DISPUTE RESOLUTIONMore than Meets the Eye

Introduction
As business leaders, diplomats, professionals or family men and women, we often find ourselves in the middle of disputes and called upon to mediate a resolution. Having a road-map to navigate these delicate situations will add enormous value to your compendium of competencies!

In dispute resolution there is always the excitement of realizing the non-obvious, and the adventure of discovering the unknown!

Parties entering into mediation will typically assert their dispute in terms of their initial presenting positions and perceptions. It may take the form of: “They brazenly breached the contract” or “As a trustee, she exploited her fiduciary responsibilities and stole from the family trust” or “He deliberately misled me with wrong information to get me to sign the contract”

In these particular examples, three characteristics stand out. Firstly, there is the attribution of negative intent as in: “brazenly”; “exploited”; and “deliberately”. Secondly there is the declaration of judgement as in: “breached”; “stole” and “misled”. Thirdly, they have portrayed their counterparts as despicable villains. These are typical in initial presenting positions and perceptions in any mediation.

The excitement of realizing the non-obvious and the adventure of discovering the unknown lies in the mediator’s capacity to dig below the initial presenting positions, and to uncover the true and authentic issues that are really at the core of the dispute.

In this column I will share some tools and techniques towards that end.

Don't Fall into the Assertion Trap
When presented with assertions, it is easy to be persuaded and influenced by them. The danger is that these beliefs then shape our approach to the mediation and our potentially negative reaction to one or more parties to the dispute. We lose our objectivity and neutrality, and in turn lose trust of the parties in us as the mediator, as well as in the process.

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DE-ESCALATING THE ESCALATED CONFLICT - While We Waited for the Iranian Shoe of Retaliation to Drop

Introduction
Recent news of the assassination of a top-level Iranian leader by U.S forces sent shock waves throughout the Middle-East and beyond. If Iran chose not to retaliate, she risked looking weak; being perceived as not avenging the blood of her leaders and martyrs; being seen as allowing herself to be intimidated and bullied; and potentially setting a terrible precedent of not defending her sovereignty and citizens, thereby exposing her flanks to further attacks. For these reasons, retaliation was inevitable.

As Iran and the U.S descended into a potential cycle of attacks and retaliations, a pressing question on the minds of many was: How can we de-escalate an already severely escalated conflict so that we might avoid global destabilization and avert a cataclysmic war?

This question is not only pertinent to international relations, but personal, business and professional relations also: How do we de-escalate an already escalated conflict?

Regulate Emotions Through a "Cooling-off" Period
In the heat of conflict, parties experience abject anger. They feel grossly disrespected and deeply violated. They believe their honor, dignity and pride has been viciously attacked. At this highly emotional and volatile stage of conflict, actions and reactions are likely to be destructively impulsive and often irrational.

Before conflict can be resolved it first needs to be contained and managed so as to mitigate hasty decisions and hazardous behavior. For conflict to be managed and for rational thinking to take its rightful place, it is imperative to establish an initial “cooling-off” period. During this stage, parties are encouraged to exercise restraint and suspend all impulsive actions of attack or retaliation that could further exacerbate the situation.

To successfully implement an effective “cooling-off” period, a mutually trusted and respected neutral mediator who yields a degree of influence, should persuade all parties to suspend any further acts of aggression while tensions are eased to a more manageable level.

In the current U.S. - Iran crisis for example, perhaps someone like President Putin, who possesses power of influence over Iran, might have served as that neutral and encouraged them to withhold any immediate reckless retaliation. (It turned out to be Switzerland. See Wall Street Journal report).

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'TIS THE SEASON - How to Manage Family Conflict

Introduction
With the Holidays fast approaching, festive dinners and family reunions are very much on our minds. The merry partying however is often accompanied by a degree of pressure, due in part, to the potentially volatile human dynamics and family interactions.

With the very different personalities and vastly different opinions and beliefs, we wonder with dread, whether Uncle Jack will opine about his strong political views or if Aunt Mavis might start to pontificate about her religious dogma. These sorts of differences and dynamics mean that family gatherings can quickly become the perfect storm for clashes, conflicts and flare-ups.

However, with the danger also comes great opportunity! An opportunity, to practice and refine our skills so as to manage these potentially volatile conversations and emotionally charged situations effectively, constructively, with grace and with poise, rather than to flee from them.

Below are some strategies to help guide you.

Show Them You Are Taking Them Seriously
Often, when we hear an opinion that we strongly disagree with, our reaction is to viciously attack the “culprit” and then continue to self-righteously defend our own opinion as though we are the sole arbiters of truth. This of course only fuels the conflagration.

Always remember, other people’s views, no matter how opinionated, will never define you, but how you react to those views will. So rather than to strongly and immediately react to their opinions, suspend your reaction and judgement and spend some time really listening to them. Furthermore, demonstrate that you are indeed listening by paraphrasing and reflecting back to them what you have heard.

As an example, suppose that Uncle Jack is enthusiastically engaged in a monologue about how government regulation is necessary to protect consumers, and about how government benefit programs are always a good thing to protect those who are struggling. No matter how strongly you might disagree, resist the urge to react and attack, and instead show him that you are listening and taking him seriously.

You have now demonstrated that you have listened to him, understood him and are taking him seriously. (Note that this does not mean that you agree with him. Understanding someone is not tantamount to agreeing to them at all. As such, demonstrating an understanding is a valuable concession which costs you nothing).

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The Risks of Poor Negotiation Practices

Introduction
Negotiation is more than just a process of getting our needs met. How we negotiate can potentially determine our social, business, diplomatic and international outcomes, reputations and relationships.

It follows that poor negotiation practices such as ineffective communication patterns; inefficient bargaining; destructive tricks and tactics; nonconstructive processes that lack purpose; scant and limited information development; and adversarial posturing and positioning are extremely costly in terms of value-optimization, reputations and relationships in addition to lost opportunities.

Let us look at two quite recent landmark negotiation failures that cost the parties and stakeholders enormously due to poor negotiation practices, and what might they have done differently to improve the outcomes

Two Examples
New York State vs. New York Teacher’s Union The Negotiation Failure:
In 2010, New York State required its school districts to change their teacher evaluation systems to more effective ones. The school districts and their associated unions were tasked with unveiling their new systems by January 2013. New York City stood to gain millions in aid and grants if this deadline was met from which the school districts and teachers unions could ultimately benefit. The school districts and the New York United Federation of Teachers became involved in an intensely adversarial negotiation until on January 17th 2013, a catastrophic deadlock was announced and the governor of New York imposed a teacher’s evaluation system that neither party was happy with. The aid and grants never materialized.

The Poor Negotiation Practices:
There is historically very bad blood, enormous suspicion, negative perceptions and lack of trust between management and unions. To try to continue substantive negotiations on such a negative platform is doomed to fail. These negotiations were no different. The teachers unions and school districts saw themselves at odds and in competition with one another and were never able to bridge their differences to their mutual benefit. The poor negotiation practice was trying to negotiate the substantive issues without addressing the seriously eroded relationship between them.

A Better Approach:
Before effective negotiation can occur there should have been a productive exchange about each side’s perceptions of the other, their fears and concerns. This dialogue needed to happen in an environment of respect with each side deeply listening to each other and demonstrating immaculate understanding of the other (even if they did not agree). They should also have jointly explored the risks of not reaching agreement. Only then, might they have worked collaboratively to find joint solution to their conflicting needs on the issue of the new teachers’ evaluation system.

Time Warner vs. CBS The Negotiation Failure:
In 2013, Times Warner engaged in negotiations with CBS over licensing fees being charged by CBS to air CBS programs, particularly sports coverage to which CBS owned rights. Times Warner felt they were paying too much and wished to reduce them.

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The Greenland Purchase That Wasn't (or The Artlessness of the Deal)

Introduction
Last month, President Trump made a seemingly impulsive decision to buy Greenland. He put out word of his intention which was met with a definitive, unequivocal and final message from Queen and Country of Denmark that “Greenland is open for business, not for sale!” That brief two-way volley was the extent and the death of those negotiations. The President’s approach lacked grace, finesse, and dare I say skill, and brought to mind images of a “bull in a china shop”.

Negotiation is seldom a quick event, but rather a journey with some twists and turns until the final destination is reached. A solid negotiation structure needs to be carefully constructed before a productive and optimal outcome can be ensured.

How then, might have these negotiations been approached differently in a way that would better have accomplished the interests of the United States?

Why Greenland
In early preparation for these negotiations, the first question that needed to be asked, understood and articulated is: “What specifically are the United States' interests in Greenland?”

Greenland lies within the Arctic Circle and is situated where the Atlantic Ocean and Arctic Sea meet. Due to climate changes and massive ice melts, new shipping routes have opened up between the Bering Straits and the Atlantic Ocean through the Arctic Sea. This gives both China and Russia quick and unfettered access between Eastern and Western hemispheres, of which both are taking advantage militarily and economically. Although the U.S does have the Thule air force base within one thousand miles of the region, a U.S. interest might be to have a stronger presence in the area where east meets west to help balance Chinese and Russian footprints and influences there.

A second important interest of the U.S in Greenland might be its rich supply of rare earth elements such as terbium, dysprosium, neodymium, praseodymium and natural uranium. These rare earth elements are widely used in technology, military, electric cars and wind turbines.

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