Negotiating with Local Environmental Agencies

Yeah, OK, I admit it…I let that pile of bar journals stack up until they are just about to the ceiling before I take the time to peruse them for little jewels.  Well I recently perused the stack (really for office safety and ingress/egress reasons) and there it was, a little gem in the form of Anna Long’s article entitled Negotiating Consent Orders and Settlement Agreements with Local Environmental Agencies. It appeared in the March issue of the Briefs which is a publication of the Orange County Bar Association.  

Anna is an attorney with Lowndes Drosdick Doster Kantor & Reed, P.A., in Orlando who specializes in environmental law.  Her article was most interesting to me because it focused on the practical aspects of dealing with environmental agencies and environmental Notices of Violation (“NOV”) rather than the technical aspects.  Not surprisingly, most landowners on the receiving end of these little NOV gifts respond with a knee-jerk reaction which is to immediately go on the attack like rabid dogs.  Anna wisely encourages landowners to step back and suggests a more measured response.  Her suggestion is simply to do your homework.  She suggests that you hire the right people, and gather the right team before walking through the environmental agency’s front door.  I would add to her advice by simply stating that it is wise for landowners to also check their foaming mouths at the door.  Anna also suggests that you research with whom you will be meeting and what their education, background with the agency and level of decision-making authority is.  I note here as well the importance of actually scheduling a meeting rather than raging into the agency’s office unannounced (not a good way to set the right tone for warm fuzzy feelings of negotiation and compromise).  Her approach to the actual meeting and necessary follow-up is equally as level-headed.  Go on, read her article for the rest.  It is really great.

And, if all else fails and the NOV sticks, don’t forget that there is a seldom-used relief valve for landowners in the form of Florida’s Environmental and Land Use Dispute Resolution Act.  Sure it has its own problems but in this economy isn’t a stab at resolving the dispute a better alternative than filing suit and enduring the often drawn-out and expensive litigation process?  

- Sandra C. Upchurch

supchurch@uww-adr.com 

Communicating with your mediator; sometimes smoke signals aren’t enough…

While conducting a mediation recently I was simply baffled by the position of one of the attorneys.  The position appeared to be contrary to caselaw, contrary to common sense and just plain old contrary.  I spent most of my day reading tea leaves trying to figure out if this attorney was waiting for me to play “bad cop” or was waiting for me to perform the obligatory “reality check” for his client as mediators are so often expected to do or did this guy simply need to go back to law school.  I was simply confounded and beginning to wonder if I had stepped out of litigation mode too long ago to recall how this type of case was going to play out in front of judge or jury.  Or horror of horrors, could I actually be wrong in my analysis?

In this situation I finally had the opportunity to have a private conversation with the attorney.  I delicately explained that I generally can play any role I am needed to play but that I needed a hint from him about what was expected of me.  In this case he did confess that he was having what he called a “client control” problem and he would very much like for me to step in and be the bearer of bad news.  Hallelujah!!  The attorney and I were seeing eye to eye and it appears after all that I was not w-r-o-n-g (I really hate that word!!)

The lesson learned here is that morse code, smoke signals and mental telepathy are not practical means of communication at mediation.  If you need help from your mediator, just ask for it.  You don’t need to make a federal case out of it in front of your client and ask for a private mediator/attorney caucus.  Just step outside of the room for a beverage or a snack and track us down.  That is why we are pacing the halls rather than sitting back at our desks.  We are all yours all the time while we are mediating.  Client control problem, bad set of facts, unwelcoming venue, we have heard it all and can deal with it all if we are just given a clue as to what you need from us.  Just in case, I am scheduling my mind-reading course for this summer.

- Sandra C. Upchurch
supchurch@uww-adr.com

Mediation: A Place for Form and Substance

The form should be for them, and the substance, for you.  What do I mean?

From where I, as a mediator sit, everyone should both be focused on the substance of deliberations and be cognizant of the form in which the deliberations take place.  For parties, it is important to focus on the form when interacting with the other side (and mediator) and the substance in the quiet of your own caucus room.

Still want to know what I mean?  Well, we all know by now that the achieving the goal of resolution requires a multitude of things.  The way in which you pursue resolution, the manner in which you speak and convey ideas or information, THE WAY YOU INTERACT with people is crucial.  A proper tone can be the difference between getting the other side to work with you or push against you.  That is what I mean by "form".  How you interact makes it possible, in most cases, to make meaningful progress in a rational, efficient manner whether the issues are mundane, technical, simple, complex, or riddled with emotion.  I believe form is the canvas on which everything else is delivered and thus may be judged.  A bad attitude, adversarial response, a snide comment, or an insensitive dig can stop all progress.

While form is important in terms of what you say and do and how you do it, do not make the mistake of getting hung up on the other side's "poor form".  When making substantive decisions, you need to, of course, focus on the substance.  In the back-and-forth of mediations, people all to often fall into the trap of reactively negotiating.  They may get lucky and get through even though they behave in the same way the other side is behaving.  But more often than not, the side that stays focused on the substance and always works to use "proper form" will get a better result, or a result no less advantageous, but achieved more cost effectively.

So, to summarize.  Both form and substance are important.  YOUR form and the substance that is. Try ignoring the other side's gaffs, missteps, and destructive behavior.  The other side's form should not be an impediment. In mediation, if you always act from a position of confidence and politeness with an eye on the substance, you will be glad you did.

- Richard B. Lord
rlord@uww-adr.com

Wills, Families and Children: An Ounce of Prevention…

Once upon a time there were three children all of whom were loved equally.  One child spent his adulthood in and out of rehab all on Daddy’s tab.  Another child married into a wealthy family and was in need of no financial assistance.  The last child lived a happy life and over the years asked for nothing from dear old dad but when push came to shove she needed a little help getting the grandkids through college and setting up some funding for retirement.  When Daddy had a heart attack and passed away unexpectedly the three siblings gathered to learn what they have been left by their father.  What they didn’t  know is that Daddy felt as though he spent a small fortune on child number one just getting him through rehab and whatever inheritance he had coming had long since been spent in Daddy’s mind.  Daddy looked at child number two and saw a loving and stable marriage, grandkids through college and retirements already established with no uncertainties. When Daddy saw child number three he realized that here is where his money would most wisely be spent so he left the majority of his estate to this child.  When the siblings gathered to learn about the will provisions, they hugged and kissed and accepted their father’s intentions and realized the wisdom behind his choices, right?

WRONG!!!  WRONG!!!   WRONG!!!

This is when it hits the fan and blame is distributed by spouses, grandkids, siblings, you name it.  Child number three is smothered with anger and feelings of guilt and that is just the beginning of the family feud.  This is where some preventative measures would have been most helpful.  In 2008, writer David Cay Johnston discussed the problem and suggested that “being upfront may be hard but could serve you in the long run.”  In his New York Times article he encourages sitting down with families in good times and disclosing estate plans and will distributions.  At the very least this will direct the fire at the person responsible for the decision and not at the recipient.

Gerald LeVan, a family wealth mediator at the Upchurch Watson White and Max Mediation Group, strongly encourages families to sit down and talk about their plans to avoid litigation and will disputes.  Mr. LeVan says that in this manner at least the families have been put on notice, they have been treated with respect and they don’t have unrealistic expectations.  Recently the San Diego Estate Planning Lawyer Blog touted the importance of communication in dealing with the harsh reality of unequal will distributions.

So, take the time to sit down with your families and have that awkward, uncomfortable conversation.  Be clear, be direct and be honest.  Who gets what, when, why and how.  As hard as it may be, your real gift to them will be a healthy and continuous sibling relationship after you are long gone.

- Sandra C. Upchurch

supchurch@uww-adr.com 

The "Goal Oriented" Approach to Mediation Negotiations

As I have mediated thousands of cases over the last couple of decades, I have come to realize and appreciate the importance of the concepts of mutuality and trust in this process of self-determination. As mediator the question becomes how to encourage the implementation of both concepts for the sake of the "bridge-building" exercise. The answer for me has been in the use of a "goal-oriented” approach to the negotiations.

A "goal" is defined as "a reasonable expectation to achieve a negotiated resolution". In recognition of the multiple sides to a negotiation, it is reasonable to anticipate each party has one. The chance that these "goals" are the same is fortuitous at best.

More likely these goals are not the same, and the ultimate issue is "how different are they?" The answer requires the patience of the process that allows a claimant to move from his/her/its demand and a respondent to move from zero (or his/her/its respective demand).

The key in building both the mutuality and trust of the negotiation is to reach these goals at the same time.

For the claimant/respondent to be above/below his/her/its goal at the time that other side is at his/her/its goal is not only contrary to the mutuality of the process, it usually results in the statement, "Well, if you are that high/low, we may as well not go any further".

However, if both sides can be orchestrated to get to their respective goals in an agreed number of moves, then the bridge-building has the opportunity to be effectuated. Regardless of the initial demand (or response) the understanding is that each move has everything to do with where that party is going and nothing to do with where the other party is or has moved to.

The result is the avoidance of relationship bargaining which can destroy a mediation negotiation (i.e., "she moved a dollar, so we will move 50 cents"). If both sides can get to their respective goals in 3-5 moves, at that point the parties themselves will have created the figurative "reasonable ballpark" within which they can then try to identify "common ground".

Why the designated number of steps? It is not likely that either side trusts that the other will get to their "goal" in the first move. (There are exceptions.) The trust- and bridge-building usually takes a minimum of three moves; and the patience for "getting to goals" as well as the timing of a one day mediation usually dictate a maximum of 5 moves. Of course, we have all been in mediation that has gone into "extra innings" to as many as 15-20 moves until 3am! However, these are either exceptions or are otherwise scheduled for multiple days. The latter event will still be orchestrated consistent with that timing, (i.e., to get to goals by day two, and to bring goals together in day three).

It should always be remembered that these goals are likely different, and therefore when both side have reached their respective goals, a reasonable "ballpark" should have been established.  If so, common ground can thereby be achieved. Because the ballpark should based not on what either side wants, but rather on the same known facts, law, venue, and party evaluations, the goals while differing should have the same basis. If there are facts, law, venue, or party evaluations that are differing, those differences should be better understood, dialogued through facilitation, and likewise mutually re-evaluated.

Once re-evaluated, the exercise of establishing common ground can be negotiated through direct, facilitative discussions; indirect, facilitative discussions; or a Mediator's Proposal. In whichever method the parties elect, there is a "home plate" in every reasonable ballpark".

So, let's play ball! Work to build trust, appreciate the mutuality of the process, and ultimately common ground can be achieved.

- Rodney A. Max
ramax@uww-adr.com

Language as a Tool of Conflict Resolution: The problem of familiar address

As attorneys, mediators or negotiators we are in the communication business.  Our success or failure is directly related to what we say and how we say it.  How we communicate determines in large part whether people see us as “civil,” “competent,” “credible,” “professional’ and “ethical.”  This is true of both the spoken and written word, but it is especially true of our oral communication.  When we write, we have time to deliberate and make fine distinctions.  When we speak, we are in a linguistic sense flying by the seat of our pants.  No word or phrase means the same thing every time or in every circumstance, and speech on a subconscious level can be irreversible.  When the choice of language results in the creation or aggravation of conflict, there is something linguistically amiss with the speaker, the listener, or both.
   
In this and future blogs, we are going to talk about the way we talk.  Using the science of discourse analysis, we are going to work toward an increased sensitivity to language as a tool of conflict resolution.  We begin with problems inherent with familiar forms of address.  In our zeal to develop a friendly atmosphere with others, can we get too familiar too fast and under the wrong circumstances and thereby end up being counter-productive?
   
Most Indo-European languages have both formal and familiar forms of address.  German is a good example.  In German there are two words for “you.”  “Sie” is used when talking to adults you know only casually, in business situations, with colleagues, and any time you have doubts about the degree of intimacy.  “Du” is used when talking to family members, close friends and children under the age of twelve. German speakers can become very uncomfortable or insulted if the sie/du rules are broken.
   
A problem in English is that our familiar forms for addressing another person (“thou,” “thee”, “thine” and “thy”) has died out.  To distinguish between formal and familiar situations English speakers resort to titles and first names (“Mr.” Brown versus “Bob”).   We still retain, however, a very real, subconscious aversion to violation of the formal/familiar rules of address.  Generally speaking, older persons are more apt to be offended by the use of their first name in non-intimate settings than younger persons – but some situations can render the use of a first name offensive to persons regardless of age.
   
A younger speaker talking to an elderly listener:  a great many elderly persons grew up in a society where the formal/familiar dichotomy was strictly observed in speaking with elders.
   
Members of racial minorities:  Historically, Afro-Americans were routinely called by their first names as a signal of subservient status.  The use of the first name was in and of itself a badge of disrespect.  Many Afro-Americans (and members of some other minorities) retain an aversion to the use of their first names in non-intimate settings.  The problem can be compounded when addressing elder members of minorities.
   
In settings of disparate economic or social status:  The use of first names across groups occupying divergent economic or social strata can prove offensive to persons in the lower strata.  It may be seen not as an egalitarian effort but as an assertion of superiority by the speaker.
   
In settings where the familiar form (first name) is applied to some individuals while titles (“Mr.”) are applied to others:  It is not uncommon in mediations or other group settings to have professionals or other persons who protocol requires to be referred by their title (“Dr.” “Professor,” Senator,” “Captain,” etc.).   Any speaker using a title for these persons but referring to others by their first names runs the risk of having the untitled persons resent the unequal treatment.
   
Launching into the use of first names too early:  We have all heard some person, as soon as a group convenes, insist that we all call one another by our respective first names.  This misunderstands the formal/familiar dichotomy.  The right to call someone by their first name, linguistically speaking, derives from status determined over some period of time – even if it is a short period. It is not a right that can be established by decree.  In every discourse there will come a time when the parties feel comfortable switching from the formal to the familiar.  Skillful speakers begin with the formal and watch for an appropriate time for moving from the formal to the familiar:  “Do you mind if we use our first names?”  This usually occurs after a significant period of interaction – during which some degree of bonding or intimacy has been established.
   
In summary, the appropriateness of familiar address is highly situational. Any speaker who carelessly assumes that the automatic use of first names is an endearing or egalitarian exercise may impede conflict resolution.

Howard R. Marsee
hrmarsee@cfl.rr.com
UWWM Mediator/Arbitrator/Special Magistrate

Mediation between the Rational and Irrational - a little about tigers and stripes…

I just read a simply phenomenal blog by John Folk-Williams: Mediating on Two Tracks: the Rational and the Rest of Human Nature. In a few short paragraphs he summarizes exactly why some cross-collaborative efforts are not successful and even why so many cross-collaborative efforts are not attempted. In truth, he summarizes really why the alternative dispute resolution process as a whole sometimes fails.

Oftentimes one party is fostering a hostility which is based on raw emotion, misinformation or as John says “past clashes on unrelated issues.” Let’s call this the “irrational party.” If you pair this party with an opposing party, the “rational party” if you will, whose approach is “just the facts, mam,” one who may be too impatient to allow the mediator the time to nurture the other party through their issues, then you have before you the potential for one unproductive day and one unproductive mediation.

John reminds us of the divide that the mediator must bridge in these cases and make no mistake about it, the gap between rational and irrational immediately becomes the mediator’s biggest challenge. The mediator must try delicately to move the “irrational party’ more toward the middle where emotion may not run as deep while also dragging the “rational party” closer to the middle in reluctant recognition of the other party’s perspective and feelings. This happens most often in cases where one party is a corporate entity or a governmental entity and the litigation they are facing is just a part of the daily grind while the other party is an individual unaccustomed to the tension of litigation and with much more personally at stake.

May I introduce you to your mediator, Dr. Jekyll and Mr. Hyde. The mediator must be logical and fact-oriented in one room and play the gentle role of psychologist and trust-builder in the other room. Whether the mediator finds this delicate balance is only apparent at the end of the day when the parties end up shaking hands with a fully executed settlement agreement in hand or gruffly packing up their bags and sheepishly waiting to leave the building until an announcement is made that the other party is gone, empty-handed of course.

To avoid these types of clashes I could counsel you to address the issue in your pre-mediation conference with your clients. I could tell you to prepare your clients to listen with real empathy to the opposing party’s story or I could tell you to coach your client to accept that the other party’s documentation tells a far different tale and that evidence is really what drives the train at trial. I could tell you to request that your client shelf his/her Spock-like demeanor or drama king/queen persona for the day but I know how that works, you know the adage, tigers and stripes… not gonna happen…

So, your best bet is a good mediator, a patient mediator and a persistent mediator. I wonder where you can find one of those…

- Sandra C. Upchurch
supchurch@uww-adr.com