Everyone says you should never negotiate with terrorists.  But everyone does it when there is no other feasible or reasonable alternative.  The argument against such negotiation is that it will only encourage more terrorism.  But history does not support this theory.  No more Israeli soldiers have been captured, nor has there been any attempt to do so since Shalit’s release.  The more time that goes by, the harder it will be to blame any such incident on this negotiation.  The fact is that when terrorists negotiate, they may still be terrorists, but they are not engaging in terrorism while they do so. 

In a civil society, we never negotiate or mediate with parties whose members or representatives have killed members of the opposing party’s group.  And usually there is a deadline for the parties to negotiate a settlement or else a resolution will be imposed on them by some outside entity, like a court.  In the Middle East today, there is no such Sword of Damocles, so there is no motive for either side to negotiate or change positions.  Nonetheless, negotiations do go on.  Small issues constantly need to be resolved, regarding water, electricity, transportation and tourism.  Name-calling (terrorists, occupiers) never achieves anything.  Who knows.  One day, maybe the small negotiations will turn toward larger issues?

What does this have to do with dispute resolution? I have written about conflict in sports before, (at least twice). It can be a good model for how we should handle conflict in the workplace and society in general. During the off season, we saw the controversy about Ryan Braun’s positive blood test for steroids. It was finally resolved through arbitration. Agree with the decision or not, it has the benefits of finality and closure. And it showed the importance of having some kind of relatively quick decision making procedure to resolve the dispute.

Conflict can be constructive. Even if we don’t get everything we want or hope for, engaging in a civilized discussion or game with your opponent ultimately puts the dispute behind you and lets you get on with your life. If we don’t win today’s game, there are 161 more to go. And then there is next season. In the meantime, enjoy the game and the opportunity for growth that civilized conflict provides. Baseball is one of the most civilized sports. No slap shots, slam dunks, sacks or kicks. Just some base hits and the opportunity to make it “home.” So enjoy the game and play ball!

Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.

The first comes from FINRA’s current newsletter. (You don’t have to be FINRA arbitrator or mediator to subscribe.) The article contains nine tips for a successful mediation. One of those tips is to “be prepared,” but following all of the other tips is the best preparation.

The other article comes from the ABA and discusses 10 things lawyers love and hate about mediators. According to the author, one of the things lawyers love is when mediators prepare beforehand. Seems obvious, but again the other items listed in the article provide fertile ground for preparation by a mediator.

If you are a mediator and have any favorite lists that help you prepare for a mediation session, please leave a comment and let me and my readers know what they are.

Of course, many business disputes, especially between partners, can be avoided with carefully worded contracts, partnership agreements or corporate documents. Unfortunately, in the recent cases I have mediated, the contracts and other documents were not carefully worded. In some instances, they were non-existent or, at best, inartfully drafted. Maybe the parties did not feel the need for written agreements, or maybe they were too cheap to pay attorneys to draft them. But I suspect that well-drafted legal documents would have come in handy when it came time to end the relationships or resolve disputes. In the absence of such documentation, the litigation became a he said/she said affair. And the mediation boiled down to “give me what I want” or “accept what I am offering” or else I’ll file for bankruptcy.

A transactional or business attorney’s best marketing tool is to tell a client to “pay me now or pay the litigators later.” In the cases I have seen, parties who scrimped on business planning and documentation have gotten what they paid for. Trouble.

The discussion soon focused on problems that arise at school that can turn children off to education, like bad teachers and bullies. What is a parent to do? How involved do they need to be? What lesson should parents give children to prepare them for obstacles at school? The answer was a pleasant surprise to me. In an age where some parents are too uninvolved and others are over-involved (so-called “helicopter parents” who hover over their children), I expected to hear something about finding the middle ground or happy medium. Instead, what I heard was elegantly simple: “Work it out!” The participants in this discussion did not urge parents to monitor every problem, call school to complain about bad teachers or bullies, or help their children out of every difficulty. Rather, they urged parents to tell their children that problems and conflicts will occur, and children must be prepared to work it out and resolve the problems themselves. Of course, this requires children to know how to stand up for themselves and be their own advocates, without resorting to violence. This is something both teachers and parents should help children do. It is a skill that will help them throughout their lives. Sometimes, they will be able to do it themselves and other times they will not. But if they try, they will at least learn when they need to seek help and who to seek it from.

This discussion should be required material in business schools. I have seen people turn their business problems over to lawyers and tell them to “handle it,” when the parties themselves could have worked it out more efficiently if they knew how to communicate and advocate for themselves effectively. Fortunately, many attorneys are skilled negotiators and advocates in and out of the courtroom. But it certainly makes the attorney’s job easier if the client is also involved in and adept at the process. That is a skill that can and should be learned in school. When parties in dispute cannot get the other side’s attention or have trouble focusing on the issues, that is when attorneys or mediators need to be called in. And then it is time for everyone to go back to school and find a way to work it out.

In my mediation training, we were taught to try to restate participants’ concerns in other words, showing both concern and understanding. However, even when all the parties are speaking the same language, this technique runs the risk of misstating or oversimplifying a participant’s concerns or interests. This does not mean that a mediator should not try to restate the concerns and interests. Rather, the mediator must understand that the opposing sides in a dispute frequently have different understandings of the facts based upon their own narrative. Even when speaking the same language, something can be lost in translation. As George Bernard Shaw noted, “England and America are two countries separated by a common language.” Similarly, business partners, competitors, buyers and sellers, and even spouses can speak in jargon or terms that are unfamiliar to others. Sometimes, this is what causes the dispute or conflict. Finding common ground requires the parties to be speaking the same language and understanding each other’s terminology.

In one recent mediation, the participants were arguing about whether a computerized system was defective. One party referred to a pass code. The other said there was no such thing, but there was a registration key. Ultimately, it appeared they were talking about the same thing but they thought it was different. Helping them realize what the other was talking about, even in the same language, became my most difficult challenge. Without a mediator, they might never have reached an agreement. I’m not bilingual, but it seems I can help translate English to English.

Meanwhile, our nation’s capital seems to be filled with those who are certain that they know what the future holds and what is best for the country. The problem is that at least two groups are so certain, and their proposed policies are mutually exclusive. One side believes we can reduce our deficit (if not balance the budget) strictly by making cuts in expenditures. The other believes that both expenditure cuts and revenue increases are necessary. No one believes that Congress and the President will risk ruining the nation’s credit rating by defaulting on the national debt, but they are playing a dangerous game of chicken. Someone has to blink.

In litigation, many cases settle on the courthouse steps, with a jury in the box, ready to decide the case. These last minute settlements frequently occur because one side finally realizes a flaw in its case or a mistake in assessing the risk of an adverse decision. Settlements made under such circumstances are rarely favorable to the panicked party. Such outcomes are bad enough when they involve private parties involved in civil litigation. They can be catastrophic when the nation’s finances and economy are at stake.

Unfortunately, no independent, impartial mediator appears to be ready and able to save our elected leaders from themselves. The President cannot be mediator-in-chief because he, too, is a politician with a dog in the fight. We can only hope that the impending debt ceiling deadline provides the necessary reality check that brings the warring factions to their senses and produces a solution we can all live with.

I don’t know if the jurors made the right decision in this case, but they certainly had a better view of the evidence and witnesses than I did. They were clearly a jury of Casey’s peers. They were also peers of the police and prosecutors. Some of them were parents of children like Caylee. They represented their community and performed their duty well. So I am not going to second-guess their decision.

The Sixth and Seventh Amendments to the U.S. Constitution preserve our right to trial by jury. While jurors’ decisions may be unpredictable, that is precisely what gives us good reason to search for our own collaborative and consensual solutions to disputes. Our founding fathers sought independence, not predictability. I hope that is what everyone was celebrating this past 4th of July weekend. I know I was.

This topic is important in understanding how people make decisions and why disputes and conflict arise. Perhaps this is one of the reasons many people perceive an increase polarization and hostility in recent public discourse. When the information you receive on the internet is tailored to complement your previous disposition, you are less able and likely to see the other side’s point of view.

In dispute and conflict resolution, it is sometimes necessary to pop a person’s “information cocoon” to help him or her understand the other side’s position and the risks of continuing the conflict. Mediators often must test a participant’s underlying presumptions by engaging in “reality checks.” Another way to think about this process is to pop the information cocoon. Where are the parties to the dispute getting their information? Are they familiar with the other side’s sources? If not, it may be worth their time to take a look. 

Good litigators must know the other side’s case as well as their own. Good negotiators must be similarly prepared. If internet search engines and social media are making that more difficult, we must be aware of it and be prepared to deal with it. Removing the filters from our search engines would be a good start toward diversifying our information sources. Mediators should be prepared to point out this problem to parties in dispute in order to help pop their information cocoons.