With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
The well-recognized psychological phenomenon known as “commitment to decision” or “escalation of commitment” poses a significant challenge to decision makers and negotiators. Once the commitment to decision hardens, otherwise intelligent and perceptive negotiators become increasingly entrenched in the continued pursuit of an original decision that from all objective data is doomed to failure.
Evolving research and studies, as well as my preliminary discussions with the September ADR panel presenters, emphasize that the selection of the “right” mediator is the most important step on the journey to a successful mediation. As the data and my conversations have reinforced, qualified mediators possess certain critical characteristics such as creativity, persistence, subject matter knowledge, and listening skills. I want to focus now on preparation.
Mea culpa, but as a traditionalist, "Online Dispute Resolution" (ODR) had absolutely no appeal to me. But could it be that traditionally trained mediators have missed the boat, and there may be a class of mediations that lends itself to some form of ODR either in whole or in part? John F. Kennedy may have said it best, “Change is the law of life. And those who look only to the past or present are certain to miss the future.”
During the past month I have had the good fortune to present to and learn from judges and business in a few different webinars and programs. These presentations underscored how an old idea coined approximately 30 years ago by Mark Galanter is still a goodie and gaining greater currency in the courts – “litigotiation.” With the evolution of judicial case management practices in state and federal courts, litigators would be well served to recognize this evolution and adapt accordingly.
