An Unusual Approach to Negotiations that Yield Better Results?

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By Stanley Zamor

“So, Mr. Zamor, if we do indeed settle, can you offer us a ride in your Porsche GT3 RS around the country road, as part of the settlement?” Everyone laughed.

I smiled and responded, “Mr. Richard, like I’ve said before, this is not my car, and that country road is in the Northeastern part of the country; it’s picturesque background. Although in a few weeks I do plan on driving my colleague’s on that exact road. It’s just a material item, but I see it does impact many and reminds me about the valued of things and what can be achieved. LIKE THIS AGREEMENT. Both sides approached opening statements with a defeatists tone, and that this matter would not settle today. Although, that is a possibility, it was not the reality. And you did find way to settle. Why? I like to believe that because of how you negotiated after every round; you mentioned my background and I continually managed to set and reset expectations and show the value in each of your proposals. Value-creation, no matter what the proposal was, is what you experienced, and is what you did after every negotiating round. What once was thought as being too high, too low, or even thought as being insulting, ceased.   You all began with a position, a valued expectation that you found value in adjusting. You appreciated the other parties’ “why” and “how”.  You began to assign a broader value to their case. You all put away your ego and began to appreciate the interest you all have in settling the matter instead of the importance of your positions. Congratulations.

You saw each other for what you truly are and needed; looked at what could really be achieved, instead of the more difficult/exotic “unattainable”, Porsche GT3 RS type resolve. See. Sometimes people set high expectations and need to reset them to what they truly need to get it done. Um, does that make sense? That is why I kept the background as we negotiated?” The Value-Creation Approach.

The Takeaway: As I have watched, facilitated and help manage thousands of conflict negotiations throughout my years as a professional neutral, there are several truths that continually playout. Many of these truths (values) are how I approach helping disputants find solutions to their conflict. The following are just a few of the elements to finding solutions to business and/or interpersonal conflicts: 

  1. Separate the person from the problem.
  2. Allow them/give them space to reveal their truth and they will.
  3. Let-Go Your Ego as Stratego

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultant/professional he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, and Family/Business relationships.  ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com; www.agree2disagree.com; www.LinkedIn.com/in/stanleyzamoradr. (954) 261-8600

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“When You Negotiate/Mediate BEWARE WHO YOU BRING!?!”

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By Stanley Zamor

I was recently called by a mediator colleague who seemed hushed, rushed & speaking in a whispering tone. He was at the commencement of a mediation and excused himself to secretly call me in private.  He nervously explained that as he was about to start a commercial mediation conference, and while ushering the Plaintiff and his attorney into the conference room, they abruptly stopped, turned around and refused to enter after seeing the Defendant and the Defendant’s attorney were sitting with a third person unrelated to the lawsuit. The Plaintiff was highly upset and marched into a smaller conference room stating that he refused to mediate if the other person stayed in the mediation. The Plaintiff felt that the third person is largely responsible for most of the dispute.  The Defendants insisted the third person stay.  The Defendants being sued is a small family business and its principal individually.  The third person identified himself as an Attorney-CPA but wanted to participate in support of his cousin (the business owner) and as a friend of the business; he initially assisted with the company’s accounting, vendor accounts and setup.

My colleague stated that he knew the intricacies of the Florida Mediation rules/statutes/ procedures but was stuck. He did not know quite what to do since both sides appeared so ridged and this mediation took months to set up.  What to do?

INSIGHT, PARTY SELF-DETERMINATION

Mediation is a consensual process whereby parties have the unique opportunity to be in control of their own destiny.  Unlike being in court or an arbitration parties can determine how they negotiate and with who.  Often one side may bring someone to the mediation that they other side feels disrupts negotiations. A skilled mediator will know the difference and will encourage a constructive process and dialogue.  

MY SUGGESTION, HOW TO DISCUSS PARTICIPATION

With the Defendant, discuss that only named parties/parties of interest participate in mediation. However, if the Plaintiff agrees there will be restrictions that must be adhered to. The mediator will ask the third party to leave if his behavior less than constructive.

With the Plaintiff, discuss how a third party may have a value and influence on how the Defendant negotiates by setting them at ease. People usually negotiate better when they feel supported, less stress and anxiety doesn’t cloud their judgement.  

OUTCOME

I was later told that the third-party participated in the mediation conference and offered several strategies regarding how to resolve the matter while maintaining vital portions of the business relationship. They settled in four hours.

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships. 

szamor@effectivemediationconsultants.com

www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

An Alternative to Litigation: Can’t Afford a Lawyer. Don’t Need a Lawyer? DIY Solutions, REALLY.

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If You Want to FIGHT…


If you want to fight, go to Court. If you want to bury your opponent in legal fees/cost or be vindicated with a sense of “I put you through same levels of frustration you showed me.” Then go to Court, right? However, if you want to find and create solutions that just “get it done” so you can move on and deal with other life circumstances. Or, if you need to resolve the conflict while repairing some aspect of the relationship, then mediation facilitated by a skilled mediator maybe what you need. And you can often do it yourself without a lawyer.


Sword-n-Sheid vs Bridge-n-Brick


We have been conditioned to believe that you can only find resolve in court. That the only way to get your legal needs met is when you go to court; and you can only do that if you hire a lawyer. While you should use and hire a competent lawyer who will vehemently represent you, most can-not afford competent representation. For those who have participated in the Court system, they will disagree with these comments; and add that after years of waiting, the decision they received rarely satisfied them.

Justice Jorge Labarga, Florida Supreme Court established a commission who conducted a three-year study regarding ‘Access to Civil Justice’. In its’ 2016 results the commission reported that the unmet civil legal needs of the disadvantaged, low and moderate-income Floridians are staggeringly high; mainly due to high legal fees. With over 100,000 members of the Florida Bar, I asked myself, “How is that possible?”


If You Want to Resolve and Move Beyond…


After over 20 years as a certified mediator (and trainer/coach) I have seen how advocates approach and use mediation the wrong way. Let us be straight and clear, mediation is a process that provides an alternative to the high-cost and uncertainty of Court. Mediators are ethically bound by Statute/Rule NOT to give legal advice (even if they are also an attorney) and can be grieved if they do. It is not court, yet many try to operate as if it is. When a skilled mediator knows how to address party needs/wants that mediator can help resolve conflict in a manner that Courts can’t; with or without an attorney present. A skilled mediator through conflict resolution techniques can help transition the discourse while achieving results where the interest/goal is to be done and move past that issue. Or, in many cases maintain a relationship past the dispute.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant & Coach he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Part 2, The Basics of Online Negotiation/Mediation: Creating Value Through COVID-19” By Stanley Zamor

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“Thank you for allowing me to be your mediator. If you can clearly see/hear me, please give the thumbs up signal… Thank you. You are all not muted and I will do my best to make this feel comfortable and familiar. Thumbs up if you have participated in mediation and/or negotiations using an online platform. Good. Well mediation is a process and technology allows for more flexibility… I am a third party impartial neutral without the authority to impose a decision/solution… All of the rules of confidentiality apply, and all named parties are present correct?… Now, there may come a time where I may need to meet with the parties and their attorneys privately, or the attorneys privately, or even in rare circumstances just both parties together…You are encouraged and empowered to create your own solution that best satisfies your needs today and craft a Mutual Acceptable Agreement… Are there any questions. Let’s begin.”


Part 2 – Creating Mutual Gains and Value


Recently I facilitated an online mediation where both attorneys expressed a frustration with the case and how the matter was being litigated during COVID-19. Everything was an issue, from document production requests/responses, to communicating with multiple revolving attorneys on the case. Nothing was consistent. The above are excerpts from my Mediator’s Orientation Statement (aka the “Opening Statement”) where I addressed the attorneys’ frustrations. IT WORKED!!!! During the process I used the online platform functions to meet separately various times with the attorneys alone and their clients. I was able to create trust in the process, between the attorneys/parties and build perspectives that led to shared mutual goals and a willingness to create an mutually satisfied agreement.


Not enough value is placed on the opening statement (and using an online platform makes is more difficult). Depending on the case & participant specifics, negotiators need to be flexible in their approaches and be prepared to reserve the “Harsh-Tactics” for face-to-face interactions or court!
So, as you negotiate through online platforms think about the following:


1) What do you want out of the process and how will you approach it differently than the usual face-to-face interactions?
2) How have you responded to conflict or the adverse opinions/positions of the other side?
3) How will you participate differently when online?
4) Prepare a brief and concise opening statement that also captures your expectation with online negotiation, AND YOUR LIMITATIONS!
5) Be honest about what you want, and where you are willing to go, save ego for court.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com; www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Preparing for Negotiations: Do a S.W.O.T. Analysis”

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By Stanley Zamor

So after three intense hours of negotiations where I shuttled between private rooms, I decided to bring the lawyers together in the hallway and I asked them, “Well we have tried for quite some time to find common ground and you both are debating business/legal positions that neither want to move from. If you allow me to, can I approach the remainder of our time in a different way? Both attorneys looked puzzled, yet agreed. I proceed to use an S.W.O.T Analysis approach and after 90 minutes they began to draft a mutually agreement.


So what is a S.W.O.T. Analysis? This acronym stand for Strengths, Weaknesses, Opportunities and Threats. In the late 1960’s Albert S. Humphrey developed this framework to better analyze business/organizational decisions-making. A S.W.O.T Analysis is a tool that can be used in a variety of industries.


The S.W.O.T Analysis has typically been used in a business and marketing context; I like to suggest that it can also be applied in a variety of areas including that law.  It is a helpful guide to analyze and review positions, strategies, ideas or approaches towards a challenging issue.  This article is limited and cannot describe the specifics and intricacies of creating a S.W.O.T Analysis (the literature online is abundant). Consider the following:


Strengths:


Strengths are internal factors that influence your position. List five reasons why you feel your position is strong. Explain why and how you feel that way.


Weaknesses:


Weaknesses are internal factors that influence your position. List five things that are risks for you. Why?


Opportunities:


Opportunities are external factors that influence your case or current position. Opportunities are not as easy to identify as some may think. You must spend time researching your business industry and be honest with yourself about your wants, needs and walk-away points.


1) Identify 5 positives that motivate you to proceed?
2) Identify any interesting trends or similar issues in your industry or legal position that you can imitate or rely on?


Threats:


Threats are usually external factors that influence how to proceed. To review what your threat are a variety of questions should be developed. The following are not exhaustive:

1) List 5 risks you face if you go forward with your position.
2) Should you not prevail as anticipate, does the loss change your position in the marketplace or industry? If so, how?
3) Will your reputation be harmed if you do not obtain a favorable result? If so how?
4) What is your financial risk tolerances?


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com
www. effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600