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PGP Mediation Blog by Phyllis G. Pollack
On October 22, 2012, we said good-bye to Argus-our English springer spaniel-as the cancer got the best of him. I was devastated.
Analogizing to employment litigation in which a terminated employee sues and is stuck in the past, dwelling on the old job and boss until she gets a new job and then starts putting the termination behind her, I decided that the best way to get over Argus was to get another dog. So, my husband and I went online to the English Springer Spaniel Rescue (ESRA) and started looking for dogs. We soon found “Cookie”- an adorable 2 year old female who is listed as being in Fort Collins, Colorado but is actually living in Rock Springs, Wyoming.
Using e-mail, we inquired about her availability and quickly learned that she was very much available. Perhaps it was because she has had two knee surgeries- patella luxations aka “floating kneecaps”- which may have dissuaded others. We, though, decided to conduct our due diligence and spoke to the vet who performed the surgeries. He advised us she would be fine. I also spoke to an orthopedic vet locally who advised essentially the same, although in guarded terms, because she has not seen the dog, her medical records and x-rays.
We decided to adopt her. My next thought was how to get Cookie from Wyoming to Los Angeles. Suddenly, I became involved in negotiating by e mail. In my own mediation practice, I do not conduct online dispute resolution. This personal experience has taught me a lot about it.
The first issue was timing. Evidently, a non-profit group called Best Friends transports dogs all over the country. The next transport can bring Cookie to Los Angeles on November 14; however- this week is bad for us as my husband and I will be out of town. So, my first response was could we delay it two weeks until the next transport from Wyoming to Los Angeles? The response was “no” as the coordinator is undergoing surgery on November 12 and so wants as few dogs as possible to have to care for while recovering. This is where “flexibility” and “integrative” bargaining become paramount. My husband and I could either have (1) changed our minds about the dog and declined; (2) insist that the dog stay in Wyoming until early December; or (3) otherwise remain inflexible with a “take it or leave” approach. Instead, I took the coordinator’s needs and interests into account, and wrote back asking for suggestions on how to meet both her needs and ours at the same time. As we are out of town when Cookie arrives, what suggestions does she have for boarding Cookie locally until we return? (Nothing like a little brainstorming or coming up with options!)
The coordinator responded that there is a kennel located near the transport person that she often uses. However, I looked up the kennel and found that it is at the opposite end of Los Angeles from where we live and due to other commitments upon our return, we would be unable to trek up there to pick up Cookie.
In response, the transport person offered to deliver the dog after we return; we are now trying to negotiate the exact time and location for the “hand-off.” Alternatively, the coordinator in Wyoming has solicited the help of the coordinator in Los Angeles for suggestions. Their attitude is one that I wish everyone attending mediation had! Very positive; “We will make it happen-don’t worry”. No doubt, with enough brainstorming, and working together, we will find a solution!
Conducting this negotiation by e-mail has been a challenge. As explained by Raymond A. Friedman and Steven C. Currall in their article, “Conflict Escalation: Disputes exacerbating elements of e-mail communication” 56 (11) Human Relations 1325-1347 (2003) (E-mail Communication), e-mail communication is not synchronous; the two parties are not present at the same time, communicating with each other. Rather, one may communicate with the other responding an hour or even a day or so later. Further, it is purely textual or written. We do not see facial expressions or hear verbal nuances that are present in face to face or telephone communications. Considering that over 90% of our communication is non-verbal (Mehrabian) communicating by e-mail is communicating blindly. Thus, we have an e-mail conversation that is NOT a conversation; neither of us is present at the same time, there is no shared sense of understanding or participation in the conversation, and we cannot pick up on cues from the other such as waiting until the other finishes to start speaking. (Think of e-mails crossing each other with unfinished thoughts or out of sync.) (Id. at 1327-8, 1338.)
The two good points about e-mail are that it does create a record of what each person writes that can be reread as often as necessary and provides the ability to revise a statement before it is sent. It allows the sender a chance to think about what is being said before hitting “send’.
The thesis of the article is that e-mail communications allow for the easy escalation of conflicts due to the isolation and anonymity of the participants and the lack of the usual social, non-verbal and visual cues present in a face to face or telephone conversation; there is no body language to read. Thus, “…emails often occur in a context devoid of awareness of human sensibilities.” (Id. at 1329.) They depersonalize, making it that much more difficult to reach resolution. (Id. at 1337.)
I can readily see how the many e-mail exchanges I have had over the last few days could have easily escalated and gotten out of hand, how I could have thrown up my hands in frustration and told the different coordinators and driver that we changed our minds; keep the &^#@ dog! It is easy to do as each party with whom I have been corresponding is a faceless, voiceless person somewhere in Los Angeles or Wyoming. It is easy to “just say no” in such circumstances.
But my mediation training has taught me otherwise. Besides, let’s get the priorities straight: we want the dog!
… Just something to think about!
Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.
When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.
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