Mediation: Mental Aikido

One of the central principles of martial art forms like aikido and judo is conservation of energy. You can help your opponent get where they want to go with minimal effort, as well as get what you want out of the exchange. Nage and uke, two seemingly opposite forces, winding up in the same place through joint effort.

Mediation is legal aikido.

Earlier this week was the first round of the mediation competition. In teams of two we analyzed two sets of facts – one known between the two parties, plus an additional confidential briefing per side. We then prepared a statement of our best and worst case scenarios as well as our reasoning behind our division of labor and strategy.

The problem this round was an insurance claim dispute between an insurance company and a promoter on tour with an 80’s band making a comeback. The lead singer had been arrested on the German leg of the tour, and the promoter claimed against the policy for the cost of the missed shows. Meanwhile the insurance company claimed the promoter should have known about the arrest warrant and their failure to disclose meant they weren’t entitled to recover.

In addition to both teams, there was a mediator present to help facilitate the discussion, and a judge who scored us throughout and then offered feedback at the end.

Representing the insurance company, my preparation focused on the financial realities of my client’s situation. They wanted to expand in the music industry, so a PR problem here could be disastrous. We felt we had facts to prevail in litigation, but the cost and timing of it wouldn’t be desirable. More importantly, the timing of the claim by the promoter — i.e. before the cancelled shows had been rescheduled and hard numbers of the net losses calculated — made me suspicious the main issue was one of cash flow. Or worse, the entire Germany situation was a publicity stunt we were now being asked to pay for. I didn’t conduct any independent research of the insurance company’s legal position, since I wanted to avoid litigation.

Things I learned:

-I didn’t panic when the other side’s solicitor presented a piece of legislation I hadn’t heard of. As the judge later said, however, a well placed question about it’s lack of retrospective effect would have knocked it out of the running early and irrefutably.

-I seem to hear most of what the other side says, but that hearing doesn’t always sink in deep enough to let me be critical with the new information on the fly. If the year of that piece of legislation had sunk in, I think I would have come to the realization to ask about the retrospective effect, for example. And the tour manager mentioned his other superstar client, which was EXACTLY what MY client had hoped to learn about! Instead of asking about it, we glazed over it in our rush to make our own argument.

-All four of use REALLY want to get out our points of view, and it makes us step all over each other’s linguistic toes. It’s a difficult situation because we’re timed and we know it, but at the same time we need to let each other finish their points and pay more attention to our listening. It was never interruption to the point of rudeness, and I think it was more a manifestation of nerves than anything else.

-We’re also prone to do a better job of attacking or whittling away at the other side’s position than we do of defending our own. There’s an inherent desire to reach a compromise, which isn’t always in the best interests of our clients. The trick is trying to find that middle ground between being unwilling to budge — playing hardball — and yet still preserving your client’s interests.

-I need to pay attention to my questions and make sure they stay questions and don’t turn into statements. There was a situation right before our last break where I almost painted myself into a corner by stating some of the promoter’s costs were fixed instead of asking if they were.  I got lucky the other side reopened the issue by mentioning they could lower the costs in the rescheduled shows.

-My open-ended questions were effective, as was my long-term and “outside the box” problem solving approaches. By the end of the session I’d come up with an angle that seemed likely to reach an agreement by having the insurance company reimburse the trimmed-down replacement costs of the shows as well as applying a discount, instead of concentrating on paying for the total losses (both expenses and profit) of the cancelled shows.

-It’s really easy to stray from the briefing document if you’re not careful! We knew the arrested lead singer was divorced, but asking about it made the promoter and his attorney feel they had to come up with a date they hadn’t been provided.

-Call breaks early and often. Not because you need to talk to your partner privately, but because they’ll buy you those critical few minutes to let your analysis of the new facts catch up and sink in, and your partner may have realized something you’d missed. Passing notes isn’t always enough.

-Finally, when preparing I need to take an even further step back, maybe even as far as the level of definitions. It didn’t occur to me until the last 10 minutes of the negotiation that, fundamentally, insurance is supposed to put you back in the same situation you were in before the event happened. I was overly focused on my assumption that the promoter’s actions were a cry for cash or a publicity stunt. I nearly missed a critical way of minimizing the insurance company’s pay-out on the claim.

I’m really looking forward to hearing the results of the round. I wonder: if they give you belts in mediation, would we have made yellow?

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Published in: on November 8, 2012 at 14:09  Comments (1)  
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  1. […] Mediation: Mental Aikido – The creative misdirection of negotiating. […]


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