Playworks, a non-profit that contracts with schools to bring organization, socialization and conflict resolution skills to school playgrounds, has incorporated rock-paper-scissors in its curriculum. (Disclosure: my daughter works for Playworks.) Playworks partners with schools whose children come from low socioeconomic backgrounds.
I had the opportunity to see the program in action at a New Orleans K-8 school just as the school year was beginning.
My daughter was teaching kindergarteners a game new to them called “Switch.” It’s like a musical-chairs, odd-person-out game for 5 players, in which a child stands in each of the four corners of a square with the 5th child in the middle. There’s usually a line of kids waiting to get in to the game. The child in the middle shouts “Switch,” and then each child runs to a different corner. The child who is the last to find a corner is the odd person out, and goes to the end of the waiting line to wait to play again. The head of the line then goes into the game in the middle and yells “Switch,” etc.
What happens when two children arrive at the same corner at the same time? Conflict!
To resolve that conflict, Playworks teaches the kids rock-paper-scissors, the age old conflict resolution tool which seemed to be new to most of the children. When arguing or shoving broke out at a contested corner, my daughter would remind them to use rock-paper-scissors.
And here’s the most amazing part: the kids readily accepted the outcome. The “loser” would shrug and run to the end of the waiting line. Conflict resolved!I was astounded! I don’t know if it’s because kids have such short attention spans that they forgot the conflict immediately, or if the rock-paper-scissors construct is just random enough to be accepted, or if the kids just readily accepted the new social norm. All I can report is that it worked. And it worked every time. (I may have to use this technique in my next mediation.)
Playworks hopes that this and other conflict resolution skills taught on the playground will be carried over by the students into the many conflicts they face each day.
To which I say: Kudos to you, Playworks!
I have been extolling the virtues of listening as a condition precedent to persuasion in mediation and negotiation. It was interesting to read that political pollsters are touting the same thing.
The Washington Post had a long article last week quoting Republican messaging maestro Frank Luntz. What better place than Washington, D.C., to persuade people to use persuasion techniques?
Politicians on both sides of the aisle should take note. And those of us who try to persuade every day can learn these techniques as well.
Here are steps Luntz proposes:
1. Listen. “When people feel they’re heard and understood, they’ll listen (to you).” The key is to listen to them first.
2. Be more empathetic. If people think you understand them, you have a better chance of persuading.
3. Stop lecturing. It shuts people down. Who likes to be lectured to?
4. Show respect, not disdain. This should go without saying, but it’s said because it happens all too frequently.
5. Reframe questions. A reframed question can lead your negotiating opposite to the answer you want. Luntz suggests two different ways of talking about taxes: Should the rich pay more? versus Should Washington take more?
6. Humanize the issues you care about. Use metaphors and examples that connect emotionally rather than intellectually.
7. Be optimistic.
I’ve also been reading Robert Caro’s third volume on Lyndon Johnson, Master of the Senate. One of the strategies Johnson employed after he was elected to the Senate in 1948 was to listen to fellow senators, particularly Richard Russell of Georgia. He made Russell an ally, in part, just by listening to him.
I conducted a divorce mediation recently where the parties have been separated for many years but now have started the divorce process by coming to mediation. They have been co-parenting their children during the separation. We have worked through most of the issues involved and are very close to resolution. What was to be the last session turned out to be the next-to-last session.
In this session, many of the hurts and grievances that they have been carrying around for years came out. Some of it was “stuff” that a rational person might think was relatively small in the big scheme of things. It was clear, though, that it did not seem small to the parties. It was also clear that they were still hurting.
An interesting component was that each thought that he or she had sacrificed more than the other parent. They each gave voice to their sacrifices.
As I listened I realized that they were caught in the conflict trap of living in the past. Although they both want to move on and to have a different future, they felt it was necessary to re-visit the past one (hopefully) last time.
What struck me, though, as they talked, is what great parents they had been. For more than 6 years they had been co-parenting their children—and the children sounded like they were great kids with bright futures.
What’s a mediator to do? I decided to voice the obvious. They had done a really good job of co-parenting. Likely they would continue to be good at it. Parenting is not easy. Co-parenting is even harder. They were adults when they needed to be—for their children. I hoped that they would keep communicating with each other and build on their past successes. Kudos to them.
Negotiation preparation includes thinking about differences in a different way: Differences are good! They can be traded. They rarely have equal value to both sides. An issue might have less priority to you and a greater priority to the other side. Consider logrolling to exploit your differences.
As lawyers, most of us think of the differing viewpoints of each side as impediments to settlement. After all, if the other side views the case exactly as we do, mediation would be unnecessary. Rather than thinking of differences as obstacles to overcome, try looking at them as opportunities to exploit.
People care about the issues in a mediation. But here’s an important point: their passion is not equal on every issue. If there is an issue that they are passionate about and you are not, conceding that issue to them creates an opportunity for you to gain a concession on an issue you are passionate about.
Prepare for your next negotiation by thinking of the differing points of view you and the other side have. These could be differences in priorities, risk evaluation, time preferences or expectations about the future. The other side might be more risk adverse than you. The timing of settlement payments may be important to one side, but not to the other. What will happen in the future may look different to the parties. Consider questions to ask at the mediation that could ferret out these differences.
If you think about all of the issues ahead of time, you can make an educated guess about the other side’s passions. At a mediation joint session, or in caucus with the mediator, you can test your hypotheses. Logrolling your differences can help you avoid impasse at mediation.
Malhotra and Bazerman in Negotiation Genius have a terrific explanation of this strategy.
Which door to choose?
It only takes 40 hours of training to become a mediator, and if you’re a judge, you get a bye. Mediators have different skill sets and varying degrees of conflict resolution training. Think about your case, your client, opposing counsel and the other side’s client before you select a mediator.
Mediator Training. The most skilled mediators I know take many hours of training on a yearly basis, join professional conflict resolution societies, attend annual conferences and speak on mediation and negotiation topics. As part of your due diligence, find out something about the mediator’s background more than that a colleague “used” them before.
Mediator skill sets. Most mediators have good people skills. Curiously enough, not all mediators have good conflict resolution skills. This is where thinking about your client and the other side’s client is critical. They are the ultimate decision makers. Would they respond better to someone who takes the time to empathetically listen to them or to someone who tells them what to do? Do you have some client control issues? Do you perceive that opposing counsel does? A mediator well-trained in conflict resolution skills will have the relational expertise and emotional capacity to work directly with your client and the clients on either side and can be invaluable in closing the deal.
Lax and Sebenius, two Harvard Business School professors who authored 3D Negotiation, suggest mediators can assist negotiators by providing assistance in any or all of the following ways:
“. . . lowering the emotional temperature, fostering more effective
communications, helping uncover less obvious interests, offering
face-saving possibilities for movement, suggesting solutions the
parties may have overlooked, structuring the process more
efficiently, reducing the risk of sharing information, and proposing
Mediation subject matter expertise. Many lawyers believe that mediators need to be steeped in subject matter expertise. Most mediators think that the mediator’s skill set and process skills are their most important expertise. If you have a patent case, you are probably going to want to work with a mediator with patent law expertise. If you have a class action, you are probably going to want to work with a mediator who is conversant with class actions. Other than those two areas, if you chose a well-trained mediator, subject matter expertise will have less impact on settlement negotiations than you imagined.
We’ve all spent weeks on trial preparation. If mediation (or other ADR) is going to resolve most cases (only 98% to 99.5% of cases go to trial in some studies), we should consider matching the disciplined approach we take to preparing for trial to mediation preparation.
As a first step, take some time to think about your last mediation. Make a list of what worked and what didn’t work. Consider these questions:
1. Did I select the right mediator for the case?
Cases are different. Mediators are different. Decide which mediator attribute is most likely to enhance client satisfaction and settle your case, e.g., subject matter competency v. creativity v. the usefulness of your client’s or the other side’s client’s feeling heard and respected.
2. Did I evaluate my BATNA (Best Alternative to a Negotiated Agreement)?
Did I evaluate the other side’s BATNA?
3. Did I accurately calculate the Zone of Possible Agreement? If not, why not?
4. Did I take full advantage of the joint session?
This is your opportunity to hear directly from and speak directly to the client on the other side.
5. Did I have an effective game plan?
Deciding whether to make the first offer, where to go next, and where you want to end up are as important as trying to analyze where the other side’s ballpark is. Bill Walsh, the legendary 49’ers coach, scripted the first 25 plays. Did you script your negotiation moves ahead of time?
6. Was I surprised by the other side’s posturing, facts or legal arguments, or was I ready for them?
7. Did I work to create value?
8. Given the negotiations and the outcome, was my client adequately prepared? Satisfied?
I recommend starting a file and writing this information down. Keep track of each mediation. What worked? What didn’t? Then review the file prior as part of your mediation preparation for your next mediation.
I’ve just read Judy Ringer’s Unlikely Teachers. Judy is an aikidoist and conflict resolution professional. She applies lessons she’s learned from aikido to conflict. Try them in your next divorce mediation session or conflict at work.
I often say, “Conflict is part of life.” Judy points that since conflict is all around us and we continually confront it because every other person in the world is different from us, we should intentionally prepare for conflict. She suggests six steps:
Breathe. Learning to re-center when we get knocked off balance is an important life skill. Practicing it when not in conflict can help you access it more easily when you are.
Reframe. Think about other ways to look at the conflict, by stepping outside of it and examining it. By looking at things differently, you may discover something new about yourself, about the person you are in conflict with, or about life in general.
Experiment. Try brainstorming by thinking of all the possible ways you could respond. There are surely many ways to react. Envision how they would look in practice.
Practice. Like any other skill, conflict resolution skills require practice.
Count your blessings. Judy suggests cultivating gratitude and wonder.
When divorcing couples are caught in a conflict trap, it is very difficult for them to see the other side’s point of view. Many times one spouse just reacts without thinking to the other spouse, who then reacts without thinking, and on it goes. Practice these conflict resolution skills before the need to use them arises.
Here’s a checklist for preparing for mediation. This checklist is based on the premise that since you know that more than 98% of cases do NOT go to trial, you’ll set aside the time to maximize your ability to both claim the most value and create the most value for your clients at mediation. Many of these items will seem like second nature to you, but cut me a little slack, and I’ll see if I can provide some value to you.
- Listen to your client
- Review the facts and law
- Gather documents
- Calculate damages
- Draft the mediation brief
- Match the mediator to the case
- Evaluate your BATNA and their BATNA
- Appraise the Zone of Possible Agreement
- Prepare visual aids and distributables
- Role play: have a colleague take your side while you take the other side’s side
- Create value (with strategies to make the pie larger)
- Exploit your differences: trade items of lesser value to you but greater value to the other side
- Strategize for the joint session
- Script your moves
- Line up your negotiation strategies
- Anticipate their negotiation strategies
- Assess the best “process” for mediation success
- Adjust your attitude to be positive
- Prepare your client
- Check in with the other side or the mediator or both prior to the mediation
Now you’re good to go.
Here’s a proven negotiation tip that most people don’t think of, or at least don’t think of first. I think it’s not used more frequently because it’s a little counter-intuitive.
When we get stuck in conflict, whether in civil litigation mediation or divorce mediation or conflicts in the workplace, we tend to let the conflict make us pessimistic about its eventual resolution, which makes us feel more stuck, and the more we feel stuck the more we feel frustrated, and the more we feel frustrated, the more we come to disrespect, or even demonize, the other side. Once we’ve gotten to that point, about the last thing we want to do is show that we respect the other side.
Stuart Diamond, negotiation professor at The Wharton School, and author of Getting More, has studied irrationality in negotiation. He points out:
“When people are irrational, they are emotional. When they are emotional, they can’t listen. When they can’t listen, they can’t be persuaded. So your words are useless, especially those arguments intended for rational or reasonable people.”
Emotion “reduces people’s information processing ability….[E]motional people, studies show, care less about getting a deal that meets their needs than about hurting the other party.”
Diamond recommends making “emotional payments” to the other side:
“You need to tap into the other person’s emotional psyche with empathy, apologies if necessary, by valuing them and offering other things to get them to think more clearly.”
To cut down on the other side’s acting irrationally, he suggests offering:
- A statement of the other person’s value
The value of emotional payments is that it will calm down the other side, they will be able to think more clearly, and they will be better able to listen to you. Then the stage is set for you to persuade. Of course, the earlier you start showing respect for the other side, the less likely they will become irrational and that you will be facing impasse in mediation or negotation.