In last month’s blog, Jim Beatty discussed the mediation program for probate matters in Polk County. This blog will piggyback on that blog. Recently, I have had my first experience facilitating a mediation involving a probate matter. In anticipation of the mediation event, I did some research regarding styles of facilitating a mediation event and the styles of the positions of the disputing parties.
Not only is it important to clearly identify a mutual understanding of the disputed issues, but equally important to identify the emotional impact which both have related to the dispute. The fact issue will most often be an economic (business matter) and involves compromising. The emotional side of the dispute is more difficult to identify and address, but must be dealt with during the mediation event.
The parties are invited to discuss their feelings about the dispute with the mediator which they often do. They are also invited to discuss their feelings with the other party but most often do not.
Within the last year I read an article dealing with negotiations entitled “Almost Everything Is Negotiable”. Following is some advice I gleaned from the article:
- Know what you want. Have a clear understanding of your strengths and weaknesses of your position and what you want to ask for.
- Be specific with what you want. Be concise, brief and clear.
- Listen carefully to what the other side wants. If it is unclear, ask for clarification.
- Be prepared to compromise. Know what your bottom line is.
- Do not rush. Time and sometimes silence are a friend.
- Negotiation strategy. Who goes first? This is often difficult. At the beginning of the mediation event, I meet with the parties and their respective attorneys in a group meeting at which we discuss any ground rules and describe the procedure for the mediation and state the issue(s) so that they are clearly understood by all parties. They are then informed they should return to their separate conference rooms at which time they should decide and discuss what their proposed compromise position is. When both parties have formulated their compromised position, I invite their respective attorneys to meet at which time one or the other of them speaks first. Normally, as in a lawsuit, the party that is in the position of being plaintiff to the dispute goes first with his/her compromise proposal. The compromise proposal is then taken back by the other attorney to his/her group and the negotiations continue until there is a resolution. By resolution I mean there has been a successful compromise made by the parties or there is an impasse and the mediation is terminated.
- Be prepared to walk away. Avoid being backed into an agreement you don’t want.
- Important point to remember: People with whom you make deals on a regular, or even infrequent basis, have long memories. If you do not negotiate in good faith, or embarrass them, or make them feel like they have been disrespected or used, his/her resentment will come back to haunt you in multiple ways.
By – Ned P. Miller