client, and/or your company.)

Some believe, in order to facilitate an amicable resolution through mediation, the mediator must have a high "E.Q." (emotional intelligence), or be remarkably intuitive. Others surmise the mediator must have an extreme level of personal confidence, combined with persuasiveness, to facilitate agreements between people she barely knows, who often possess staunchly opposing views. I'm not certain if any, or all, of those traits are required. However, I do know if we aren't communicating effectively I have no chance of facilitating an acceptable resolution to your case - and I do thoroughly enjoy facilitating amicable conclusions! As such, I unwaveringly make it known that I indeed am "on your side" in helping to bring about a mutually agreeable resolution to your case.

Make no mistake about it. As your mediator, I am on your side - and theirs.

Overcoming "Murphy's Law"

Karen A. Pelot — Thu, 18 Mar 2010 18:25:00 GMT

Every now and then a day comes along when it feels like “Murphy’s Law” is working overtime. I had one of those days recently - it went like this:

It was a Monday morning mediation in Naples, with 6 participants traveling from out of town, plus me. I had booked neutral space to host the mediation, and made the drive from Orlando to Naples the afternoon before. This way, I could ensure I knew exactly how to get there, and minimize any risk of commute delays. So far so good…

The next morning, I received a call from the Plaintiff attorney’s office; he was having car trouble and would be at least 30 minutes late. Well that was unfortunate, but I figured it wouldn’t be too big of a problem for the other participants. They would understand.

As planned, I arrived 30 minutes early, allowing plenty of time to prepare and get organized. Upon my arrival, I was greeted by a lovely woman who informed me the 3 conference rooms I had reserved for the day needed to be vacated by 1:00. Now this was not good news, as mediation would not commence until 10:30, at best, and we had complex liability and damages issues to resolve. I held an impromptu brainstorming session with the lovely woman, and 15 minutes later, my three conference rooms were secured and readied for use – I was “back in business”! This was a second unexpected hurdle, but all was well.

Now it was time for me to sign the conference room rental agreement. No problem, except it reflected a price of 3 times the agreed upon fee! I started wondering what was up – this event seemed to be getting progressively worse. Nonetheless, I knew I had to work through this issue if I was going to mediate this case, so I greeted the alarming news calmly and started renegotiating. It didn’t take long to reach a new agreeable contract amount; I signed, and successfully jumped hurdle number three.

By now one of the two defense attorneys had arrived with his client, and I explained the car trouble with the plaintiff attorney. Both were fine with delaying the start of mediation, but questioned whether the plaintiff was with her attorney? “She must be” I thought to myself, as I proceeded to call and make sure. Intuition is a funny thing, isn’t it? Yes, hysterical. Of course the plaintiff was NOT with her attorney – she was in Virginia, planning to attend mediation telephonically. And, just to make things more exciting, they had not been able to reach her by phone or Email. At this point, I’m looking for the cameras - surely I’m being “punked”! Naturally, the defendants had not agreed to the plaintiff’s “virtual” attendance, so as you might imagine, we were now dangerously close to ending this process before it even got started.

It was now 15 minutes past start time; I was missing 4 of the 6 participants; and arguably the most important participant would not be present. My next move was to call defense attorney #2, and inquire as to his arrival status. Wouldn’t you know it? There was an entry error on his calendar, and he would be an hour late. Really? This is unbelievable,

At this point, there was a serious conflict going on in my own head, never mind the case that needed mediation. One voice was screaming “Call it a day! Clearly this was not meant to be!”; while the other said “Hang in there, stay positive. This can be salvaged and be beneficial for all the participants.” Fortunately, the latter won out: The co-defendant and plaintiff’s counsel did eventually arrive; both defendants agreed to virtual participation by the plaintiff; and we did finally reach her by phone. Mediation commenced – albeit 1.5 hours late.

I am happy to report the cases were completely resolved that afternoon – despite the plethora of obstacles. And… everyone returned home safely, with no drama.

Admittedly, this day tested my patience, my perseverance, and my skills as a mediator. However, I overcame “Murphy’s Law” by remembering the following:

1. My actions, or reactions, to the circumstances at hand were completely within

my control. They could negatively impact the situation(s), or positively influence them - it was my choice. I chose to remain calm, collected, and kind. After-all, my actions would likely determine the clients‘ lasting impression of me.

2. A little bit of space between stimulus and response is a good thing. So, I gave myself that space – in the form of a few deep breaths, in the “privacy” of the hallway. This moment of “breathing room” allowed me to remember the day had not fallen apart. In fact, it was only just beginning, and everything would be fine – whether the mediation proceeded or not.

3. Numbers 1 & 2 gave me the clarity to remain objective, and seek viable solutions. Just as the Deepak Chopra quote suggests, I sought the opportunities within the problems, and sure enough, the problems dissolved.

All-in-all, it truly was a terrific day!

Finding The Opportunities Within Conflict by Karen Pelot

Karen A. Pelot — Tue, 23 Feb 2010 23:50:00 GMT

Hi! Welcome to the first edition of Conflict = Opportunity!, a monthly newsletter about mediating through life, written by me, Karen Pelot. As this is the introductory edition, I decided to reintroduce myself to you, and begin to spark your interest in the ongoing story of how Conflict = Opportunity!

As I already mentioned, and for any of you who may not know me, my name is Karen Pelot, and I am the sole proprietor of Karen Pelot Mediations, LLC. I have an MBA, with a concentration in Alternate Dispute Resolution, and have been mediating full time for 2.5 years. I am recognized as an Advanced Practitioner of Mediation (APM) by the International Association for Dispute Resolution, and I am certified by the Supreme Court of Florida in Circuit/civil and County court disputes. In the past two years, I have mediated more than 200 cases, with 89% of those settling at mediation.

Enough about who I am, let’s get on with the story behind this month’s Conflict = Opportunity!…

2009 has come to a close, and I find myself reflecting on it with gratitude and a good bit of awe – as in “that was awesome!”. You see, because of the conflict we generally refer to as civil litigation, this year I received the opportunity to spend time with the most amazing people. Some have simply been brilliant, and I have listened to them like an

enthusiastic student, eager to soak in everything they so generously shared. Others had personal stories so inspiring; being in their presence was like sitting with angels. Some were angry, frustrated or fearful, and I was presented the opportunity to experience their pain. This is also when I had the opportunity to be a calming presence, and help them move from a place of emotional discomfort to a place of personal power and peace – regardless of the decisions they ultimately made. Some were humble and sincere; others vociferous and even a bit arrogant. Some were savvy, speedy negotiators; others were thoughtful and analytical, taking their time as we navigated through the process of mediation (and, it is a process, but that’s a topic for another day). There were some who were wealthy beyond imagination; others had little more than the clothes they wore to mediation. Although it was often serious conflict that brought us all together, I look back on 2009 and appreciate that most took opportunities to share a little piece of their lives with me. Many shared a hearty laugh or two with me, and many shared their tears.

If you recognize yourself, your clients, or both, in any of these descriptions, I am not surprised. For you see, I have found it to be a very rare occasion when every single one of these descriptions is not present in mediation - often wondrously

manifesting from a single person, as we work through the process of conflict resolution together.

2010 has now arrived, and so I’ll close this first edition of Conflict = Opportunity! as I began it, with gratitude and a bit of awe. I hope you join me in being grateful for the beginning of a brand new year, and all it has to offer. As we look back on 2009, with all its ups and downs, and whatever it brought us individually, I hope we gained perspective and wisdom from all the opportunities given to us; even those presented to us through conflict.

Please feel free to share my newsletter with your friends and colleagues, and please also feel free to contact me directly, via the information listed below. I’d love to hear from you!

Happy New Year!

You may reach Karen via Email at: info@karenpelotmediations.com

Schedule mediation and view Karen’s calendar at: www.KarenPelotMediations.com

Right, Wrong or Perception

Karen A. Pelot — Tue, 23 Feb 2010 23:28:00 GMT

Ever hear the one about the elephant and the three blind men? Three blind men went to the circus and came upon an elephant. There were no elephants where they came from, and they were thrilled to encounter such a great beast. The first blind man grabbed its trunk and declared “It is like a mighty snake.” The second grabbed its hind leg and exclaimed “No, you are wrong! It is like a great oak tree.” The third held its tail and protested “You are both wrong! It is like a strong rope.” Interestingly, they were all right and all wrong. Their descriptions were honestly based on their individual perceptions; and their perceptions were based on their individual experiences. Just like life! And for our purposes today, just like conflict.

As a mediator of civil cases, I have found the existence of empirical “right” or ‘wrong” to be extremely rare; in fact, arguably, non-existent. Now, I can already feel some of you disagreeing with that statement, but hear me out. I realize it is not terribly unusual for one side or the other, or both, to twist information in order to cast a certain light on their case. I also recognize there are times when flat-out misrepresentations are present in a case. Most cases, however, are not so extreme. They generally boil down to differing perspectives about how reports read, how a witness presents, and ultimately the value of the case. Of course, it is that last one which is the basic nexus for the conflict, and exactly what you pay me to bridge. At the end of the day, resolving a conflict through mediation is not about who is right or wrong, or which perception of the facts is the truth.

It may surprise you to know the truth (whatever that means) doesn’t matter at all - at least not from my perspective. What does matter is how effective I can be in bridging the distance between the two, or more, perceptions of the case. That distance is often narrowed by helping the parties gain an objective perspective of what a jury will likely hear, if the case proceeds to trial. And, importantly, how difficult it might be for a complete outsider (a juror) to sort through conflicting expert witness testimony and decide who is “right” and who is “wrong”. Only to then be faced with assigning a dollar value to that assessment. This is a potentially daunting task when everything they heard during trial – like the descriptions of the elephant by the three blind men – is both right and wrong. This strategy is neither plaintiff nor defense oriented; it is collective participant oriented.

My job as your mediator is to present your perception of the instant case, to the opposing party, in such a manner that they not only intellectually understand it, but are moved to take action because of it. I have learned that remaining curious about the differences (rather than judgmental about comparisons) leads to possibilities. I have also learned that when there are possibilities, perspectives can adjust and sometimes even change. In the end, neither party necessarily affirms the “rightness” or “wrongness” of the other, but there is a new collective perception: one that makes resolution the only logical conclusion.

You may reach Karen via Email at: info@karenpelotmediations.com

Schedule mediation and view Karen’s calendar at: www.KarenPelotMediations.com

Welcome

Karen A. Pelot — Mon, 22 Feb 2010 22:10:37 GMT

Welcome to my blog. Please check back soon for new entries.