MEDIATION WITH DIFFICULT INDIVIDUALS

by Daniel R. Merz, Ph.D*

One of the more difficult personalities to face in mediation is when one of the parties exhibits an egotistical, armored, and intimidating personality. These individuals will often display additional character traits such as bullying, grandiosity, vanity, and a lack of empathy. Initially they can be charming and self-confident yet hidden behind this is a cold and calculating attitude. They may resist your best efforts. If you are not careful about how you manage the mediation process, this person will eventually identify you as an enemy to be defeated.

In a highly stressful mediation that involves a difficult personality, you will likely have a better  chance of success if you can avoid certain approaches or reactions. 

Avoid power struggles. You will be up against someone who has spent most of their lifetime getting their way. They use a win-at-all-costs mentality when they encounter resistance to what they want. Related to this self-centered attitude is the use of mental and emotional intimidation. In the face of this you need to know your weak spots. Because these areas of your personhood will be the first place the difficult person will strike. 

Resist the desire to retaliate or defend yourself. Assertive responses by the mediator to intimidation are often experienced as an assault on the person’s sense of specialness, grandiosity, and entitlement. The person using intimidation is probably experiencing you as a threat. See if you can identify and explore his or her feelings behind the defensive behavior. Give the person room to talk about the feelings behind his or her attack. Then you will be in a better place to reassure the individual that you are not there to judge or threaten him or her. In as much detail as you can, clarify your role as a mediator. Ask the person to describe his or her goals for the mediation.

Avoid having high expectations for the outcome of the mediation. Egocentric individuals maintain a laser focus on winning. Do not expect a fully cooperative and open posture from a selfish individual. Do not expect dramatic changes in their interactional style. Keep in mind some of the items that can be surrendered by the opposite party. Sometimes making concessions can be perceived by the difficult party as a willingness to compromise. At the same time, you will need to keep in mind what positions the opposing party is unwilling to give up.

Avoid being seduced into thinking that the self-centered person will be completely successful with their win-at-all-costs approach. They will attempt to make you believe that you are wrong in your observations. They will do their best to cause you to doubt your process and perceptions. 

Regardless of how successful the mediation eventually becomes for both parties, the difficult person will privately believe that he or she has won therefore as a mediator you have lost. In their private world there is only one spot on top of the mountain of victory and success. That spot is reserved for them and them only. 

If you arrive at a stage of mediation where you have been able to avoid having the egocentric person thinking that they control you, the following strategies may help you achieve a decent outcome.

You will have a better chance of keeping the mediation on a positive track if you can make an early identification of a self-centered individual. From the opening, observe their behavior and the words that they use. Some behaviors to note are a high degree of self-confidence, charismatic behavior, high control needs, and efforts to be the center of attention. Initially, the individual may reveal an attitude of disinterest in what the mediator or the other side have to say or think. 

Affirm behavior by the egocentric person that is helpful to the mediation process. Display a sense of humor at appropriate times. Use active listening to keep the process moving. For example: “You feel strongly about this.” “You seemed to have been caught off guard by my comments.”  

If the self-centered individual’s behavior or comments are inappropriate, make a reference to the guidelines that the parties agreed to before beginning the formal mediation process. Remind the participants that crude comments, vailed threats, or attempts at intimidation violate the agreement that both parties signed.

There are occasions where the story behind the feelings can consume a lot of time. A difficult person can easily dominate sharing. A mediator will need to monitor the story so that it does not become harmful to the mediation process. If the story behind the feelings interferes with input from others, find a gap in sharing the story where you can politely interrupt and summarize what the person has said. Summation is a useful technique in getting conversation back on track.

Expect the difficult person to challenge you. Trust the process you are using and do not apologize for it. Make clear references to the guidelines for the mediation. Avoid setting boundaries or referencing guidelines unless you are prepared to enforce them 

In closing, I offer these thoughts. If at any time you feel you are being disrespected or you are taking abuse that is unwarranted, give yourself permission to terminate the session and recognize that you likely will not be successful with the goals of the mediation.  

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*Dr. Merz is a licensed psychotherapist, a marital/family therapist, and a medical educator.

Copyright: Daniel R. Merz, 2020

References 

https://www.mediate.com/articles/puls-scorched-earth.cfm

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The Term Sheet: What Is It and How Do We Use It?

By

Sarah Klahn,* David Belcher,** and Berton Lee Lamb

We often encounter “term sheets” in multi-party negotiations. Recently, we were involved in a negotiation that was going pretty well. The parties had agreed on a few things and seemed to trust one another. During a session, one of the attorneys suggested, “We seem to be making good progress. What would everyone think if we tried to develop a term sheet?” The attorneys in the room brightened up, but the other professionals looked puzzled. The discussion that followed made it clear that we needed to define our terms: What is a term sheet?

A term sheet is a written list of concepts, positions, or outcomes that could be included in a final agreement. It is especially useful in disputes involving many moving parts.  For example, in a dispute involving ground water and surface water users, a term sheet might suggest settlement concepts around the timing or rate of pumping, or the kinds of additional supplies to be provided to senior water users. A term sheet might also include  “the sleeves out of one’s vest,” which is a settlement element important to the other side, but of little value to the party proposing the concept.   

Complex negotiations often involve parties who don’t understand each other’s interests. Term sheets create understanding between parties, which makes negotiations more likely to be successful.  By structuring negotiations around a term sheet, the parties learn what is most important to one another. Moreover, stating settlement terms in concepts, rather than offers, allows parties to discuss ideas without fear of inflaming emotions.  In this respect, term sheets are similar to Straw Man Offers.  But term sheets are distinct from Straw Man Offers because they are written by mutual agreement among the parties, reflect the parties’ actual interests, and parties tend to construct term sheets later in the negotiation process.   

Proposing or agreeing to concepts in term sheets also builds trust between parties. In multi-party negotiations, a term sheet often leads to unexpected alliances on various issues, which can make negotiations more productive than if each individual party attempts to protect only its own interests (reflected in their own proposals and offers).  

In the example we started with, once the parties understood the idea of a term sheet, the discussions took on a more productive tone.  It still took many months of negotiation, but eventually the parties reached an amicable conclusion that satisfied—or dissatisfied—everyone equally.  

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**Sarah Klahn is a water lawyer with Somach Simmons & Dunn who tries cases when she has to and settles them when she can. Her offices are located in Boulder, Colorado. www.somachlaw.com

**David Belcher is an associate with Faegre Drinker Biddle & Reath. He assists clients with various aspects of legal proceedings and trial preparation. His offices are located in Las Angeles, California. https://www.faegredrinker.com

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Final, Contingent, and Straw Man Offers

by

Berton Lee Lamb and Sarah Klahn*

Offers made in a negotiation can come in a variety of “flavors.” The flavor you choose should be selected to maximize development of mutual trust, create open discussion, and search for good results. In an example of how not to open negotiations, one of our colleagues likes to tell the story of a client he was representing who directed him to make what amounted to a final offer at the start of a negotiation. The instructions he received were something like this: “Make X as an offer and don’t budge until they make a counter offer within a specific range.” Our colleague made the offer; the other party did not respond. The negotiation went nowhere because he was not allowed to engage substantively until the other side responded within the narrow confines dictated by the client.

“Make this offer and don’t budge” is an example of a opening with a final offer. A 2019 blog post presents the pitfalls of starting a negotiation with a final offer. One of the major problems with starting with a final offer is that it prevents development of the mutual trust that is so important in negotiation. That is what happened to our colleague.

Although his client eventually gave him latitude to negotiate outside the confines of the final offer, by then he was not trusted. The negotiation failed. Continue reading

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NGA Wraps Negotiation Training in SoCal

By
Berton Lee Lamb, Susan K. Driver, and Robert H. Deibel

We recently returned from our latest round of negotiation training courses in Southern California. During early December, we taught Advancing the Art of Negotiation to personnel from three different federal natural resource management agencies. The focus of this course was on natural resource negotiations with emphasis on Federal Energy Regulatory Commission hydropower license proceedings.

We received numerous comments ranging from “This was an excellent introduction” to “I thoroughly enjoyed the class.” Participants in the course overwhelmingly reported that they would recommend the training to others. Continue reading

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Transition Management, Part 1: The Interpersonal Negotiation

By

Russell C. Sanders, Psy.D.

There comes a time in everyone’s life when a change produces a reaction that calls for a psychological readjustment. Change is a fact. Transitions are important in all phases of our lives. When we face a transition we have an emotional reaction. Then we must make an adjustment to the change that has occurred. How can we manage that adjustment in our closest personal relationships?

Example Transition and How it Was (Mis-)Managed

Jake just got a promotion. In addition to getting more money, the new position presented a challenge to Jake’s level of skill on the job.  He learned very quickly that there was a deficit in his skill-set that was going to require Jake to spend more time learning new programs and how to interpret data that he had never before seen in his work.  Not only was he going to earn more money, he was also going to have to spend more time away from his wife and their young family. His wife, Nora, was going to have to make some adjustments too. After a short time with Jake in his new position, Nora was experiencing resentment about Jake’s absence. He was often away from home and provided less child care. Nora couldn’t help but display her angst toward Jake which created more reaction from him. Continue reading

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Improving Performance Through Feedback

Giving and receiving feedback can be difficult, challenging, maddening, and hard. Our colleague, Dr. Russell Sanders, has recently posted some guidance about how to give feedback in a way that improves performance in the workplace.

One of the lessons Dr. Sanders presents is to use debriefings as a way to provide feedback. Of course, during a debriefing you may receive some feedback too. That is a good thing.

Read Dr. Sanders’ full post.

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Concerned about Communication? Look to Your Phone

by

Kara L. Lamb

Although we might not realize it, like it or not, we are all communicators. Did your neighbor ask you about your job and the latest product your company is producing? Did your mom wonder why your agency made that natural resource management decision? Did that man at church, or the checker at the grocery store ask what you do for work? When you answered those questions, you were a corporate communicator.

But how do you know you’ve said the right thing in response? Relax; it’s easier than you think. Just pretend you’re on the phone and use the same phone etiquette your mom taught you way back when. 

Continue reading

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