Tag Archives: Mediation

Planning for a Mediation: Determining your WATNA, LLATNA and MLATNA to Get to Your BATNA


business-3152586_640Corporate executives and Human Resources professionals sometimes find themselves representing their employer during mediations. I’ve been not only a mediator, but also a corporate representative and an attorney during mediations. In all these roles, I came to see the importance of preparing for the mediation.

Just as you would for any negotiation, it is important to know what you and your company are trying to achieve. (If you’re an attorney reading this, it is just as important that you know what your client needs to achieve.

There are lots of materials written about knowing your BATNA (Best Alternative To a Negotiated Agreement) before settling a case. But how do you decide what your best alternative to settling the case is? Remember that your BATNA cannot be dependent on anything the other party in the case does—it must be something that you can control or that you think will probably happen regardless what the other party does.

Determining your BATNA can’t be done in a vacuum. It is often easier to start by determining your WATNA — the worst alternative to a negotiated agreement. Sometimes, the worst alternative is the company goes bankrupt. Other times, it’s a huge PR debacle. Or maybe the worst that can happen is only that the company loses some money, but it isn’t a significant hit to the bottom line.

Only by deciding the maximum amount at stake can you decide how important this case is, and thereby decide how much to throw into settlement. (Note that though I might talk in terms of money, there are often other important resources at stake also—reputation, intellectual property rights, etc. Those must be put in the equation when valuing the case also.)

Other important considerations in determining the BATNA are LLATNA and MLATNA. I have seen parties to mediations get hung up on the least likely outcome in the case—their LLATNA (Lease Likely Alternative To a Negotiated Agreement). They see a 2% chance of winning big, and that’s all they can focus on. But your LLATNA should not determine your BATNA.

By contrast, the MLATNA is the Most Likely Alternative To a Negotiated Agreement. It is a much more useful concept.

For example, If the outcomes to an employment lawsuit could range from the employer winning its attorneys’ fees (with a 2% likelihood of occurring) to losing $1 million plus the plaintiff’s attorneys’ fees of $150,000 (with a 5% likelihood of occurring), the MLATNA might be losing $100,000 plus the plaintiff’s attorneys’ fees of $150,000 as well as your own (with a 40% likelihood of occurring). Or the MLATNA might be winning the case, but having to pay your own attorneys’ fees of $150,000 (also with a 40% likelihood of occurring). Now you have a range to work with—the case is worth at least $150,000 and up to at least $400,000 (the damage award of $100, plus $300,000 to cover both sides’ attorneys’ fees.)

Clearly, it is important to have some advance discussions with your attorney about the range of outcomes in a case and the likelihood that each might happen. Attorneys will not commit to specific outcomes, but they should be knowledgeable enough to talk in ranges both of verdicts and probabilities. Only after assessing the possible outcomes in the case—as well as the likelihood that each might happen—can you decide what you are willing to settle the case for.

You might go with a simple weighted average of the possibilities for your walkaway point. Or you might decide that the WATNA is so bad that you will lean toward settlement at (almost) any cost short of that. Or you might feel optimistic and look only at cost of defense as the settlement value of the case. But the point is, you need to consider all the possibilities.

Once you’ve looked at the range of outcomes, what do you do?

You and your counsel should discuss your mediation strategy. Where do you want to start your settlement offer? How do you get the other party talking in your settlement range? What do you have to offer that has no cost or is of little importance to you, but very important to the other side?

Then take your planning to the next level: What do you disclose to the other party in a general session? What do you disclose to the mediator in caucus? Who should be present at the mediation to maximize your credibility and persuasiveness to the other side?

* * * * *

The purpose of this post is to emphasize the importance of planning prior to a mediation. When planning, you need to consider and evaluate the possible outcomes of the case. Then set your strategy to land you in the settlement range you desire.

But be flexible. You don’t know what you don’t know. You might learn new facts during the mediation that cause you to rethink the possibilities.

When have you planned effectively for a mediation or other settlement discussion? What worked for you?

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Thomas-Kilmann Model (Reprised): When Compromise and Collaboration Are Difficult


How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in Mediation

I’ve posted a couple of times before about the Thomas-Kilmann model depicting five modes of handling conflict (see here and here). All of us gravitate to one or two of the  five conflict management styles.

As mediators, many of us are trained to use a compromising conflict resolution style—the style in the middle of the matrix, with moderate levels of assertiveness and cooperation. Many mediators also aspire to use a collaborative style—high in both assertiveness and cooperation.

As I reflected on the various styles of managing conflict recently, it occurred to me that there are two factors which often make using either compromise or collaboration very difficult during a dispute. These two factors are (1) lack of trust and (2) demonization of the other party.

1. Lack of Trust Means the Parties Feel They Are Likely To Be Abused

In order either to compromise with another party in which each side gives up something, or to find a win-win solution (the essence of collaboration), you have to see some parity between what you are giving up or gaining and what the other side is. Without trust, it is difficult to feel that you are not giving up more than the other side or that you are gaining as much as the other side.

If there is a history between the parties which one of them believes shows bad faith by the other, then trust is minimal or nonexistent. Past inequity in the relationship makes one or both parties feel that they will probably be mistreated again.

In these situations, the mediator needs to do a lot of ground work before getting to the core issues in the dispute. Perhaps little compromises can be reached or little collaborations on minor issues can build trust, but it is likely to take time.

2. Demonizing the Other Party Destroys Incentives to Work Together

Unfortunately, in too many disputes, one or both parties views the other as evil incarnate. This might be because of the history between the parties, or it might be because their dispute involves an issue that one or both of them perceives as a moral issue (such as abortion, or restrictions on guns in schools, or the death penalty). But even economic issues can take on a moral lens (e.g., drug companies and other for-profit healthcare businesses should never make more than a minimal profit, or lawyers fees are too high, or no employee should get a larger raise than anyone else).

Once values and perceptions of morality and immorality have entered the equation, it is difficult to compromise or collaborate. The “other” becomes an evil person or entity, and ceding any ground or granting them any favors becomes repugnant.

In these situations also, the mediator must work slowly. It might take a long time to dig deep enough to find the common ground between the parties. (For example, the importance of school safety, or the need for some incentives to drug companies to encourage research into new drugs.) Discovering common values is the only way to dispel the demonization of the other party.

* * * * *

I have seen many situations where lack of trust and/or vilification of the other party’s character and intent have sabotaged a mediation. These are difficult cases. Sometimes I’ve been successful in getting the parties to come to some rational place where they can compromise, but sometimes their biases go too deep and settlement (at least for that day) is impossible.

Moreover, moving beyond compromise to collaboration is even more difficult. Only rarely do parties start at a point where they despise each other and reach a resolution where everyone wins. I think I’ve seen it happen once.

What has your experience been when mediating situations involving lack of trust or demonization of the other party?

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Deconstructing Your Grievance Story


Last week I attended the Heartland Mediators Association’s conference featuring Eileen Barker as the speaker. Ms. Barker spoke about forgiveness. In a single post, I can’t do justice to her day-and-a-half seminar about forgiveness. And she only touched on a part of her twelve-step forgiveness process. So I will focus on one step in the process—deconstructing our grievance stories.

As a mediator, an attorney, and a Human Resources professional, I have heard many, many grievance stories over the years. In the legal context, the grievance story takes the form of someone who feels wronged who wants to punish the person or institution that wronged them—whether it be the other person in a car accident, the owner of the premises where they fell, the manager who fired them, or any other situation causing them pain or grief.

ForgivenessWorkbook coverWe all tell stories to find the meaning in what is happening in our lives. According to Ms. Barker, there are three essential elements in a grievance story:

1. The aggrieved individual interprets an event in a personal way, as something intended to impact him or her in a negative way.

2. The aggrieved individual blames someone else for how he or she feels.

3. The aggrieved individual tells a story in which he or she is the victim, powerless to control the situation.

Note that these are my articulations of the three elements. For more, see Ms. Barker’s Forgiveness Workbook: A Step by Step Guide, available here.

Let’s take a workplace example: I’m thinking of a time when I did not get a job I thought I was well- qualified for. The hiring manager told me that he “would sleep better at night” if he hired the other candidate. I immediately took that statement personally—I interpreted the remark to mean that he believed me unqualified and he would worry about me in the role. I felt mortified to think he thought I was unqualified and shamed that I had even put myself forward for the position. And I blamed him for making me feel that way. Of course, I was the victim—there was nothing I could do to change the situation, because he had the power to decide who to hire.

Deconstructing the story involves changing the three elements of the grievance story:

1. Looking for another way to tell the story so it’s not about the aggrieved individual.

2. Looking for the positive intention in the other person’s action, not blaming them.

3. Turning the story so that the aggrieved individual is the hero, not the victim, to give him or her back the power.

In my example above, I had to re-frame my story to tell myself that the hiring manager was looking for the best person for the job. I had to accept that on paper the other candidate had more experience than I did, even if I believed I was best able to take the job where it needed to go in the future. By retelling the story, I could see the hiring manager’s positive intention—he wanted the best person for the job, even if I disagreed with who that was. And I had to find ways to take back my power. Within a few weeks, I accepted another position that allowed me to grow professionally, even if it wasn’t the position I had first applied for and that I really wanted.

Deconstructing my story took time. I was quickly able to move on from my initial feelings of mortification and shame. But it took a couple of years for me to see the advantages of the situation I’d found myself in and to realize that I grew from the experience and that maybe I was better off than I would have been had I been thrust into the role I’d applied for.

This deconstruction of our stories is part of how we come to forgive. I later reported to this hiring manager and we built a good working relationship. I forgave his unfortunate comment that he “would sleep better at night” if he hired the other candidate (though obviously, I never forgot it).

When have you told yourself a grievance story about a situation in your life? How did you deconstruct it?

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Coping with Implicit Bias in Mediation


workplace-1245776_640A few weeks ago I attended a training program for mediators on implicit bias. As the presenter said, we all see every situation we encounter through the lens of our own experience. That’s what gives rise to implicit bias.

One definition I’ve seen of “implicit bias” is “a term of art referring to relatively unconscious and relatively automatic features of prejudiced judgment and social behavior.” This sounds bad, but the presenter at the training program made it clear that he did not think implicit bias is bad or wrong or morally repugnant. In his opinion, implicit bias isn’t the same as prejudice. It is simply the lens through which we see the world. We can’t escape it, but we should be aware of it.

Whether it has a moral dimension or not, implicit bias does impact every step of dispute resolution. To begin with, our view of the world colors how we interpret the events that happen to us. Moreover, the lens through which we see events stirs up different feelings and reactions about what happened in each person involved—each one of us sees the world differently.

So what should mediators do about implicit bias?

Recognize and Manage Your Own Implicit Bias.

The first step in dealing with implicit bias is to be aware of it. As mediators, we should reflect in advance what aspects of the case might trigger our own emotions, as well as those of the parties. We need to be mindful of our own hot spots.

We can prepare ourselves before a mediation by setting aside our own problems and concerns, so that we can address the parties’ needs. Some mediators engage in other physical activity before mediating. Others practice meditation or other mindfulness exercises. The point is to open our minds to being empathetic to people who come from different perspectives than we do. We need to be ready to engage the parties where they are, and not where you are.

Mediators are supposed to be neutral and impartial. Managing our own implicit bias is critical to our value to the dispute resolution process.

Recognize and Manage the Implicit Bias of the Parties.

The next step is to understand others’ perspectives. As mediators, we need to manage the process and not let the parties act vindictively. But it is important to let their emotions into the process. Let the parties tell their stories.

Asking questions in a calm and respectful manner is a good way to determine what biases each party (and each attorney) brings to the dispute. Sometimes, the parties are less of the problem than their lawyers, so it might be necessary to explore the attorney’s perspective as well as his or her client’s .

As mediators, we have to assess whether it is more productive to have these probing conversations in a joint session or in a caucus. If the parties are working well together, it can be more effective to let each person tell his or her story, then ask the other “Does that ring true for you? If not, why not?” But if they are not behaving respectfully, or if emotions rise out of control, then separation is probably best. Then, however, the mediator must act as the interpreter of the story to the other side . . . which risks bringing our own biases into the discussion.

The key to dealing with implicit biases is to treat them as an unavoidable part of the equation. They aren’t good or bad, they are just another set of variables that will impact the process and the result. Remember that mediation is designed to let the parties resolve their own conflict—biases and all.

When has your implicit bias impacted a dispute you were trying to resolve?

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Should a Mediator Let the Parties Vent?


conflictI attended a mediation training program several months ago in which the question was asked: As a mediator, should I let the parties vent or should I control what they say to each other?

First of all, let’s recognize the absurdity of thinking that a mediator can control what the parties say. A mediator can help the parties shape how they communicate, but the mediator cannot control anything.

But it is a good question to ask whether and how the parties should vent their emotions during a mediation.

I always believed–both as an attorney with clients and witnesses who were sometimes distraught and as a mediator trying to resolve sensitive disputes–that emotions were part of the case and needed to be recognized. Still, how those emotions are dealt with can affect whether the parties will reach agreement. I often found myself in the position of absorbing my client’s venting, or, in a mediation, one of the parties’ venting. I listened to them, and sometimes just having someone listen to them diffused the emotional tension in their conversation and they could move on to settle the case.

Early on, the mediator needs to assess how the parties are communicating. Can they express themselves well? Can they describe their feelings in addition to the facts? Do they listen to each other? How do they react to each other’s statements about their feelings? If the parties are already in a situation that requires mediation, it is quite likely that one or both of them cannot deal with their emotions and/or those of the other party. If they both could address the facts rationally, they would settle the matter themselves. But if they can’t deal with their emotions effectively, the mediator will most likely need to intervene.

How can the mediator intervene?

One way is to hold separate caucuses with the parties. In a caucus, the mediator can listen to the emotional content and help filter it. Then the mediator can coach the party on expressing his or her emotions in a less confrontational or blaming way. Alternatively, the mediator can convey the party’s position through shuttle diplomacy and decide what to share with the other side. Both of these methods can defuse tension. Which to use depends on how capably and quickly the party can learn to express his or her feelings constructively.

Another method to use, particularly when caucusing is impractical, is for the mediator to rephrase the emotional statements in a way that recognizes their validity but doesn’t blame the other party.

So, for example, the mediator might rephrase Employee A’s statement “Employee B is always bad-mouthing me to everyone else in the department” into “When Employee B says something about how you handled a task, you feel he is telling other people you aren’t doing a good job.” When Employee A agrees with this statement (he will likely agree or expand on the statement), then the mediator can turn to Employee B to ask, “Do you mean to imply that Employee A isn’t doing a good job?” Often this will lead to a fruitful discussion about what was really meant.

Emotions have to be considered in any mediation. How they are dealt with will depend on the parties’ communications skills and past relationship. The mediator needs to address the emotions, but must also understand that control is impossible.

When have you had to diffuse emotions during a negotiation?

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Breaking Impasse: In Congress, in Mediation, and in Life


handshake-1830764_1280A few days ago I met with a small group of professional women I know. All of us had had successful corporate careers, though our lives are taking different turns at the moment. As in many group meetings these days, at some point the conversation turned to a discussion of politics. I am probably the most conservative member of this group. Others are moderate, and a couple are quite liberal, though we all are within what I would call the “mainstream,” or center, of our political spectrum today.

We started discussing when our political system got off track—when the Republican and Democrat parties quit compromising to get things done. Some blamed Republicans for their “never say yes” attitude during the Obama Administration. These women argued, “Well, of course, the Democrats have to behave the same way now.”

Others blamed past Democratic actions, going all the way back to Senator Ted Kennedy’s scorched-earth approach to stop the Robert Bork nomination to the Supreme Court—a legal scholar who was clearly as qualified as any candidate since for the Supreme Court. “Well, of course, the Republicans have to retaliate.”

And there are many other events we could point to that might have started—or escalated—the current impasse in our political system.

Impasse, I thought to myself. We are at impasse. What has my mediation training taught me about breaking impasse?

I’ve mentioned before a mediation training presentation I attended with Ken Cloke, of the Center for Dispute Resolution. One point Mr. Cloke made during the program was that when we are in conflict with others, we have choices to make. Some of the choices we must make are

  • Whether to engage in the conflict and behave badly, or calm down and try to discuss it.
  • Whether to acknowledge the other person’s truth or deny it, remain rooted in one’s own story, and slip into biased or delusional thinking.
  • Whether to experience intense negative emotions and feelings, or to repress and sublimate them.
  • Whether to experience one’s opponent as an equal human being entitled to respect, or to demonize him or her and victimize oneself.
  • Whether to aggressively assert and hold tight to one’s position, or to search for solutions that satisfy both sets of interests.
  • Whether to forgive, reconcile and re-integrate with one’s opponent, or remain isolated and wounded deep inside.

Now, I can hear most of us saying, “Yeah, but . . . “

Yeah, but she started it.

Yeah, but he is engaging in alternative facts; there is no truth on his side.

Yeah, but I cannot repress how I feel on this issue.

Yeah, but there is no way to reconcile our two positions.

Yeah, but . . . .

Yeah, but . . . What if you did?

What if you did calm down? What if you did at least ask why the other side feels the way they do? What if you did search for solutions with an open mind? What if you did try to reconcile or compromise?

What’s the worst that could happen if you did seek compromise? It’s unlikely to be worse than the status quo.

While I started this post describing the political differences we face in our nation today, I hope readers see that the questions I’ve asked apply to most situations where we need to negotiate with others. In the corporate world. In consumer and family situations. Wherever we are obliged to work with others, we should ask

What if we tried to understand the other party’s position?

What if we tried to compromise?

Would we be any worse off than if we did nothing?

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The Magic of Mediation


cloke-coverI recently attended a presentation by Kenneth Cloke, author of The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution (and other books). Mr. Cloke is also the Director of the Center for Dispute Resolution. His presentation was for mediators, and he asked the audience of practicing mediators and students of mediation whether any of us had experienced the magic of mediation. Many hands went up, including mine. There are times during a mediation when a corner is turned, the impasse is broken, and the parties shift from argument toward resolution.

Then Mr. Cloke asked if we knew how to create the magic—to make it happen every time. And, of course, none of us did. Not really. We just knew that sometimes it happens, sometimes it seems that we did something that helped, and sometimes the parties get there with little or no assistance from the mediator.

In fact, Mr. Cloke said he didn’t know how to create the magic either. Not reliably. But, he said, there are things that mediators can do to increase the likelihood of the magic happening.

The first time I experienced the magic of mediation was not as a mediator, but as an attorney. The mediator in that case moved the plaintiff employee in a discrimination lawsuit from wanting to be promoted to agreeing to resign, in exchange for a reasonable severance payment and a few other terms. Although most of the work was done in caucus with the plaintiff, the mediator convinced this employee it was in his best interest to leave our company and start working in another field where he could pursue his passion. Hard work for the plaintiff and for the mediator, but I’m sure the man benefited from the change—we are all better off when we work in a job we love with people who think we are doing a good job.

That case was what convinced me of the value of trying mediation in almost any dispute. If a mediator could help an individual move so far in a single day (albeit a long day), then it is worth trying to resolve any lawsuit through mediation.

  • During my years as a mediator, when I have seen the magic happen, it has usually been when the parties stop talking to me and start talking to each other.
    In one case, two branches of a family realized their family relationships were more important than the money one owed the other. They focused on preserving their relationship, and the plaintiff gave up her monetary claim, leading the defendant to make non-monetary concessions the plaintiff needed.
  • In another case, two long-term friends realized that litigation over a transaction between the two of them had gone bad was not the answer. They acknowledged that their friendship was probably over, but they decided it would be better if they just walked away from the dispute. I had proposed that as the only answer I saw—they were beyond being able to agree to the facts—but I was surprised to hear first one and then the other of them agree to this solution.
  • And in a third case, parties to a business dispute, who had not previously discussed settlement, were both able to discuss the matter rationally as soon as they got together. My presence was superfluous, other than to require them to be in the same room for the mediation. I wondered why a lawsuit had been filed in the first place.

Sometimes, a mediator can contribute to the magic, but usually all the mediator does is to help the parties look inside themselves and think about what is most important to them. When people realize that their dispute has taken over their lives, when they would rather be focused on other things, then the case can settle.

A mediator mostly helps by listening. A few guiding questions can get the parties talking and thinking. Questions such as:

1. Why is that important to you?
2. What did you expect to happen that would have avoided this conflict?
3. What would you like to have happen now?
4. Why do you care about this problem at this time?
5. Will you ever convince the other side you are right? If not, when will you stop trying?
6. What will happen if you don’t resolve your dispute?
7. What will change if you do resolve your dispute?
8. What are you not talking about that you still need to discuss?

The types of questions that can promote dialogue between the parties are endless. The point is to probe beneath the accusations and judgments that are where the parties begin. Often, these patterns in communication have gone on for years, so it might take time to get beyond them. Still, I wait in every case for the moment when the parties turn to each other. Then, maybe the magic can happen.

Mediators, when have you felt the magic of mediation?

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