featuredblogs resized 216.

Subscribe via E-mail

Your email:

Join the Conversation!

Civil Negotiation and Mediation Blog

Current Articles | RSS Feed RSS Feed

Playworks! Teaching Conflict Resolution Skills to Children

playworks conflict resolution

Playworks, a non-profit that contracts with schools to bring organization, socialization and conflict resolution skills to school playgrounds, has incorporated rock-paper-scissors in its curriculum.   (Disclosure:  my daughter works for Playworks.)  Playworks partners with schools whose children come from low socioeconomic backgrounds.

I had the opportunity to see the program in action at a New Orleans K-8 school just as the school year was beginning.

My daughter was teaching kindergarteners a game new to them called “Switch.”  It’s like a musical-chairs, odd-person-out game for 5 players, in which a child stands in each of the four corners of a square with the 5th child in the middle.  There’s usually a line of kids waiting to get in to the game.  The child in the middle shouts “Switch,” and then each child runs to a different corner.  The child who is the last to find a  corner is the odd person out, and goes to the end of the waiting  line to wait to play again.  The head of the line then goes into the game in the middle and yells “Switch,” etc.

What happens when two children arrive at the same corner at the same time?  Conflict!

To resolve that conflict, Playworks teaches the kids rock-paper-scissors, the age old conflict resolution tool which seemed to be new to most of the children.  When arguing or shoving broke out at a contested corner, my daughter would remind them to use rock-paper-scissors.

And here’s the most amazing part:  the kids readily accepted the outcome.  The “loser” would shrug and run to the end of the waiting line.  Conflict resolved!I was astounded!  I don’t know if it’s because kids have such short attention spans that they forgot the conflict immediately, or if the rock-paper-scissors construct is just random enough to be accepted, or if the kids just readily accepted the new social norm.  All I can report is that it worked.  And it worked every time.  (I may have to use this technique in my next mediation.)

Playworks hopes that this and other conflict resolution skills taught on the playground will be carried over by the students into the many conflicts they face each day. 

To which I say:  Kudos to you, Playworks!

Persuasion in Negotiation: Tips from Washington, D.C.

persuasion in negotiation

I have been extolling the virtues of listening as a condition precedent to persuasion in mediation and negotiation.  It was interesting to read that political pollsters are touting the same thing.

The Washington Post had a long article last week quoting Republican messaging maestro Frank Luntz.  What better place than Washington, D.C., to persuade people to use persuasion techniques? 

Politicians on both sides of the aisle should take note.  And those of us who try to persuade every day can learn these techniques as well.

Here are steps Luntz proposes:

1.  Listen.  “When people feel they’re heard and understood, they’ll listen (to you).”  The key is to listen to them first.

2.  Be more empathetic.  If people think you understand them, you have a better chance of persuading.

3.  Stop lecturing.  It shuts people down.  Who likes to be lectured to?

4.  Show respect, not disdain.  This should go without saying, but it’s said because it happens all too frequently.

5.  Reframe questions.  A reframed question can lead your negotiating opposite to the answer you want.  Luntz suggests two different ways of talking about taxes:  Should the rich pay more? versus Should Washington take more?

6.  Humanize the issues you care about.  Use metaphors and examples that connect emotionally rather than intellectually.

7.  Be optimistic.

I’ve also been reading Robert Caro’s third volume on Lyndon Johnson, Master of the Senate.  One of the strategies Johnson employed after he was elected to the Senate in 1948 was to listen to fellow senators, particularly Richard Russell of Georgia.  He made Russell an ally, in part, just by listening to him. 


Mediation Skill: Persuade Through Affiliation

mediation skill build affiliation

Roger Fisher and Daniel Shapiro in Beyond Reason advise negotiators to turn an adversary into a colleague.  Sounds like Lincoln (turn an adversary into a friend), doesn’t it? 

One way to do this is to seek out ties that bind, which they call affiliation.   Affiliation occurs when we feel that we are “in it” together, that there is some commonality that binds us together.  Building affiliation is a mediation skill.

Fisher and Shapiro suggest connecting at a personal level.  An effective way to do this is to talk about things you care about.  I’ve found asking questions about raising children to be a way to take a business relationship to a more personal level.   (I’ve picked up some useful tips, too!)  Other affiliations include age, rank in the legal world, politics, religion and common interests such as sports, hobbies, etc.  As you might expect, though, if you are not authentic in trying to build affiliation, it doesn’t work.

Consider calling opposing counsel when you first receive their names and contact information.  Set up a civil working relationship on the telephone.  Meet them in person.  Go out to lunch.  Search out common backgrounds and interests.  You can take-no-prisoners on the facts and the law, but on a personal level, a more collaborative style can work in your client’s favor. 

Remember that the overall goal is to use persuasion in mediation.  If the other side feels some affiliation with you, they will be more ready to listen to you.  Then you can more easily persuade, and you are less likely to find yourself at impasse in mediation.

For more information on mediation skills, you can download my pamphlet:  "WWLD: What Would Lincoln Do? 5 Mediation Skills."


Listening to Clients: A Mediation Skill

listening is like comfort food

As a mediator, I have spent a great deal of time training, reading and thinking about how best to listen to the parties.  I spend a lot of time in mediations listening to the parties.  I want the quality of my listening to be respectful, authentic and empathetic.  I want to make a truly human connection.

It occurred to me to remind myself to bring that same intention to listening to my law clients. 

Fortunately, Mark Goulston, M.D., a psychiatrist, business consultant and coach, has outlined his secrets of success in Just Listen.   Essentially, Dr. Goulston’s premise can be summed up like this:

                  “The more your “get” where someone is
                  coming from (and care where they are
                  coming from) the more likely you’ll be
                  able to take them where you want them
                  to go.”

One of the impediments to deeply listening is our natural inclination to interrupt with a comment or with an analogy from our own experience.  Dr. Goulston recommends reigning in that inclination, and instead, asking the speaker to continue speaking.  He encourages them with three types of “interventions”:

  1. “Tell me more.”
  2. “Hmmm,” and,
  3. “Really?”

If you use these techniques with your clients, I think you’ll find that they will appreciate you all the more.   Everyone is comforted by feeling heard and respected.  (Thus, the cinnamon toast:  comfort food.)  You’ll have a much stronger connection.  A by-product is, having felt heard, they are more likely to listen to you.

In the mediation context, negotiation challenges sometimes arise because we forget to listen.  Increase your mediation skills by practicing listening.

All new techniques require practice.  Choosing a loved one to practice this on could be a true win-win.

Negotiation Tip: The Art of Re-Framing


reframing is a negotation skill

As part of mediation preparation, really good negotiators try to set the frame of the negotiation by placing the issues in a context which furthers their negotiation strategy. 

Once the negotiation begins, somewhere along the way, a party will get stuck, which sets up an impasse in mediation.  The real art in negotiation comes in the re-framing of the other side’s negotiation point-of-view.

Re-framing is described by Jonathan Fields, in Uncertainty, as:

“[L]ooking at the facts, taking yourself out of the middle, and asking how you can view [the facts] in a different light, one that empowers you rather than shuts you down.”

Fields is talking about how you can create a new story about something that has happened to you that allows you to reframe it, so as to empower you, rather than paralyze you.

I’d like to suggest that you can use re-framing to influence the other side to create a new story that they tell themselves.  This requires you to do what all negotiation experts recommend, but lawyers sometimes fail to do:  consider the other side’s needs and interests.  The reason is obvious:  if you know their needs and interests, you can craft a settlement that meets some of theirs and some of yours.  If you don’t know their needs and interests, you end up guessing what they want.  Sometimes you’ll be right, but wouldn’t you rather be better informed when making counter offers?

You can re-frame their obstacles into challenges, your small moves into “at least they moved,” their frustration into curiosity, and their negativity into useful information.  This gives the other side a different frame to look through:  challenges, reciprocal negotiation moves, curiosity and useful information.  It helps them to re-write the story in their head, making it more positive and therefore more likely to move them through impasse and into further negotiation.

The idea is to empower the other side, rather than shutting them down.  Unfortunately, as lawyers we tend to want to prove we’re right by arguing (which we are trained to do), rather than by taking a larger view and letting the other side think they’re right.  As a wise trial lawyer recently said, once we’re negotiating, we need to move from warrior mode to collaborative mode.

Practicing Negotiation

practicing negotiation with old raj

Negotiation professors Charles Craver (The Intelligent Negotiator) and Linda Babcock (Ask for It) recommend practicing the art of negotiation at every opportunity.  In fact, they suggest creating opportunities to negotiate when seemingly none exist.  There are negotiation challenges everywhere.

Here’s how I put their recommendation into action.

Over the years, I’ve been invited to a series of potluck dinners by my friend, a restauranteur.  My dilemma, of course, was always what to take to a potluck hosted by a renowned cook.  No point cooking, right?  Instead, I have relied on taking a bottle of Old Raj, a distinctive gin favored by her husband.  It is distilled with saffron.  The result is a slightly orange-ish color and a different subtle but piquant taste.  (Hey, I live in Northern California.  You’re lucky I didn’t say "oak-y with a nose of pear.")

As is too often the case, on this occasion I left the purchase of the Old Raj until the last minute.  It’s a little hard to find.  Even in San Francisco, it’s only carried by a few stores.  My office is downtown, where there are fewer retail outlets available.  In prior years, I had bought it at a discount wine store, but that store was too far away from my office to get to before the dinner.  So I went to a liquor purveyor downtown.  I was aghast at the price:  $65!

O.K., I said to myself, no time like the present.  I waited to approach the salesman until the last customer had left the cash register.  Holding the Old Raj and my credit card in hand, I said, “I can get this bother for $55 at the wine store.  Can I buy it from you, right now, for $60?”

He looked at me, paused, and said, “Yes, I think we can give you an in-store discount.”  He then rang it up for me with a 10% discount.  I did even better than I had asked for!

The end result:  I paid more than the wine store’s price, but I didn’t have time to go there.  I got what I wanted, when I wanted it, at a reduced price from the stated price.  The store got a sale versus no sale.

The secret is . . . ASKING.

We Americans tend to believe that the sticker price at a retail store is the price.  Not necessarily.  You can practice your negotiation skills every day by asking retail establishments:

Is this your cash price?

Is this your best price?

Is this your price if I buy it right now?

Practice negotiation. Try it and let me know how it goes.

Advanced Negotiation Tip: Consider Loss Aversion

negotiation tip consider loss aversion

One last word on Sway, the Brafman brothers’ book on irrational forces that move us.

The Brafmans identify loss aversion as an irrational force. Simply put, we will do almost anything to avert a loss. The word itself is emotionally charged. The Brafmans point out, “losses loom larger than gains.” Also, the more meaningful a loss is, the more loss averse we become. This is why new stock market investors tend to sell when the market goes down. They start playing not to lose.

Playing the loss aversion card is an advanced negotiation skill that can help persuade the other side and overcome impasse in mediation.

How does loss aversion interact with commitment to sway us into irrational behavior?

The Brafmans recount the experience of Professor Max Bazerman at theHarvard Business School. Every year in his negotiation classes, Bazerman auctions off a $20 bill to his students. The auction’s rules are simple: The winner pays the amount of the bid and “wins” the $20. The loser pays the amount of the losing bid. 

In his auction, generally, most students drop out at about $16 or $17. They see a bargain if they win, but if they come in second, they’re willing to pay a nominal amount. There are always a couple of students, however, who are swayed by commitment—they continue on the path they started , they don’t want to deviate from it, and they become loss averse: to drop out would mean that they have to pay their last bid. The bidding always continues after $20 is bid, the point where the winner will pay more to win the auction than the winning prize is worth. The leading bidder keeps bidding, held in the thrall of the sway of commitment. The subsequent bidder raises the bid because, as the Brafmans point out, losing is a “deeply unattractive option.” Therefore the option of continuing to bid is relatively attractive.

Over the many years Bazerman has conducted this auction, what do you think the highest winning bid for the $20 bill has been? $30? $50? $100? 


I’ll reveal the record high bid to the first person who posts a comment.

Diagnosis Bias and Value Attribution in Negotiation

diagnosis bias
The Brafman brothers’ book, Sway, is relevant to negotiation and mediation in several ways. Here is one. 

Diagnosis bias and value attribution are irrational forces at work under the level of our consciousness. They are negotiation challenges. Diagnosis bias is when we label a person or a situation and then ignore any evidence contrary to our initial diagnosis. Value attribution is when we assign a person or a thing certain qualities (e.g., case value or likelihood of prevailing at trial), based on our initial perceived value; then we stick to it even in the face of objective evidence to the contrary. Put the two together, and they are even more likely to sway us. 

Business School professors Barry Staw and Ha Hoang analyzed the performance of NBA players for five years after they were drafted. They looked at the usual metrics: scoring percentage, field goal percentages, free throw percentages, assists, blocked shots and steals. Those players with the best stats got the most playing time, right? As it turns out, they did not. This baffled the researchers until they correlated the players’ playing time not with performance, but with the order in which they were selected in the draft. They discovered that those players drafted #1 had more playing time than players drafted #2, who had more playing time than players drafted #3, etc. In other words, for five years after they were drafted (five years was the length of time of the study), the best predictor of playing time was draft selection order. What’s more: the coaches weren’t aware they were giving players minutes based on draft selection order, not performance. That is how compelling these irrational sways are.

How does this apply to negotiation? You can imagine an impasse in mediation where each side believes that its initial case evaluation was correct, regardless of new facts, inferences or arguments presented at the mediation. 

If you want to settle a case for rational reasons, here are some ways to counteract the irrational you. To counterbalance the diagnosis bias, be mindful, pay attention, and observe things for what they are. To offset the value attribution sway, be open-minded, keep your evaluations tentative, and make the effort to consider the case from different angles. There is usually more than one way to interpret the facts. Then, give yourself permission to be flexible in response to changed circumstances.

"Sways" in Negotiations and Mediations

Sway by Brafman brothers
According to Ori and Rom Brafman’s book Sway: The Irresistible Pull of Irrational Behavior, we are all governed by psychological forces which are largely hidden beneath our conscious thoughts. 

The five irrational sways they illuminate are:

• Diagnosis bias (forming initial judgments)

• Loss aversion (avoiding possible losses like the plague)

• Value attribution (immediately assigning qualities to people or situations—and hanging on to them, even in the face of additional information or contrary evidence)

• Commitment (sticking with a sinking ship)

• Fairness (pulling us into irrational behavior)

The diagnosis bias makes us reject all evidence that contradicts our initial diagnosis (judgment).

Loss aversion causes us to “play not to lose.” Not always the best strategy. In our psyches, “losses loom larger than gains.”

Value attribution has us clutching onto our initial perceived values of people or situations in the face of later acquired information.
Commitment keeps us on the sinking ship, perhaps because we’ve always done it that way.

Fairness opens us up to emotional maneuvers or moral judgments that can be irrational. (For example, “Would I rather achieve my goals or teach the other person a lesson?”)

These are useful insights for us as negotiators and mediators. They present negotiation challenges.  I’ll be highlighting some of them in future posts.

Negotiation Tip: Gaining Cooperation

negotiation cooperation
I’ve been thinking about persuasion in negotiation, and how, as negotiators, we can gain the other side’s cooperation in settling a case. This led me to Carl Van’s book: Gaining Cooperation: Some Simple Steps to Getting Customers to Do What You Want Them to Do. Van is a businessman who consults with companies and trains their employees to gain cooperation with customers. He also speaks regularly on this topic. 

Here are Van’s steps for dealing with complaining customers: 

1. Ask: Why?

2. Listen to their responses and acknowledge them.

3. Never argue with their reasons; argue with the facts.

These steps, of course, are relevant to negotiation as well. How often do we assume what the other side wants (or their motives), without checking our assumptions and asking, Why? It’s hard enough to try to meet their underlying needs and interests when we know them, even harder if we don’t.

Take the time to actually listen to their response, and then let them know that you heard them by acknowledging their view. As Van says:

    “You’re acknowledging that the other person is a 
    reasonable person for their beliefs or for their 
    circumstance. You are not saying you agree with them, 
    you are not saying they are right, you’re simply saying 
    that you understand where they are coming from. 
    They are reasonable for their beliefs.”

Van says, if you argue with a person’s reasons, you are essentially trying to prove them wrong. That gets you caught up in the “I’m right, you’re wrong” syndrome, which is a conflict trap. On the other hand, if you argue the facts, the other side is not as defensive and acts more reasonably. You don’t have to prove them wrong.

Van has a cooperation maxim: 

    “People will consider what you have to say; 
    to the exact degree you demonstrate you
    understand their point of view.” 

Sounds like Stephen Covey and Mark Goulston doesn’t it? Why is this maxim so difficult for us to adopt as a negotiation strategy?
All Posts