(This is the ninth is a series of posts on preparing for mediation.)
I’m going to come right out and say it. Consider role play prior to your next mediation.
Right away, I know I’m losing some of you. You’re thinking I have gone too far. For reasons unclear to me, lawyers are uncomfortable with role plays. (It wasn’t until I began taking mediation training that I saw their value.) I’m not talking about practicing an argument. I’m talking about an interactive process where you play one role and a colleague plays another. Stick with me for a moment. Role plays are recommended by noted negotiation experts Fisher and Shapiro in Beyond Reason, and Babcock and Laschever, in Ask For It.
As lawyers, we prepare for oral argument of motions, opening statements and closing arguments by practicing out loud. (Our dogs have gotten used to my perorations. I like practicing in front of them; there’s nothing like positive feedback! Of course, I sprinkle my remarks, with “Go,” “Car,” and “Treat.”) If we’re secure enough in our grasp of the material and speaking ability, we might even ask colleagues to listen and comment upon our ideas and persuasiveness. We do this routinely for trial. With better than 98% of cases NOT going to trial, maybe we should think about preparing for mediation in the same way.
For your next mediation, grab a colleague or two and ask them to play the part of opposing counsel. Fill them in on the facts and then practice your arguments. Seek feedback on what worked and what didn’t. Then, and this is crucial: ask them to give you the other side’s best arguments. Actively listen to them first, without judging or forming counter arguments in your head. Too many of us, when negotiating, think that the other side’s problem is their problem. Not so, say negotiation geniuses Deepak Malhotra and Max H. Bazerman in Negotiation Genius. The other side’s problem is YOUR problem, because it keeps you from settling the case. If you listen for the other side’s problems, you can think of creative ways to solve them. Your colleague can be helpful in brainstorming alternatives. If you walk into the mediation armed with ways to solve the other side’s problems, you are well on your way to resolving the case.
If this has converted your thinking about role plays, live dangerously and take the next step. If you really want to understand how the other side thinks, take on their role and ask your colleague to take yours. Try on their view, as Fisher and Ury suggest in Getting To Yes. If you begin to get their rationale and the emotions behind them, you can more effectively brainstorm the steps to resolution.
Having said all of this, don’t forget that one of the strategies you can use to your best advantage during mediation is listening. (See here and here for prior posts on listening.) Using the techniques of empathetic listening can have an enormous effect on the other side: having felt heard and respected, they are more likely to listen (and be persuaded) by you.
I’m going to come right out and say it. Consider role play prior to your next mediation.
Right away, I know I’m losing some of you. You’re thinking I have gone too far. For reasons unclear to me, lawyers are uncomfortable with role plays. (It wasn’t until I began taking mediation training that I saw their value.) I’m not talking about practicing an argument. I’m talking about an interactive process where you play one role and a colleague plays another. Stick with me for a moment. Role plays are recommended by noted negotiation experts Fisher and Shapiro in Beyond Reason, and Babcock and Laschever, in Ask For It.
As lawyers, we prepare for oral argument of motions, opening statements and closing arguments by practicing out loud. (Our dogs have gotten used to my perorations. I like practicing in front of them; there’s nothing like positive feedback! Of course, I sprinkle my remarks, with “Go,” “Car,” and “Treat.”) If we’re secure enough in our grasp of the material and speaking ability, we might even ask colleagues to listen and comment upon our ideas and persuasiveness. We do this routinely for trial. With better than 98% of cases NOT going to trial, maybe we should think about preparing for mediation in the same way.
For your next mediation, grab a colleague or two and ask them to play the part of opposing counsel. Fill them in on the facts and then practice your arguments. Seek feedback on what worked and what didn’t. Then, and this is crucial: ask them to give you the other side’s best arguments. Actively listen to them first, without judging or forming counter arguments in your head. Too many of us, when negotiating, think that the other side’s problem is their problem. Not so, say negotiation geniuses Deepak Malhotra and Max H. Bazerman in Negotiation Genius. The other side’s problem is YOUR problem, because it keeps you from settling the case. If you listen for the other side’s problems, you can think of creative ways to solve them. Your colleague can be helpful in brainstorming alternatives. If you walk into the mediation armed with ways to solve the other side’s problems, you are well on your way to resolving the case.
If this has converted your thinking about role plays, live dangerously and take the next step. If you really want to understand how the other side thinks, take on their role and ask your colleague to take yours. Try on their view, as Fisher and Ury suggest in Getting To Yes. If you begin to get their rationale and the emotions behind them, you can more effectively brainstorm the steps to resolution.
Having said all of this, don’t forget that one of the strategies you can use to your best advantage during mediation is listening. (See here and here for prior posts on listening.) Using the techniques of empathetic listening can have an enormous effect on the other side: having felt heard and respected, they are more likely to listen (and be persuaded) by you.
3 comments:
Nancy, a great post (as usual).
This is definitely an invaluable exercise. Just one thing to add, if I may, for those who suffer from stage fright and don't want to play "let's pretend" with a colleague. There's no reason not to reduce this exercise to paper and create a written list of 1) the other side's interests, 2) the strengths of their case (not just its weaknesses) as an exercise in countering the universal propensity toward confirmation bias, and 3) their BATNA (best alternative to a negotiated agreement with you) -- what they'll do if you can't reach settlement. Knowing what's motivating the other side, trying to see how things look from their side of the fence, and doing your homework may lead you to spot key interests that can be met in more cost-effective and mutually beneficial ways than you had originally anticipated.
Thanks, Nancy -- this is terrific advice you've offered.
Diane--
Thanks for providing a realistic alternative to actually role playing.
As a lawyer, I certainly fell under the spell of confirmation bias in negotiations, i.e., finding things in the negotiation give-and-take which confirmed my pre-existing ideas and rejecting things which I didn't want to believe. Had I done more work stepping into the shoes of the other side, I might have created more value for my client.
Best,
Nancy
Nancy;
There is a difference between role playing and rehearsal.
I am in favour of rehearsing a negotiation with appropriate help, and believe that such a mock negotiation might very well work wonders with even the real participants.
On the other hand, I have less fond of the PON role playing in negotiation exercises which injects inappropriate acting skills into a thoughtful exercise.
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