Archive for the ‘contract negotiation’ Category


January 4, 2010


Feelings and emotions are an integral part of any mediation or negotiation. When I give talks or training on mediations involving money disputes, such as credit-card debt cases (read the Newsweek article here), people think it is cut and dry- go back and forth on offers and either there is a deal or no deal.
Yes, maybe some are like that but every mediation, even the ones I have handled which were settled faster than the length of my opening “welcome to mediation” statement, included expressing emotions and feelings. People want to be able to speak, and want to know they have been heard. This is where a mediator really helps with the process. Acknowledging statements by summarizing, validating and reframing are some of the best tools a mediator can have in their toolbox.
Douglas Stone, Bruce Patton and Sheila Heen wrote the book Difficult Conversations in which Chapter 5 is dedicated to feelings. This chapter explains how important feelings are, how to acknowledge the other person’s feelings and how equally important to express yours.
Some quick tidbits from the chapter:
Feelings are often at the heart of difficult conversations
Allowing feelings to be surfaced increases the chance for the mediation/negotiation to go well.
Unexpressed feelings can leak into the conversation. No one likes leaks, right? Trying to breeze through the mediation and ignoring the feelings present can have them leak, or even worse, burst, and the worst moment. How might they leak out? Through your tone, body language, facial expressions, and silence are all examples.

Unexpressed feelings make it difficult to listen. I am a big advocate of the saying seek to understand before seeking to be understood. It does not mean do not look to be understood, it’s important to realize that is second part of the statement. Holding your feelings in will do no good if you are the one involved in the negotiation. It will keep building up and cloud the mind diminishing your ability to listen effectively.

Unexpressed feelings take a toll on our self-esteem and relationships. Keeping your feelings out of the conversation keeps an important part of you out it.

Learn where your feelings hide. Feelings can be good at hiding and disguising themselves; be a good detective and find them!
Explore your emotional footprint. How were feelings expressed by you and those around you growing up? Were they welcomed and openly shared?
Accept that feelings are normal and natural. Yes, you are odd if you haven’t felt feelings… ever!
Recognize that good people can have bad feelings. I found this one particularly interesting as I often say people are not good or bad but it is their actions which are good and bad. They describe it as, for example, the assumption that good people should not get angry, fail, or a burden.
Learn that you feelings are important as theirs. Some of us can’t see our own feelings because we have learned somewhere along the way that other people’s feelings are more important than ours (page 93).

As mediators, we keep our feelings out of the negotiation between the parties. I find it very important to remind myself, and others, when we are not mediating and are involved in our own difficult conversations or negotiations that it is okay for feelings to be expressed.

My 3 steps in regards to feelings:
1) Recognize feelings. If it’s anger, tell yourself you are angry. Don’t say it’s okay if it isn’t.

2) Understand feelings. Okay, I am angry. Now connect the reasons or contributing factors leading to your anger.
3) Express feelings. Important factors in expressing your feelings in a healthy way include timing and realizing the other person might not know you feel this way and/or might see the situation differently.
Don’t let hidden feelings block other emotions. Page 96 lists a chart titled A Landscape of Sometimes Hard-to-find-Feelings. For example under love is affectionate, caring, close and proud while under gratitude is appreciative, thankful, relieved, and admiring.

Find the feelings lurking under attributions, judgments and accusations. These three can led to misunderstandings as well as defensive actions by both sides.

We translate our feelings into: Judgments, Attributions, Characterizations and Problem-Solving (page98).
Don’t use feelings as Gospel (or Sutra!): Negotiate with them. Remember, feelings, no matter how strong are impermanent.
Don’t vent, describe feelings carefully. Frame feelings back into the problem, express the full spectrum of your feelings, and don’t evaluate- just share.
How do you share- express your feelings without judging, don’t monopolize (both sides can have strong feelings at the same time!), and start with, “I feel…”
Sometimes feelings are all that matter. Yes, I have mediated cases that seemed to drag on and on, heels were being dug in deeper and deeper and then finally one side acknowledged the other side was hurt by the situation and apologized for their feelings being hurt (apologies are for another day!). The person said they were happy now and that was all they wanted- for the other party to know and acknowledge they were hurt.
This is meant to be just a quick introduction to how feelings are ever present and are by no means intended to be an all inclusive writing on the topic. If you are interested in learning more about these points and difficult conversations in general, I recommend you purchase the book Difficult Conversations. It is available [here] at Amazon and many other locations.

Should Age Matter?

June 5, 2009

Explosion of Comments!
(updated 12:48pm with more comments)

Is it ok to ask for age specific facilitators? Over at the wonderful NY-DRC listserv hosted on the CUNY John Jay servers (see below on how to join the listserv), there has been many comments on the following request:

Hi all,

We’re looking for a few good facilitators for an event on June 18, 7 pm – 10 pm, at the JCC in Manhattan. Stipends of $30 are available for facilitators, $50 for out-of-towners, and the evening’s activities include an ending food and alcohol reception.

We need:

¡P Up to 15 experienced dialogue facilitators aged 21-35
¡P Comfortable with Jewish-Jewish dialogue on controversial topics
¡P Able to read facilitator instructions and dialogue model ahead of time
¡P Able to participate in a day-of facilitator orientation at 6 pm

The New Israel Fund, Makom/Jewish Agency, Encounter and 15 other cosponsors are producing “Love, Hate and the Jewish State: A Conversation on Social Justice and Israel.” This is a 90-minute dialogue between 100 Jews aged 21-35 on the topics of social justice and Israel. Some information is below, more at

To volunteer, please contact Ben Murane at the New Israel Fund,
Many thanks,

The Problem
Too often, Israel and social justice have represented unconnected, sometimes polar, options for involvement and activism for young Jews. American Jewish Israel activists are sometimes seen as parochial and particularistic and perhaps supportive of Israeli government policies that don’t mesh well with social justice concerns. American Jewish social justice activists are seen, often by themselves, as unwelcome within established Jewish settings and unconcerned about anti-Semitism and Israel.

Moreover, there is perceived dissonance between the idea and reality of a Jewish State and a commitment to liberalism and democracy. In short, there are many elephants in the room – unspoken and controversial topics that keep these two worlds apart.

Addressing the Challenge
Makom at the Jewish Agency for Israel, in partnership with the New Israel Fund, Encounter, and other co-sponsors, is interested in opening these questions up and pursuing a dialogue between the Israel and social justice worlds. Through a “town hall assembly” in New York, we intend to provide a truly open forum in which an honest, probing and meaningful conversation can take place.

Our desired outcomes are dialogue and conversation between participants concerning the complexities of the relationship between social justice and Israel. Among other goals, we hope to provide a portrait of the multi-vocal views of this age cohort to influence policy makers in the future.

The event will take place on Thursday June 18th, 2009 at the Jewish Community Center in Manhattan, and will bring together 100 young Jews (21-40) from the Jewish social justice communities. The central activity will be small group dialogues facilitated by professional facilitators, focusing on:

¡P What are the impediments to a relationship with social justice and Israel?
¡P To what degree are the two agendas in fact oppositional or not?
¡P Are there possibilities for integration and/or exchange between the two agendas?
— — ENCOUNTER HAS MOVED! OUR NEW ADDRESS AND FAX ARE:(our phone number, email, and website have remained the same)

There have been many comments, some have been posted below (names have been removed):

This offer of employment limited to facilitators aged 21-35 smacks of age discrimination, which we should not support.

I think we might want to consider this reaction very carefully.Peer mediation programs that are used in a variety of settings are based on the idea that it is benficial to have mediators who are of the same group as those in conflict. One part of group identification is often age related. Additionally, in community mediation, my experience is that it’s appropriate and beneficial to utilize mediators that represent the community that they serve in all it’s diversity. That may mean, that at different times, a program might select mediators from a particular group. There are undoubtedly other examples of this.We can certainly choose to look at this from a legal perspective but as a long time ADR practitioner I would suggest that it’s more appropriate to put this within the frame of our collaborative work.

It’s saddening that Ms. [name removed] sees the only alternative perspective as the legal one. I think she misses (or maybe dismisses) the point.

There is actually some research that is on point e.g. “Does It Matter if My Mediator Looks Like Me? The Impact of Racially matching Participants and Mediators” by Louri Charkoudian and Ellen Wayne in the Spring 2009 Dispute Resolution Magazine published by ABA-ADR. The results were complex but showed no disadvantage to parties that did not match the race of the mediator except when the mediator matched the other party. That issue of DR Mag focuses on race in DR and is co-edited by our own Maria Volpe and Marvin Johnson.

Another extensive mediator-matching study with more variables is currently in progress sponsored by Stanford University with data being collected with the assistance of the NYS OCA and Community Dispute Resolution Centers including Safe Horizon Mediation.

After the data are collected and analyzed, one of the local participants might present the results at a Roundtable with discussion of both the benefits, if any, of mediator similarity and discrimination. Perhaps [name removed] is reading this?

Hello, Friends,

The fact that the posting caused these reactions shows that the topic of neutral selection based on certain characteristics is controversial and needs to be discussed.

But speaking to this particular notice for right now, it said that the activity was a “dialogue between 100 Jews aged 21-35 on the topics of social justice and Israel ” and that they were seeking “experienced dialogue facilitators aged 21-35” who were “comfortable with Jewish-Jewish dialogue on controversial topics.”

I think it’s fair that the sponsors believe that facilitators in roughly the same generation as participants might have commonalities with them that could foster engagement. Furthermore, I thought the organization was remarkably sensitive in not requesting facilitators who were Jewish. Rather, they asked for people who have a comfort level with relevant Jewish topics.

To me, the more compelling discussion is the ethical response to a party who requests a particular kind of neutral – or requests not to have a particular kind of neutral – based on prejudice. This does not appear to me to be the case here, but clearly there’s room for discussion on the issue.

I’ve been reading the posts on this topic and am of so many different minds that I haven’t yet developed a firm point of view. I do know that I feel comfortable about my ability to meet the challenge of building trust regardless of how the parties self-identify or their initial assumptions about me as a 64 y.o. white woman.
That somewhat useless bit of information said, I think Judy makes an important point in the discussion and wonder how the parameters of this facilitator request differ from what is provided in peer mediation.

My first reaction to the original posting, and all of the previous comments, was, “As trained and experienced facilitators, our FIRST and PRIMARY responsibility is to create and ensure an environment, in which all participants feel safe enough to express themselves, candidly.” Of course, this may be easier said than done; and how do we effectively measure the “safeness” of the environment, “we think” we create. Hmmm!

While the pool of facilitators should reflect the population served; it is most important that each facilitator earns the trust of the participants–regardless of whether the facilitator shares the “same” or similar “demographic” characteristics. As professional facilitators of “assumption busting,” we need to be careful not to, also, ASSUME narrow or stereotypical constructs about the facilitator-group participants relationship.

I am an African American woman, I am very often asked to facilitate groups of people–in which there are NO African American participants. Such situations have even included–on several occasions–facilitating extremely sensitive, “difficult conversations” about feelings and beliefs about race and ethnicity, in which there were no African American participants. In many instances, the groups have invited me back, time and time again–so they must have felt safe. (Also, I routinely use anonymous evaluation forms, for feedback.) These opportunities have heightened my awareness about a facilitator’s responsibility to create a safe environment–in which participants can say WHATEVER is on their mind–without the fear or concern about being judged. These instances have also created opportunities for me to check-in with myself, about any “assum! ptions” or prejudices I might be feeling and projecting. It is important to give participants permission and opportunities to challenge our “objectivity.”

Recently, I facilitated a group of nearly 300 people, in another country, and there was NOT ONE black person present–although, there were other people of color. I do not know what the participants were expecting, of me, but I knew that I had to earn their trust and help them feel safe and comfortable. The outcome of the sessions were amazing! Participants experienced major “breakthroughs” and “revelations,” which they shared.

I’m letting it all hang out here–I am 63 years old, and yesterday, I was blessed to work with a group of high school students; and to “connect” with them, on so many dynamic levels–using music, artwork, game theory, collaborative brainstorming, candid discussions, and–most importantly–TRANSPARENCY! That is what I believe professional facilitators DO! (or should do.)

Intergenerational dynamics have become a special interest of mine; and I have been blessed to facilitate workshops on this topic for ACLEA (Int’l Assoc. of CLE Professional) and the 2008 ABA Annual Conference. I am pleased to be facilitating a workshop, entitled: Building Bridges Across the Great Intergenerational Divides: Opportunities for Intergenerational Collaboration…, at the June 25th Annual ACRGNY Conference.

One of the things I LOVE most about being a professional facilitator–especially of very “difficult conversations”–is that it challenges me, to be honest with myself and with others–in so many ways, and on so many levels. It challenges me to continuously learn and relearn.
So, perhaps we need to challenge our own assumptions and the assumptions of others, about our services. Isn’t it wonderful to be engaged in such dynamic work!

.. I am often asked how can I, a white-jewish 35 year old write a dissertation on and provide expertise on adolescent african american innner-city girls… I do it the way and the why of what you described.. More so, at 28 I was the youngest, jewish and white woman to ever teach at spelman college- a historical black womens college.. I was told by most of my students that I could and still do understand them more than most of their black professor.. I am still close with a cohort of 6 of them and it has been 5 years..I do a lot of diversity work also and where I recognize the importance of having folks identify with someone of their identity/racial group.. I also know that we all can do the work and connect with all folks.. Its a gift to know how to connect.I am often the only white woman doing work with all black children and it is wonderful for them and me..So, I appreciated your comments and concur with them..

Is there a way that the onslaught of e-mails on this topic can be stopped. The “reply all” response permits dozens of e-mails to crowd our computers. I think the message has been received and appropriately commented on.

Mr. [name removed]– Thank you for starting the discussion. Whatever the conclusion(s), raising the issue was a good thing to do.

these comments added:
As I initiated this conversation by raising the issue, I would take issue with the suggestion that the issue was unfairly limited to age discrimination. The initial solicitation did not state that it excluded non-Jews or any other protected group. It did not state that one had to be Jewish; one only had to be comfortable with a Jewish-Jewish dialogue. That would be a legitimate consideration and not discriminatory, as many non-Jews would not have been excluded on that basis. For example, at SafeHorizon, mediators handle disputes that may involve religious, gender or nationality issues on a routine basis, without regard to the affiliation of the mediator. But, the stated age requirement was per-se discriminatory. I chose to raise the point on the list because I felt (I hope correctly) that the list, and this one in particular, should be sensitive to the issue. The list itself is not censored, and our gratitude to Maria for facilitating the list is boundless. No finger is pointed at her. She does not monitor the postings and leaves it to us to adhere to the principles of our callings. That is how it should remain.

Well, as a 59-yr old goy, I thought it was hilarious that a posting seeking young Jews to facilitate a discussion between Jews about the Jewish State should offend someone because of the “young” aspect. Nu?

As a person of a certain advanced age who loves facilitation opportunities, I too was frustrated enough to write, back-channel, to Rabbi Weintraub. She kindly respond much as she did to the list noting that some groups, such as abuse victims, may be more comfortable with facilitators drawn from their own group or gender.. Patricia Barnes makes a similar point about peer mediation, and it is common practice for heterosexual divorce mediation to use co-mediators of the two major genders. In my own facilitation practice, I have recruited colleagues of color to complement my white face by co-leading groups with me at predominantly minority settings. We certainly wouldn’t sanction restricting an apartment building to whites, or taverns to men on the basis that it would maintain comfort for the existing white tenants or male patrons; however there is a plausible argument for using neutrals representative of the population being served. However before making a determination based on “hearsay” and general impression e.g. “young Jews often describe not feeling safe talking freely about Israel with older Jews”, I believe it is incumbent upon organizers of program like the one described below to at least try to gather some systematic data. In this case, it would not be difficult to select a small sample of representative young Jews who sign up for the program and ask them for facilitator preferences if any, fear about “safety” etc. etc. Without evidence, the “fears” may be in the minds of the organizers. In addition mixing groups and facilitators may result in positive change and tolerance especially with trained facilitators who is likely to accept and reflect all views that are expressed. In the absence of research other than impressions or anecdotes, I believe the default would be to at least allow some “differently aged” facilitators to ply their neutral trade. This could even be an opportunity for research with the old and young facilitators each collecting identical evaluations which would then be evaluated and published right here on this list.

I am running out of room for my email This conversation should be moved to a blog

Someone earlier suggested you take this conversation to a blog, I wholeheartedly agree.

So, leaving it off at that last comment, if you so choose to continue it here, just click ‘comment’ below, it’s free and easy to do. You don’t have to register or anything like that, just a name and email… Enjoy!

Join the above mentioned listserv [here]

Visit the Dispute Resolution Consortium website [here]

Mediation & ADR News

March 13, 2009

Benefits of Disagreeing
Hey- everyone’s favorite other-Jeff-really-Geoff-mediator-blogger Geoff Sharpe is quoted throughout an article with the above title. Btw, his great blog, Mediator Blah Blah, is over [here].

Some tidbits from the article:
“There’s quite a bit of debate among mediators globally whether this environment will mean more mediation, and certainly my experience in the first couple of months of the year is, absolutely,” Wellington lawyer and commercial mediator Geoff Sharp said.

“It works best when there are commercial relationships to be saved which won’t survive, normally, a knock-them-down, drag-em-out court trial,” Mr Sharp said.
“Examples of that are commercial landlords and tenants; contracting parties who are locked into long-term supplier contracts who have a dispute or difference but are going to have to deal with each other in future. That’s where mediation really comes into its own.”

And for those who want statistics:
Ms Powell said a stalemate situation rarely occurred, with around 80 to 90 per cent of disputes through the High Court resolved through an agreement in writing.
Read the Full article [here]

Mediators Flourish in Tough Economy
A weak economy and dwindling personal finances have impacted when and how married couples get a divorce in the Charlottesville area.
Local mediation groups and lawyers have reported changes in how often couples seek mediation to draft a separation agreement and how long they’ll wait before filing for divorce.
The Mediation Center of Charlottesville has seen an increase in the number of couples wanting to use mediation to draft a separation agreement. Mediation is significantly cheaper than taking a divorce case to court.
Between July and Dec-ember 2008, the nonprofit center handled 2.1 self-referred mediations per month for couples who wanted to split. Since the start of 2009, the center is averaging five self-referred mediations a month.

Read more [here]

Obama Names Michigan Mediator to US Board
WASHINGTON, March 13 /PRNewswire-USNewswire/ — The Association of Flight Attendants-CWA (AFA-CWA) congratulated the Obama Administration today for their appointment of Linda Puchala to the National Mediation Board (NMB). When confirmed, Puchala will replace a current board member who was a hold-over appointment from the Bush Administration since July 2006.
“We are very pleased with White House’s choice and believe Linda’s consensus-building skills and commitment to the collective bargaining process will be a valuable addition to the agency which is so critical to labor relations in the aviation and railway industries,” stated Patricia Friend, AFA-CWA International President.

Read the article [here]

Mediator Being Used in Contract Negotiations
The Germantown Education Association and the Germantown School District are utilizing a mediator as part of negotiations on a retroactive teachers contract covering the 2007-08 and 2008-09 school years.
Though negotiations with the GEA has been on the School Board’s agenda for discussion in closed session for several months, Superintendent Kenneth Rogers said it was removed from the March 9 agenda until he receives more information from the mediator.
“We really don’t have a time line at this point, other than that we are trying to settle this as soon as possible,” Rogers said.

Full story [here]