The KLT needed to avoid failure in mediation and negotiation

| November 2, 2011 | 0 Comments

Just about every sales or business book you read talks about how people ultimately decide to do business with us because:

  1. They Know us
  2. They Like us
  3. They Trust us

Yet, this concept seems to be lost on most of us attorneys. Unfortunately, most law school experiences teach attorneys to fight hard for their clients without teaching us how to best serve our clients’ needs & interests. A lot of our work is based on reason, logic, and persuasion. But, no one will be able to listen to us and fully consider our positions, unless they have an open mind. It makes sense that people are more likely to have an open mind, if they Know, Like, and Trust us. This applies to:

  1. Our clients who will need to consider and follow our advice
  2. Judges and jurors who will hear our arguments
  3. Opposing attorneys and opposing parties with whom we have to negotiate in mediation
  4. Anyone with whom we negotiate

During mediation, we are essentially working to solve a problem, which is impacting our respective clients. We need the other side to work with us, and the mediator, to help the parties put together a deal which allows both sides to leave the mediation with peace of mind that the litigation is over and that they have resolved their dispute.

Ask yourselves: Would you be more or less likely to work toward a solution, if you knew, liked, and trusted the people you were working with? Let’s face it, that’s why we all succeed in positive environments, whether it is at work or in our personal lives.

Unfortunately, some view litigation as war! They inflict as much damage on the other side thinking that the others will lose the taste for battle and surrender at mediation. This, of course, is done at great expense and stress for both sides. To their surprise, the mediation is not initially productive, because the other side won’t surrender.

When I teach new mediators, I often refer to the opening scene for the movie Gladiator to illustrate this point. In that scene, a much smaller, and ill equipped, German army signals to the superior Roman army that they won’t surrender. The field commander to the Roman General (Russell Crow) responds by telling him “People Should Know When They Are Concurred!!” Russell Crow’s character responds by saying: “Would you Quintus? Would I?” Even though the Roman army won this battle, it was at great expense. In fact, I’ve never scene anyone in mediation respond to threats or aggressive postures by surrendering and agreeing to the other side’s demands. But, I have seen many instances during which the parties settle because they work effectively together to solve their problem.

In fact, the reason parties and attorneys have a hard time working with each other, or considering the other side’s strongest points, is because “the know, like, and trust factor” is missing in their interactions. There simply is no credibility, in that situation. The lack of credibility hinders the mediator’s efforts at establishing communications and build consensus toward an agreement.

When this happens in mediation, a good mediator will work hard to build the right combination of know, like & trust between the attorneys and parties, so that they can resolve their case.

Wouldn’t it be better to work on this issue from the time the case is first filed than to face it for the first time during mediation?

Shahrad Milanfar

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Category: Conflict Resolution, Mediate, Mediation, Mediation Blog, Mediation Courses, Mediation Training, Mediator, Negotiation, Settlement, Shahrad Milanfar, Uncategorized

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