Tips – End Game #4 – Lawyers’ Participation in the Writing of Agreement

Normally, we think it is quite important for the mediator to draft the ultimate agreement
between the parties rather than leave that to one of the parties’ lawyers because it minimizes strategic
maneuvering by the drafting lawyer which can lead to a dynamic between the lawyers to gain the upper
hand. So while it is important for the lawyers to be included in reviewing and fine tuning the draft, the
mediator needs to be very active in ensuring that the lawyers’ input even on very technical matters does
not undercut the parties as the ultimate decision makers. So we recommend that parties be included in
all conversations and written correspondence between the mediator and lawyers even regarding what
appears to be technical information.

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End Game Tip #3 – The Mediator’s Stance in the End Game

The End Game is when everything that has happened in the mediation comes together – the chickens come home to roost.  So it is particularly important for the mediator to be able to observe their own dynamic in relationship to the parties and also in relationship to whether the parties reach an agreement and what agreement they reach.  One of the two dangerous poles is when the mediator believes that it is solely the parties’ responsibility to reach a result and recedes too much, resulting in the parties not being able to find their way because they needed more help from the mediator.   The other dangerous pole comes out of a feeling of too much responsibility on the part of the mediator for the parties reaching an agreement, resulting in the mediator overcontrolling the process and content and coercive pressure that may well backfire.  So the challenge then is for the mediator to be able to come in as much as needed, and not more, to help the parties find their own agreement.

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The End Game – Tip #1

We have been specifically studying the end game of the conflict resolution process for a number of years and have come to recognize that there is a lot more to it than many conflict professionals think.  Some people feel that if you can just get the parties to have effective communication with each other, the problem will be solved.  Or if we are able to brainstorm successfully, the solution will emerge.  Yet however far we go in helping the parties work effectively together, it’s important not to obscure the fact that this is a negotiation where there will be tension in the distribution issues no matter how creatively we can expand the pie.  In this series, we will be offering a number of tips which we think you might find useful at the end of a mediation, negotiation, or collaboration.

Tip #1 – Normalize Differences

Parties often have a tendency in the end game to either exaggerate or minimize differences.    When exaggerating the differences, people often feel hopeless.  When minimizing the differences, they will often overlook something that will come back to haunt them later and they end up with an agreement that is unworkable or unrealistic or will ultimately be disappointed to learn that they have no agreement at all.

The challenge for the professionals is to help the parties frame the differences in a way that accurately describes exactly where they are and affirms such differences as a normal part of the process.  Once we have an accurate grasp of the differences, we not only have a better chance for finding a solution, but a better chance of finding a solution that will actually fit the parties.

Sometimes there is collusion between the professionals and the parties, perhaps for different reasons, to skew their view of what remains to be decided or worked through.  This is when identifying the conflict patterns can help us see how those patterns might be interfering with clarity about the problem.  Are differences being minimized in order to avoid conflict?  Are differences being exaggerated or distorted in a competitive pattern?  Understanding the patterns both of the parties and the professionals allows us to approach differences with a fresh viewpoint.   One caveat, however, is that identifying conflict patterns too readily and getting stuck seeing people through that lens, can pigeon-hole them and also impede progress.

Our tip is when people disagree, even if they have made great progress, to recognize that this is inevitable and a sign of progress rather than an indication that they won’t be able to solve the problem.  By feeling that and indicating your confidence to the parties that those differences represent the moment in time where they are, we can help them to recognize they are not stuck but are actually ready to move forward.

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