Lessons learned from positive difficult conversations - effective mediation advocacy

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Richard Hurford
Richard Hurford Dispute Resolution Services, P.C

With increasing frequency (oftentimes 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 in an effective manner. 

Celeste Headlee, a highly accomplished radio talk show host, recently published a book:  We Need To Talk:  How to Have Conversations that Matter. Although this work focuses on Ms. Headlee’s experiences as an effective interviewer during a nationally broadcast radio program, the book provides a number of thoughts that may serve the reader well when entering into a mediation or other important negotiation. Her suggestions include:

• Be curious and have a genuine interest in learning even from those with whom you disagree.

• Resist the “halo and horns effect.” The purpose of listening is to understand—not to determine immediately whether the speaker is right or wrong. Resist the immediate impulse to judge.

• Be respectful and avoid frustration. Persevere in having the difficult conversation and avoid interrupting or changing the subject.

• End well. Keep the door open to future difficult discussions.

During two recent mediations, one involving a highly emotionally charged medical malpractice dispute and the other a very acrimonious employment claim, well known and aggressive defense trial attorneys engaged in extremely effective mediation planning and advocacy that was a pleasure to behold.

The independent pre-mediation discussions with all counsel involved in these two cases underscored to everyone that the path to a resolution involved the ability to have a number of very difficult discussions in emotionally fragile settings—in addition to significant factual and legal disputes both plaintiffs believed the defendants had no interest in proceeding with good faith settlement discussions.

To set the stage for these difficult mediations, both defense attorneys opted to discuss potential mediation processes that afforded the defense attorneys and their clients with the opportunity to make a few brief, preliminary remarks to opposing counsel and their clients.  The common objectives of both defense counsel were to underscore their good faith desire to pursue a resolution and set the emotional stage for further anticipated difficult discussions.

The preliminary statements independently developed by defense counsel did not involve an argumentative factual or legal summary of the case, the potential defenses to the claims, an attack on the plaintiffs, a rebuttal of the damages alleged, or require plaintiff to make any reciprocal opening statements. Rather, both defense attorneys and their clients merely wanted the opportunity to provide the plaintiffs with various assurances concerning their conduct and objectives during the mediation process.  After obtaining the agreement of plaintiffs’ counsel to the proposed mediation process, both mediations commenced with each defense counsel providing the plaintiffs and their counsel with certain assurances that encompassed many of Ms. Headlee’s recommendations on how to have meaningful difficult conversations.

Although the preliminary statements differed in some respects, the themes were similar and included the following assurances provided to the plaintiffs and their attorneys: 

• A genuine statement of appreciation to the plaintiffs and their counsel for their willingness to take the time and effort to participate in the mediation, coupled with the assurance the defendants were proponents of the mediation process, took this mediation very seriously, and would similarly work very hard to determine if the matters could be resolved. 

• Assurances were provided there was no interest in personally attacking the plaintiff.  The goal was to find as many areas of agreement as possible and narrow the areas of disagreement until a resolution could be achieved. 

• The personal representatives of the defendants independently acknowledged the loss and suffering each plaintiff no doubt experienced.

• Defense counsel made a commitment to listen carefully to the plaintiffs and earnestly evaluate and re-evaluate the case in light of all information learned during the course of the mediation. 

• As there was a genuine desire to resolve the case there was also an assurance of looking for ways to be creative and look for options that might be beneficial to a resolution.   

• A statement was made that there was a commitment to honesty. The goal was not to convince or change the minds of the plaintiffs but to simply and honestly let the plaintiffs know those facts and evidence that will be presented to the jury.  

While the nuances of the mediation process differed significantly in each case, these preliminary statements were very helpful and held the attention of the plaintiffs and paved the road for those difficult conversations that followed.

It also calls to mind the likely outcome of simply telling a party they are wrong and not truly listening or attempting to understand the position of the other side. As the saying goes:  “If you wish to make a man your enemy, tell him simply—‘You are wrong.’ This method works every time.”  Such an approach is not necessarily calculated to lead to productive or effective difficult discussions or negotiations. 

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Richard Hurford is the president of Richard Hurford Dispute Resolution Services, P.C and a principal in Strongbridge Negotiation Strategists, P.C.  He is the past chair of the ADR Section of the Michigan State Bar, the Macomb and Oakland County ADR Committees, current co-chair of the ADR Section of the Federal Bar Association, and past president of the Southeast Chapter of ACR.  He is co-author of the nationally recognized A Taxonomy of ADR (2015) and a contributor to the Supreme Court Administrative Office’s publication the Michigan Judges Guide to ADR Practice and Procedure (2016). He is a professional with Professional Resolution Experts of Michigan (PREMi), a Distinguished Fellow in the International Academy of Mediators (by invitation only), a member of the National Association of Distinguished Neutrals (by invitation only) and a member of AAJ, DRI, MDTC and ACR.  Visit his websiteat hurfordresolution.com.  
 

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