How to Choose a Mediator
The right of self-determination in mediation, and the parties’ first attempt at collaboration, starts from the decision to mediate (if not mandated by an agreement, order, or statute), and from the act of choosing an appropriate mediator. Their right to self-determination on the issue of choosing a mediator, whether that choice is based on cost, qualification, experience, ability, effectiveness, or on any other basis, is critical to framing the mediation and to their hopes of success. Therefore, it is very important that the mediating participants are comfortable with the choice and that they are confident that the mediator of choice will be able to help them resolve their dispute in an effective, compassionate, and thoughtful way, and at a reasonable price. If there is any degree of discomfort, regardless of the reason, it is the right decision to look for another mediator. Here are some of the issues the mediating parties should consider as they consider who to choose as their mediator:
The mediator should have more than one tool in his/her tool belt. If he/she only has a hammer, then he/she may only see nails. For example, your mediator should be knowledgeable and skilled at various conflict resolution models, including, but not limited to the following:
The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles used, the pros and cons of using them, and how to help the parties navigate from one to the other. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration. A skilled mediator will be able to recognize the style being used and help the parties move from Competition to Collaboration, which dramatically increases the likelihood of reaching an agreement at mediation.
The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc… Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process.
The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding. If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement.
The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other, and that they learn during the mediation process, to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.
The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust, and how to help the parties demonstrate: 1) their integrity while acknowledging the other side’s integrity; 2) their intent in a constructive way while seeking to understand the other side’s intent without attacking or feeling attacked; 3) their capabilities and the other’s side’s capabilities, and hone in on the relevance; and 4) the ability to produce results on both sides, which is critical to an effective mediation agreement.
The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties. Here is a list of the behaviors:
Taking Straight
Demonstrating Respect
Creating Transparency
Righting Wrongs
Showing Loyalty
Delivering Results
Getting Better
Confronting Reality
Clarifying Expectations
Practicing Accountability
Listening First
Keeping Commitments
Extending Trust
Inspiring Trust
The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.
The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. This is critical, as mediation is based on self-determination. A good mediator will understand how to help the parties transition from the feeling of being a victim to the feeling of empowerment, which helps them move from competition to avoidance, to accommodation, to compromise, then finally to collaboration, which may mean that the mediator has to be skilled at helping the parties move through the 5 steps necessary to get there.
The mediator should have a high degree of emotional intelligence. The mediator should be able to regulate his/her own behavior in such a way as to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.
The mediator should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge), usually does not have the knowledge, skills, experience, and abilities to be as effective as a mediator who has been mediating for several years. In their professional life cycle as a mediator, they are, in essence, baby mediators. While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills, and abilities to be effective. Ideally, the mediator should be entering the prime of his/her professional career as a mediator.
A mediator with some gravitas can be useful. An experienced attorney, a retiring attorney or retiring judge may have the gravitas built up from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the processor will rely on the mediator for an evaluative approach.
Consider the value of using a mediator that will give you the best chances of resolving your dispute before going to court. Paying a “good” mediator a higher rate before litigation can save tens of thousands of dollars in litigation costs. A day of mediation can cost the parties approximately $2,000.00 each with an experienced mediator who charges $500.00 per hour, whereas prosecuting and defending a lawsuit usually ranges, at the low end, $25,000.00 in lawyers’ fees, plus costs (including another mediation before trial). Litigation costs can easily exceed $100,000.00, depending on many factors, before a final resolution. In addition to the financial costs, there are emotional costs, lost opportunities (opportunity costs), and loss of time, and relationship loss, which can compound the “expense” of litigation.
When lawyers in a case choose the mediator the lawyers should fight the urge to use a colleague or friend as a mediator because of their personal or professional relationship, and should, instead, focus on the above factors, and other relevant factors such as subject matter expertise.
For more information on how to choose the right mediator for your case, how to become a mediator, or how to develop the knowledge and skills you need to be effective in mediation, please email me at attorneypersad@cplspa.com. I am also available to mediate your cases.
Business Consulting
Future Pacing – Working on the New You
“Failing to plan is planning to fail” – Benjamin Franklin
Entrepreneurial and life goals coincide in ways many other goals do not. For entrepreneurs, their life goals are tied to their entrepreneurial dreams, and these goals take the entrepreneur and her family for the ride of their lives. At the beginning of the journey a flood of positive emotions of hope, dreams of making it, feeling of independence, and excitement engulf the entrepreneur. In the first leg of the journey, some pain sets in as the realization of the limitations on resources set in; time, money, necessary relationships, are just three of the hurdles entrepreneurs face during this stage. In the second stage of the journey, the entrepreneur starts to experience enhanced pain and doubt raises its ugly head. If the entrepreneur does not have a good consultant or coach to help navigate the phases of the entrepreneurial process, the doubt grows into a crippling fear, devastating the entrepreneur and, many times, family members.
Future Pacing – YOU 2.0
Skilled consultants and coaches have many tools in their tool belts to help budding and seasoned entrepreneurs. One of the most important tool is FUTURE PACING the entrepreneur to help her create a vision of herself 10 years into the future (YOU 2.0), and helping her build a bridge from now to then. Since the entrepreneur’s business is usually an integral part of her vision of herself, it is necessarily included in the journey from YOU 1.0 to YOU 2.0.
The process begins with the consultant/coach helping the entrepreneur create a detail vision of YOU 2.0 self. This includes the creation of an avatar for the entrepreneur that encompasses her YOU 2.0 physical self, emotional self, spiritual self, the knowledge she has accumulated, the relationships she has, her home, her business, her skills, and everything else that she envisions herself being. Once done, the consultant/coach helps the entrepreneur to reinforce this idea of her YOU 2.0 so that it become her life ultimate mission. The process then turns to an assessment of the entrepreneur’s personal development matrix, so that she can take an honest look at herself. The matrix analyzes the entrepreneur’s core knowledge, skills, abilities, disciplines, dedication, focus, beliefs, values, health, experiences, rules and relationship with herself. The result is usually a clear understanding of the entrepreneur’s personal strengths and weaknesses. This can be an eye-opening process for entrepreneurs, and serve as a “reality check.” Simply put, if you do not know where you are, it does not matter where you are going.
After the personal assessment is complete, the consultant/coach then helps the entrepreneur focus on developing a current relationship matrix. The focus here is primarily external with a focus on the entrepreneur’s relationships, finances, physical assets, other resources, opportunities, and external threats or roadblocks.
With a good understanding of the entrepreneur’s current state, the consultant/coach can then move onto helping develop a future identity, her YOU 2.0 (usually 5 to 10 years in the future). Once this future identity is developed, and the entrepreneur has a vivid image of her future self, she works with the consultant/coach to set reasonable and realistic goals each month and year (with yearly themes) which, once achieved, will get her that much closer to her YOU 2.0. As she travels through the process, she transforms into the version of herself she sees, and consistently re-evaluates her YOU 2.0, upgrading her model self annually, chasing her future with relentless passion.
This passion and thirst for growth and development spills over into the entrepreneur’s business and family, so they all grow together, consistently helping each other reach their YOU 2.0.
Future pacing is just one of the planning tools offered by Business and Executive Coaching Consultants at CPLS, P.A. as a part of our Private Corporate Counsel program. If you would like to learn more or set up a consultation, give us a call at 407.647.7887 or email me at Attorneypersad@cplspa.com.
Mediation and Negotiation Tip
Number 2
Emotions and Value Creation.
Emotions are prevalent in every negotiation setting, whether or not the parties use a mediator to help facilitate the process. Learning how to identify our emotions and our negotiating counterparts’ emotions, how to categorize the emotions, and how to strategically use these emotions can give you an advantage during the negotiation process and help you create value for yourself and your counter-part. Generally, emotions can be broadly categorized as either positive or negative. Positive emotions include feelings that serve you well, including happiness, laughter, joyfulness, excitement, hopefulness, etc.
Negative emotions include feelings that can can serve you well at times but often does not, including anger, anxiety, fear, etc… Before you engage in any negotiation, you should take time to assess your own emotions and what you know about the emotions of your negotiation counterparts. To assess your own emotions, ask yourself questions which force you to think about how you have reacted to questions, scenarios, and experiences in the past. For example: How do I behave under pressure? What do I feel when X happens? How do I react to Y? To assess your counterparts’ emotions, ask similar questions to people who have interacted with them in the past, including the receptionist at their firm, their secretary, co-workers, prior customers, etc.
If you do not have access to anyone who has interacted with them in the past, call them and test their emotions with trigger questions or scenarios. With this information in hand, prepare for your negotiation by envisioning varying scenarios during the negotiation process, and plan how you will use your emotions to your advantage and how you can trigger the required emotions from your negotiation counterparts. For example, at the beginning of the negotiation, you may decide to be warm and friendly to catalyze positive emotions in yourself and your negotiation counterparts, as it will be natural for them to mirror your emotions. Since value creation usually occurs early on in the negotiation process, this technique can set the stage for value creation early. At the later stages of the negotiation process, consider using a negative emotion as a strategy to help you claim more value, as negotiators tend to give more concessions to parties who express anger, even if not genuine.
Finally, throughout the negotiation process look for signs of how your negotiation counterparts use their emotions. Are they being as strategic as you, or are they unable to understand and control their emotions? If the latter is true, all you have to do is identify what triggers their positive and negative emotions and strategically trigger these emotions to get the results you desire. If you trigger positive emotions, stroke these emotions in a manner that encourages them to see the commonality of their needs and interests to your needs and interest and encourage them to help you meet your needs and further your interests, which will help them in the long run. If you trigger negative emotions, demonstrate your understanding of their concerns and feel their pain by empathizing with them, when appropriate, and show them how they can help meet their need and further their interests by helping you meet your needs and helping you further your interests.
You can contact Attorney Tee Persad at 407-647-7887 or email him at attorneypersad@cplspa.com when you are ready to take the next step.
Mediation and Negotiation Tip
Number 1
Active Listening.
When we have disagreements or are negotiating with each other, most of us can’t wait for the other party to stop talking so that we state our position or argument. Sometimes we interrupt the other party to get our position or argument heard. In the worst case scenario, we expressly discount the other side and insist that he/she listen to us. I truly cannot remember one instance where this technique has worked. Instead, try actively listening to the other party by listening carefully effectively. This can be done by repeating back what you understand from them (what they said, what they want, what they claim, etc…). Then, inquire about their motivations and assumptions behind their claims. Finally, acknowledge their positions.
By following this process, you will be able to collect valuable information from them, test your beliefs and assumptions (which may or may not be accurate), eliminate misunderstandings, and foster mutual understanding. Also, when they observe your behavior, strategy and technique, they will learn from you and mirror your behavior, further promoting mutual understanding. This process also forces you and them to account for any difficult tactics either of you have employed. The end result is that you are both more likely to avoid losing important information, acting on wrong assumptions, and damaging your relationship. This, of course, promotes interdependence and mutual growth. Win Win. This strategy and technique is not just helpful in high business conflicts. I can also be used by family members , co-workers, and business partners. Try it and let me know how it works for you and remember, like any other muscle, active listening is a muscle for the mind, the more you practice it, the better you get at it.
You can contact Attorney Tee Persad at 407-647-7887 or email him at attorneypersad@cplspa.com when you are ready to take the next step.
