imagesIQN1T1YVRegular readers of this blog may recall my 10 tips for participants who took part in the recent ICC Commercial Mediation Competition held in Paris – a wonderful time was had by all but that’s for another post.

One of those tips was about keeping it real and suggesting a ‘steel fist inside a velvet glove’ posture when protecting important interests (aka things that are fundamentally important to you) at the mediation table. 

Judging from the feedback at and after the competition that phrase struck a chord – like  law student and soon to be lawyer, Lamice Nasr of the Saint Joseph University in Beirut, Lebanon who wrote saying the “steel hand in a velvet glove theory is now a fundamental aspect of my professional career”.

But what does it mean?

Well, for me its as much about how (often the velvet) you say something as what (often the steel) you say at mediation. Like many aspects of mediation, you can say almost anything so long as how you say it is appropriate.

So for instance, you might give early signposts of no-go zones instead of hitting them with a bump down the track and risking surprise and resulting impasse.

Something like this in your opening might work… “you probably need to know that while we can talk about X or Y, and we want to do that sooner rather than later, when we get to A and B, we will find it the hard to depart from where we’ve already signalled we are – but we do want you to know the reason for that – because we need you to see us as constructive albeit firm in some important areas – as you will be no doubt around your C and D….”

To explain how it is when what is important to you seems different from what is important to them, I turn to my friend Margaret Halsmith of Perth, Australia. Here she explains what happens when a neutral facilitates an even handed approach to exploring and explaining what is important to each of the parties at mediation.

   Here’s a series of diagrams I developed to describe how you know when you’re in a mediation and when you’re not, and how you know when you’re mediating and when you’re not.

I developed these diagrams to explain mediation to my clients and to tertiary students. I’m often asked for them, so here they are.

Mediation is not …

Mediation is not compromising on your preferred outcome.

graphs 130428

When your preferred outcome is to go in another direction from another person’s preferred outcome there is often conflict. How acceptable is the other person’s preferred outcome to you?

graphs 1304285

Their preferred outcome may be low in acceptability to you. Your preferred outcome may be low in acceptability to the other person. You may each be saying ‘My way or the highway.’

graphs 1304283

If a settlement is what you need, you may have to give in and the other person may have to give in. Settlement comes from each of you accepting an outcome less than your preferred outcome.

graphs 1304284

An efficient, competitive settlement will be along the limit of settlement which means that both you and the other will have given in to some extent. An inefficient settlement will be in the area of potential settlement which means that you and the other person will have given in more than you needed to.

This is a settlement conference which is sometimes mistaken for mediation.

There is another way.

Mediation is …

Mediation is reaching a creative agreement on what is important to each of you

graphs 1304286.5

When what is important to you seems different from what is important to the other person there is often disagreement. When a neutral person facilitates an even handed approach to exploring and explaining what is important to each of you, you are on the way to mediation.

graphs 1304287

A creative, cooperative agreement will be reached in the area of mediated agreement which means that you and the other person have designed an agreement that adds value to the competitive agreement above.  The sky is the limit.

graphs 1304288

An efficient, cooperative agreement will be along the line of likely settlement, which means that both you and the other person have reached an agreement which meets maximum criteria for what is important to each of you.  Compare the outcome of mediation in this diagram with settlement conference above.

The difference between these approaches is in the questions that are asked throughout.  In a settlement conference, the persistent questions will be ‘What is your preferred outcome?’ and ‘How much will you compromise?’.  The primary question of a mediation will be ‘What is important to you?’

You have a choice between competition and cooperation and the results that flow from each.

For more clear thinking articles from Margaret please visit her at http://margarethalsmith.wordpress.com/

 

 


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2 comments

  1. Dear
    Geoff,

    I do
    agree without question that it is an extremely good advice to “give early signposts of
    no-go zones instead of hitting them with a bump down the track and risking
    surprise and resulting impasse”.

    Considering
    you have prepared carefully for your negotiation, meaning that you know your
    interests well and analyzed what is important to convey to the other party, and
    you are up to date with your assertiveness skills, one can say that explaining
    your no go zones to the other side is essential. But, talking about realism, it
    is also the easy part.

    The
    trick is, how do you make it credible? How do you get the other side to believe
    in it and roll with it in the negotiation? In fact, you can say almost anything
    at the table as long as how you say it is appropriate, but saying things that
    has an effective impact in the other party, and allow you to effectively get
    what you want and advance your interests, perhaps require more thoughtful
    measures. I think you have signaled those in your example, when you
    demonstrated briefly the need for an explanation. I would like to dwell a
    little bit deeper on this. And I think it is important because this is a
    critical issue that is not actually reflected in score-sheet of the mediation
    Competition you mentioned, used to evaluate student’s performances.

    I
    have to admit I am not a fan of the fist metaphor. The idea of a fist with a
    velvet glove brings about some type of thrust, with nice words. Since nobody
    wants to loose in the market and reciprocity is a golden rule in negotiation
    and mediation, I would say, if it looks like a fist, you may get another fist
    back, also with a velvet glove. And you may simply reach an extremely polite
    stalemate.

    Negotiators
    often deploy tactics to influence the other side’s perceptions. Every
    negotiation begins with high expectations from each side. The majority of negotiations
    begins with resistance, and one should not be intimidated by hearing some type
    of “no” or “fist” in the beginning of the session. That is only natural. In
    fact, most cases begin with positions and expectations far apart. It is the
    role of every negotiator to probe for the other side’s limits or reservation
    value, and protect her own. Many would argue that one should try to get as
    much as she can, as long as the other side is left minimally satisfied.

    Merely
    stating your no go won’t solve the problem. You need to make it in a credible
    way. There are ways to do it. In my view, the first asset that may help you in
    this task is your reputation. This is why maybe a good advice for students in
    this regard, is to care about developing a reputation for being straight
    shooters. If you have a good reputation, as an honest, transparent and fair
    negotiator, you certainly have an edge in making the other side understand your
    no deal.

    If
    your reputation hasn’t reached the table you are at, another advice, be
    impeccable.

    That
    is two-fold. First it means prepare your framework to present the idea of your
    no go carefully. There has to be a logical reason behind it, one that is easy
    to explain. You need a logical reason, one that stands, to support why you have
    no way other than playing the chicken game to the end. You have to avoid
    inconsistencies in your speech, strategy and behavior and pay attention to your
    non-verbal cues. You may also make use of anchoring and meta-anchoring skills.

    It
    is also important to be ready to discuss the issue open-heartedly, to answer
    all the questions you will get and demonstrate your strong willingness to
    continue thinking about options. If the other party realizes you are also
    concerned about their interests in finding a solution, by the use of the rule
    of reciprocity, you may get to advance your own interests.

    You
    should also make sure that this is a true interest you are protecting, not a
    position. I’ve mediated many cases starting with strong flagging of no-go
    zones, and in the end, after expectations were naturally worn out in the
    process, parties made concessions on those issues, and left the table truly
    satisfied with the outcome.

    William
    Ury presents a superb framework to deal with this type of situation, in his
    work “The Power of a Positive No”. He suggests you should “sandwich” your no.
    Start with an “yes” to yourself, meaning, explaining the reasons why you have a
    no go zone. Then, present what your no go zone is. And then, present the second
    “yes”, the second slice of the bread, bringing about a positive discussion
    about the future and the development of options.

    Healthy
    negotiators don’t give in to strong tactics in a negotiation table. Simply
    asserting your “no deal” will not solve the problem. You have to do it
    carefully. People give in to logic, to the understanding that your warning is
    credible, that you will not give in, and that what you expect them to do in
    return is feasible for them and take into account their interests. The problem
    is not solved on a single statement, but a bigger problem could be created by
    it.

    I
    understand your point about making clear what your interest is – what you
    called a steel fist, and doing it carefully – what you mean by using a velvet glove.
    I agree with you completely in substance. My only concern is that this metaphor
    is easy to be misunderstood and misapplied. A fist, a symbol of aggressiveness,
    polite or not, could compromise the entire negotiation, and prevent it from
    reaching the integrative levels presented later in your piece. I would rather
    get a sandwich than fist with a velvet glove. Who wouldn’t?

    Cheers
    from Brazil,

    Diego
    Faleck

    1. Diego, great comments and worthy of a post in their own right. What I would like to do is pick up on some of the points you make in my next post if I may.

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