PGP Mediation Blog by Phyllis G. Pollack
Attending a mediation requires making difficult decisions. It also requires weighing options. Do we settle? Not settle? Under what conditions? Should we hold out for more favorable terms? Or settle now? And so on.
Well… The New York Times published an article in its Sunday Review Section on September 1, 2018 that may help answer these questions. Entitled “How to Make a Big Decision”, its author Steven Johnson initially notes that we can take a sheet of paper, draw a line down the middle and then on one side list all of the “pros” and on the other side, list all of the “cons” pretty much as Charles Darwin did in July 1838 in deciding whether to get married.
Or… we can generate options. That is, seek out “…a new option beyond the initial choices on the table.” (Id. at 2.) Citing to research performed in the 1980’s by Paul Nutt, the author notes that such research found “…a strong correlation between the number of alternatives deliberated and the ultimate success of the decision itself.” (Id.) That is, where participants adopted only one alternative, they ultimately considered that decision to be a failure 50 percent of the time. (Id.) In sum, it is almost always better to generate as many options as possible rather than simply basing a decision on the “pros” and “cons” of a single option.
Research also indicated that the more diverse the group generating the options and making the decisions, the better. It seems that homogeneous groups “…tend to come to decisions too quickly.” (Id.) They do not question their assumptions … (probably because they are so implicit they do not even realize their existence!)
Other research by Katherine Phillips in 2008 indicates that once the options have been generated, it is best to create three scenarios: one where the option is successful in all respects, one where it is so-so successful and one where it is a failure. Or, as Gary Klein would call it, “premortem” stories; how each option plays out. In doing so, one will find the potential flaws or defects in the option. (Id. at 3.)
And then… if a clear winner has not emerged from your premortem stories, list the values that are important to you, give each of them a numerical weight and then grade the options based upon the weighted values.
The above reminds me of two tricks used in mediations. First and foremost is the “brainstorming” or the generating of options. There is a trick to doing so; turn off that part of your brain that analyzes and critiques, and simply let your imagination run wild. Write down all of your ideas and when done, go back through them and critique them. The most important thing is not to critique as you brainstorm.
The second trick is one from William Ury who suggests that the participants in a mediation start at the end and work backwards by creating the “success story” or victory speech they would like to tell. (That is, the premortem story where the decision results in complete success!) Imagine the story that you would like to tell others about how the mediation ended in success; what the terms of the agreement were, any other issues raised by the parties and the decisions made by the parties. Then, work in the mediation process to arrive at the “success story” using the “terms” as the issues or agenda to be addressed.
So—while attending a mediation may present the challenge of making some tough and difficult decisions, it also presents the opportunity of making them in new and innovative ways.
…. Just something to think about.
Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides. When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.