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Sales And Alternative Dispute Resolution: Two Similar Disciplines Divided By Uncommon Languages

by John Turley
December 2010 John Turley

Negotiation, alternative dispute resolution, and mediation practices are related, sometimes interrelated, complementary, and conflicting and oftentimes in direct opposition to complex strategic sales. The two disciplines are dependent upon skillfully managing circumstances, people, data and conditions in either a developing sale or conflict resolution scenario. The abilities of the practitioner to understand and build tactics and strategies with these important details in mind can be the deciding factors in either success or failure in both professions. It would be beneficial to the strategic and consultative salesperson and the alternative dispute resolution specialist to learn from each other and to adopt and where appropriate to adapt the best practices of both professions as their respective sales opportunities and Alternative Dispute Resolution (ADR) cases become more complex, demanding and inter disciplinary particularly on the world stage.

Sales professionals can be more effective by learning from ADR professionals specifically in the important areas of conflict and dispute resolution, negotiation, collaboration, appreciative inquiry, reframing, mediation, online dispute resolution, non-manipulative facilitation, and the importance of culture, gender and power in relationships and human interactions. ADR specialists can learn from sales professionals in the areas of relationship building, self promotion and social networking. Additional key activities include new business development and referrals, identifying business and personal needs, account research, thinking strategically and conceptually, following through and goal setting.

As an example of the above, salespeople and conflict resolution specialists must first sell themselves to their respective clients in varying degrees to develop positions of client confidence, competence and, ultimately, trust. Salespeople consciously sell themselves disproportionately higher on the client likeability spectrum in the initial stages of a new engagement and less so throughout the ensuing relationship. Conflict resolution specialist may resort to this tactic to some extent in their first encounters with clients with the ever present need to maintain their neutrality. There is usually a greater reliance on their negotiation and alternative dispute resolution credentials, education, experience, reputation and review and explanation of the processes toward the final outcome to earn the client’s trust. Nevertheless, relationship building is an important requirement of both professions.

Repeat business and client referrals are the lifeblood of both disciplines and are predicated on satisfaction and successful outcomes in the eyes of the client. Follow through with the client is important in both professions with the appropriate balance of relationship building. New business with a constant stream of referrals based on prospecting and the professional’s reputation is the key to long term success in both fields. Conflict resolution experts could learn more from salespeople about self- promotion, social networking, cross selling and cross pollination within corporations and actively seeking referrals and references from satisfied clients.

A solid reputation for excellence in sales and mediation must be cultivated, safeguarded and treasured at all times. Sales professionals and conflict resolution specialists need to be leaders since the client is depending upon them to guide them and facilitate successful results. Leadership touches on the appropriate use of power in the sales and ADR client relationships since both professionals wield a considerable amount of direct, indirect and subtle influences on the participants in their particular areas of expertise. Collaboration through team work and the realization that power is shared rather than monopolized by an individual or group is the key lesson of leadership training. Without collaboration between the professional and the client, an unsuccessful installation and deployment of an enterprise wide business, mission or life critical application can make or break an organization, as well as the careers of the executives who bought the sales solution. The courts should not necessarily be the last refuge of a failed ADR engagement as perceived by the disputants.

Online dispute resolution is growing rapidly within the ADR profession. If utilized properly and appropriately, it can help to reduce time and expenses associated with face to face sessions. The sales profession is using aspects of ODR to qualify client’s interests and to collaborate with global customers and teams. Both the sales and ADR professions would benefit by sharing the advantages of this robust communications medium. The world of corporate sales focuses on identifying and understanding the key business and personal needs of the various types of buyers at the account as part of a comprehensive sales process for developing a solution that a company will buy to address their perceived problems. The challenge is not only to resolve a business issue through a compelling sales proposal but also to deliver quantifiable value in the form of a favorable Return on Investment (ROI) or satisfying criteria that are important to the buyers based on their needs within their corporate culture. ADR specialists strive to maintain their neutrality while facilitating desirable outcomes as determined by the disputants’ respective positions and interests. The value of the ADR outcome, as determined by the disputants, must also be weighed and measured against criteria that are meaningful to the participants. The metrics may not be as demanding as corporate buying guidelines; however, their unspoken presence should never be underestimated in ADR proceedings. Expectations should be set at the outset and revisited throughout any ADR session to closure.

Similar to sales probing to uncover needs, the ADR specialist utilizes skillful open ended questions rather than closed ended ones that result in yes or no answers to facilitate the emergence of the disputants’ interests and positions. In the sales and ADR realms, the ideal result of the deliberations and processes is the proverbial WIN/WIN for all engaged parties. The important distinction between sales and ADR is that the sales agent deliberately inserts his influence throughout the events and processes leading up to the decision and outcome, whereas the ADR specialist is a neutral facilitator who helps the disputants to decide the outcome between them based on their positions and interests. Attentive listening is a talent that is in demand in both professions. Salespeople are oftentimes accused of speaking too much and not listening closely enough to the client’s interests and needs. Of course, there are ADR specialists who are guilty of this oversight, but neutrality demands that the specialist listen to the client’s interests as actively as possible. Listening, so that the client believes that his interests are heard and acknowledged, is practiced with a religious fervor by the top people in both professions.

Important skills related to active listening include the sales technique of rephrasing and the ADR practices of framing and reframing. Rephrasing questions during the sales process is a practiced methodology that allows the salesperson to collect his thoughts while developing the appropriate answer, to clarify a sales presentation point or to learn more about the client’s business or personal needs behind the question. It further enables the sales professional to establish a new discussion or direction that favors their solution by defusing a hostile question or disarming a loaded objection. Framing is a form of direct communication between the professional and the client to state needs without unnecessary words or phrases that cloud the message. Reframing is restating to the speaker in positive terms what the listener heard concerning the underlying interests. Further, reframing client statements or the art of rewording adversarial and antagonistic messages into productive statements is a powerful ADR skill that sales professional should adopt in their client interviews, fact finding sessions and sales presentations.

Reframing should also be used at every opportunity to muster internal enthusiasm and support for their sales initiatives, as well as their external relationships. If practiced to perfection, reframing is actually more powerful than rephrasing. Why? Reframing is systematic, active, behaviorally based, dynamic, future and solution focused, whereas rephrasing is oftentimes a defensive sales technique. A rephrased question is not necessarily attuned to the customer’s need but more to the salesperson’s desire to focus on his solution. Reframing maintains the essence of the idea and detoxifies or removes any unproductive language, accusation, position or emotion from the discussion. It may focus on conceptual definitions to present the problem as a mutual one to be solved through collaboration and agreement. The use of metaphor is another important aspect of reframing which allows the parties to find a new or altered conceptual image for perceiving the problem. Reframing requires great skill and practice and is a non manipulative way to keep the ADR process flowing. Salespeople oftentimes get bogged down by client objections that might be better suited for reframing as opposed to rephrasing.

The conflict resolution specialist is perhaps more patient and methodical than the salesperson in terms of processes and results to allow the disputants to present their interests and positions and eventually their mutually agreed upon solution. This transference of ownership of the initiative and imminent solution to the client is important in both professions, but particularly so in mediation. Salespeople strive to achieve this dynamic outcome of their sales processes; however, transference of ownership of the solution to the client is an art that is underappreciated and underutilized in sales. It is hard to do but it is an important technique that salespeople should embrace more openly with an assist from the ADR profession. The solution whether it is in mediation or sales is more powerful when possession becomes theirs rather than ours. Alternative dispute resolution utilizes uniquely different practices with distinct and deliberate processes and outcomes in comparison to the consultative sales approach. For example, ADR specialists regard conflict as part of the human condition. As conflict resolution experts, it is important to understand and appreciate the various reasons and equally unique human situations that give rise to conflict. This is why they study the Wheel of Conflict and its implications within their practice. This discerning skill is not usually taught in sales training. It should be because conceivably a salesperson may encounter conflict at work with a boss, peer, an internal consultant or a major client. The typical sales response is to discuss the disputant’s need to “clear the air” in order to forge ahead in the immediate sales process as opposed to resolving a pressing interest or position that may re- surface to jeopardize future sales or important relationships if the disputant remains dissatisfied. The sales mentality is oftentimes too short sighted because of overwhelming pressures to produce immediate results despite the adverse circumstances and the need for additional reflection along with account nurturing and development.

Negotiation is common in both disciplines with some important differences to observe. ADR specialists prepare their “best alternative to a negotiated agreement” or BATNA whereas sales professionals negotiate to leverage their position through concessions, future considerations and commitments to new business or desired actions by the client. The salesperson remains a constant in the negotiation session which is viewed as a necessary phase along the entire sales continuum. The salesperson has specific individual needs in mind as opposed to the ADR specialist who uses negotiation techniques to assist the disputants to develop their own mutually satisfying solution. Again, this speaks to the importance of the transference of ownership of the solution rather than driving a process that culminates in a sale with obvious vested interests for the salesperson.

Appreciative inquiry is not unique to the ADR profession; however, it is an approach that is underutilized in consultative sales. Salespeople tend to concentrate on problem identification and problem solving with passing reference to AI’s emphasis on celebrating those things that companies do exceedingly well. The focus on solution selling to overcome corporate problems may lead to negative reenforcement as to what is wrong with the organization rather than leveraging the strengths of the company to achieve even greater results. Sales solution results are typically classified as soft or intangible benefits such as an increase in employee morale and hard or quantifiable ones namely a reduction in overhead by a significant percentage with increased sales and incremental profits as measured against the existing business costs and the required investment for the solution. The goal is to realize the proverbial WIN/WIN outcome whereby the buyer and seller realize their desired results in the form of a win for both parties as a result of this high level transaction and business to business relationship. Consultative salespeople may approach corporations pro-actively to draw the attention of C level executives to unmet needs or ones that may not be apparent to them but are, none the less, important with an eye toward the company’s future. A considerable amount of time, due diligence and research is required by the sales consultant to make a compelling case for serious consideration of his proposal. Salespeople work diligently to identify the economic, technical and user buyers at the account that will potentially benefit from their unique value proposition and solution. The care and nurturing of these important executive relationships fall into the broad category of covering all of the bases at the targeted account. A cadre of internal client coaches is recruited and cultivated to gather valuable insights on the decision makers’ thinking and needs, as well as to test and validate the salesperson’s ideas and initial proposals. Appreciative inquiry should play more of a role in the development of the sales proposal because it opens up even greater opportunities to sell positive outcomes as opposed to fixing problems.

Effective corporate selling becomes even more complex and demanding when the salesperson must sell his proposal for the XYZ Corporation internally to his own management for their support and approval. They also have personal and business needs that must be identified and addressed. This step is crucial to gain the necessary buy in and internal support from his top management as his proposal passes through the pre requisite gross profit margin, strategic sales value, and business evaluation gates. If the passage is successful, internal resources are made available in the form of subject matter experts, technical staff, and proposal writers with a budget to support the development and delivery of the final proposal.

Corporate salespeople generate new business, leads, referrals and introductions from their long term relationships while the ADR specialist gains valuable experience, referrals but most important of all a reputation for excellence within their profession.

Conclusion

The sales professional and the alternative dispute resolutions specialist both focus on results. The former concentrates on addressing personal and business needs and moving the process to a timely sales close, while the latter facilitates the successful resolution of the disputants’ interests and positions within the conflict according to their mutual decisions. A lesson to be learned by salespeople from the field of conflict resolution is to let the clients design their own solution and take ownership rather than impose one upon them. This concept is part of the sales practice; however, it is used to greater effect in ADR sessions. The most important skill for sales professionals to incorporate in their repertoire of techniques from the world of ADR is reframing. It is more art than science and beautiful to behold when it moves the ADR and hopefully the sales processes along to the satisfaction of all parties.

Biography


John Turley is an onlinegraduate student in Creighton University's School of Law at The Werner Institute for Negotiation and Dispute Resolution in Omaha, NE.  He plans to practice mediation and ADR full time upon his graduation from Creighton in December, 2010.     

Prior to enrolling in the program, John enjoyed a successful sales career as a global senior executive with strong international business experience with Siemens, TYCO International, Verizon Communications, and Sun Microsystems. Currently, he serves on the Mediation, ADR and Grievance Committees of the Western Wayne Oakland County Area Realtors of the National Association of Realtors in Farmington Hills, Michigan.  He is a volunteer at the University of Michigan Emergency Department and Cardiovascular Care Unit where he utilizes his negotiation and interpersonal skills to assist patients and their visitors with their varied needs and to put them at ease.   


 



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