1. Actively Listen
Active listening is a learned skill. Much of the time we spend listening, we are also thinking how we can use what the other person is saying to develop a reply. As attorneys, especially litigators, we take pride in our ability to do just this. We purposefully listen for the holes, inconsistencies and flaws in testimony, and then we use that as fuel for cross-examination and closing arguments. This kind of listening alone, however, does not tend to aid resolution. The good news is that in mediation the kind of listening we usual do and the kind of listening that aids in conflict resolution are not mutually exclusive. In fact, they use much of the same skill set. If you are genuinely interested in trying to resolve a conflict, however, listen not just to be able to point out the flaw in your opponent’s argument and reply, but also to learn.
What does this mean? Listen for the little nugget of information about what drives the other party. What are the secondary motives behind the other person’s position? For example, in a personal injury case, are there other seemingly unrelated issues that are getting in the way of settlement, such as credit card debt or pre-existing medical bills? Is someone else, such as a friend or relative, injecting him/herself into the negotiations and hindering resolution? What impact are hurt feelings having on negotiations?
Many times we dismiss these things as irrelevant, and they may very well be irrelevant to the underlying litigation. Hash that out, if you don’t settle, at trial. To the extent these issues motivate or steer a party’s decisions during negotiations, however, they are relevant to mediation. A skilled mediator will listen for and address them, and a skilled negotiator should do so, too.
2. Creatively Solve Problems
Most of us have taken part in a team building exercise at some point in our lives that requires the group to work together to solve a problem. There is no right way to accomplish this task. In fact, it is likely that every successful attempt will be different from the one before it because the people and the circumstances will always be different. However, there something all successfully groups have in common: the used creative problem solving skills.
Resolving a dispute, whether through direct negotiations or through mediation, is no different. Once you have spent some time listening and you have learned what it is that motivates the other party and what external factors might be influencing the negotiations, use those new little kernels of information to brainstorm creative ways to resolve differences. An effective solution does not always have to involve money exchanging hands, and many times an effective solution will include a combination of money and other items. Ask yourself, what things other than cash could make a difference here? In some cases, a settlement may need to include cash, but perhaps how the cash is paid out will make a difference. Would a payment plan or structured settlement be helpful? In other cases, a genuine apology might make a big difference, or an agreement to implement new policies, provide training, or make a charitable donation might be the game-changer. These are just a few examples, and a good mediator will help the parties generate and explore other possibilities, too.
Both parties have to be willing to engage and make compromises for any negotiation to work. Following these steps will not guarantee a settlement, but can help move the negotiation forward.