Getting over the Bump in the Road

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At a certain point in almost every negotiation and every mediation, the parties get stuck; they hit impasse or a bump in the road. Recently, I attended a training with Professor Carrie Menkel- Meadow. In one of her handouts, she discussed ways to creatively solve the issues. They include:

1. Use of analogy (direct, fanciful) and use of metaphor;

2. Aggregation/disaggregation/re-combination of elements of a problem;

3. Transfer (cross-disciplinary use of concepts, ideas, information, solutions from other fields);

4. Reversal (either extreme polarization or gradual modification of ideas)-which is done both in cognitive and in personal forms (as in role-reversal efforts to understand the point of view of others in the situation);

5. Extension-extending a line of reasoning, principle or solution beyond its original purpose;

6. Challenging assumptions-re-examining givens or problem statements and unpacking cliched, conventional solutions or stereotypes;

7. Narrative-fully describing facts and problems to elaborate on complexity, and producing alternative endings;

8. Backward/forward thinking-focusing on how we came to a particular situation (reasons why, causes) in order to figure out how we get to desired end-state(s);

9. Design-plan for desired future end-state, structures, means;

10. Random stimulation/brainstorming-separation of idea generation, randomly generated, from judgment and evaluation. As the field of group facilitation has developed, there are newer, more structured variations on these themes, such as Nominal Group Technique (a process of generating and then voting on solutions);

11. Visualization-use of different competencies and modes of thinking and processing information; this includes efforts at altered states (e.g., retreats and meditations);

12. Entry points-explicit reframing of problems and solutions from different perspectives, or in Gardner’s terms, different intelligences.

(Menkel-Meadow, Carrie, “Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education? 6 Harv. Negot. L. Rev. 97-144, 122-123) (2001) and http://scholarship.law.georgetown.edu/facpub/177/ ) (viewcontent )

I find the first suggestion –use of analogy/metaphor– to be useful; I often tell stories to make a point. People relate to stories, because, indeed, everyone has a story to tell.

With respect to the second suggestion –refashioning the elements–, it is often useful to break the matter down into its component parts or issues. Indeed, in most mediation trainings, one is told to set an “agenda” or create a list of issues to be addressed one by one. For example, in a marital dissolution, one simply does not talk about dissolving the marriage per se but rather breaks it down into the issues of property settlement, spousal/ child support, and if there are kids- custody and visitation.

The third concept –transfer– I often use, in effect coaching the parties by explaining a little negotiation theory, a little psychology including cognitive biases, suggesting solutions used in other mediations (keeping the pertinent information confidential of course) and suggesting other information I have learned along the way as a mediator.

The next suggestion – reversal– is extremely valuable and fundamental to any problem solving. It implores the parties to look at the matter from the viewpoint of the other party. Ask them to stand in the shoes– and at an extreme actually exchange places at the table and take the role– of the other party to gain a better perspective of the situation as a whole. There is always more than one side to any issue and understanding the other party’s viewpoint goes a long way towards reaching a resolution.

With parties that are proving to be difficult, “extension” is a useful concept. Take their train of thought to its logical conclusion or to different consequences to demonstrate why the idea may not be such a good one. Alternatively, as suggested by the author, take a well know solution and apply it differently- put a new twist on it. That is, REALLY think out of the box!

The next three –challenging assumptions, narrative, and backwards/forward thinking — are also fundamental to any successful resolution. Each party comes to a dispute making certain assumptions- some of them unconscious. We meet someone for the first time, and within a nanosecond, make many unconscious assumptions about them just by their appearance, demeanor and dress. Challenge those assumptions! More times than not- you will find your assumptions to be completely wrong. And by challenging them, you will not proceed down the wrong path getting more deeply mired in the dispute. This is where the narrative comes in- ask questions and listen to the story. Learn the facts and issues. And think about alternative endings. A favorite question of mine is to ask a party if she had a magic wand, or could write the ending of the story- how would the story end? And the follow up question– what is restraining the party from attaining that ending? What is keeping them from having that “they lived happily ever after ending”? To say the least, the questions are thought provoking and the answers are interesting. And, in close connection, one must ask, how did the parties get to where they are at present; how did the situation get to where it is now?

And this leads to the next suggestion—design– now that we know how a party would like the story to end, what the “living happily ever after” looks like” – how do the parties design a solution that achieves that result? What would be the terms of a resolution or settlement that meets that goal?

Sometimes brainstorming is necessary; simply generating ideas without critiquing. Throwing out ideas one after the other, writing them all down as they are thrown out, and then and only then, after all of the ideas have been created, going back and critiquing. It is imperative that the ideas not be judged as they are being thrown out as science has shown that brainstorming and critiquing stem from two different parts of the brain, and using the latter thwarts the former.

The last two suggestions– visualization and entry points– are also helpful. With respect to visualization, another favorite question of mediators is to ask a party to visualize the future; to imagine how she will feel six months from now, a year from now, five years from now, et cetera if this matter settles today and is no longer a worry. Or, alternatively, how she would feel in the same time frames if the matter does not settle today so that the matter will be a continual worry? Having the party think in those terms often produces enlightenment.

The last point– entry points or reframing– is another important tool to resolving disputes. Reframing an issue puts it into a different perspective and when phrased differently, often gives the parties pause. (“Gee, I never thought of it in those terms!”). It also shows a party that she has been listened to and understood. Much has been written on the importance of having parties tell their stories, and realizing that they have been heard and acknowledged. Where this does not happen, the dispute is quite difficult to settle.

So, the next time you hit a bump in the road, try one or more of Professor Menkel-Meadow’s suggestions; they may just get you over that bump and into a resolution.

… Just something to think about.

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By | 2017-05-13T07:45:20+00:00 June 12th, 2015|Negotiation Strategy, Research|0 Comments

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1300 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.