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Human Law Mediation Ezine: September 2008

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Curve Curve

Reasons Negotiations Fail
OR - How Not to Handle a Dispute

As a lawyer and a mediator I tend to get involved with a business when things have gone wrong, when a relationship has broken down, attempts to negotiate a settlement have come to a standstill or in a worst case scenario where Court action is being threatened.

I’ve been interested over the last few weeks to observe some of the common reasons that negotiations fail and commercial disputes blow up via of all things a Channel 4 fly on the wall style TV programme. The TV show Don’t Blame the Builder looks at situations where the relationship between a builder and client have broken down – often over disputes about payment and timing delays. The programme claims that each year more than 100,000 building jobs in the UK go horribly wrong and it’s often the builders who end up taking the blame.

To tackle this problem on a case by case basis the show brings in a mediator to work with the warring parties. As an independent party he has no axes to grind for either side (at least that’s how a mediator should behave – of course this is a TV show so I’m not sure we see the best side of the mediator always). The aim of the mediator is to bring the two sides back together and get the building work back on track.

What has fascinated me about the programme is that it really does highlight some of the best and worst ways of conducting negotiations and trying to come to amicable settlements. As a human interest TV show it really does highlight how personalities and feelings and emotions can sometimes get in the way of common sense.

The programme is useful in reinforcing some of the things I talk to participants in mediation about:

Honesty is the best policy
Being honest is crucial. And that doesn’t mean showing all your cards at once, but it does mean not misleading the other party and making the dispute worse. In my experience one of the most damaging things a party can do is to blatantly lie which sadly happens too often when parties are in dispute and can even happen during a formal mediation.

One of the Don’t Blame the Builder shows saw the builder admitting on camera to lying to the other side. This only served to upset and annoy the other party (especially as it was about costs, which had been one of the major caused of the dispute from the outset.) Of course not telling the truth or to put it politely veering away from the facts is no help at all in resolving the dispute and makes the job of the mediator even more difficult.

The role of any mediator is to try and spot any dishonesty – which sometimes can manifest itself as vagueness or a refusal to put things in writing. A mediator faced with a lying party should confront the dishonesty quickly in order to minimise the negative consequences to the negotiation.

Be Reasonable!
Being reasonable and sticking to an agreement is the only way you will resolve an ongoing dispute. Again in the programme the mediator tried to get a woman to agree to give decisions within the deadline set by the builder to avoid any further delays or increases in cost. She failed on many occasions to meet this agreement.Such an approach gives ammunition to the other side even when it may seem justifiable not to be complying with a deadline.

In this case the woman should have been firmer with the mediator and not agreed to a deadline or a term which could not be met. In my view the mediator could have also been more structured in the way he obtained agreement from the parties to this condition.

Keep Emotions in Check
Leaving emotions and personalities behind although not easy is essential if you are to keep things on a business footing and find a resolution.

One of the things we do in meditation training is to emphasize to the parties how to prepare for the mediation and to try to curb their emotions during the mediation process. Indeed the really skilful negotiators are those that are calmer and can focus just on getting to a solution.

Clarity is Everything
Be clear – and put things in writing. Too often I can become involved in disputes where there is an argument about what was said and when you look into things there is nothing or very little written down by way of agreement. It’s hardly surprising then that there are misunderstandings and disagreements about what was due to happen.

It is interesting that in the first Don’t Blame the Builder programme a key reason why the mediation was successful was the presence of a clear and written contract. Despite the dispute being emotional, it was relatively straightforward to resolve, because the contract was there to fall back on. The specific terms of the contract, signed by both parties, made the mediator's role easier.

Don’t Stew on Problems
Raise issues early – don’t allow little niggles to become major headaches. You see it in building disputes but also in other type of disagreements too and before you know it a series of apparently small issues taken together become cause of a major disagreement. The solution is to confront problems early, firmly and with courtesy before they get out of hand.

If you are facing a business dispute and think that an independent third party might be able to help why not take advantage of our free half hour mediation assessment. Complete the enquiry form or call us on 0844 800 3249.

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Curve Curve
Justin Patten
Justin - Personal Profile
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