Get Above the Conflict. Photo by David B Savage
When you are in a conflict, come together to decide the best pathway to success. Coming together and designing together starts the collaborative process and starts to rebuild possibilities.
Dispute Resolution Key Questions;
- In an increasingly short-term, task-oriented and competitive industry, how can we encourage more creative, inclusive and “big picture” ways of thinking?
- While telephone calls and email communications are at times good things, how can we encourage effective face to face two-way communication?
- In this time of stricter corporate governance for executives and directors dealing with an ever increasingly complex industry, can we find approaches that will maximize productive endeavors and minimize resources and opportunities lost on conflict?
- If greater than 95% of conflicts in our industry are resolved by employees, management, and advisors, then why are there not a broader range of tools and processes available to those professionals?
- If greater than 95% of the company to company conflicts are not within the mandates of the government/ regulatory boards, then do we why keep looking to them for solutions?
- If greater than 95% of cases before the court are settled out of court, then why focus on adversarial legal positioning for the 5%?
- How much shareholder value is lost due to avoidance, failure to explore alternatives and failure to identify mutual gains?
- Wondering how to get through a challenging negotiation?
- Do you need some different strategies to improve your business partnerships?
- Looking for ideas to deal productively with conflict and get on with business
Starting in 2001, the Company to Company Dispute Resolution Council brought together over 100 professionals from diverse backgrounds in the upstream Canaidan energy industry generated processes, initiatives, template agreements and recommendations to industry and regulatory bodies.
One of the most powerful recommendations is the Situation Assessment Meeting (S.A.M.).
I have facilitated a number of S.A.M.s over the years. I ususally get called in well into the conflict and often after legal claims have been filed.
I will get the company representatives/ decision makers together for half a day not to debate who is right. Rather to focus on the issues, interests, the external resources, the alternatives and the costs/ benefits of negotation, facilitated negotiation, mediation, arbirtration and court. I then leave the parties to consider what they wish to do. We meet one week later to explore their insights and choices on their best conflict resolution commitments.
Over 80% of those parties (who have often been working towards litigation and court for months or years) come to an agreement on the conflict. That’s right, once the get out of their positions and claims, they realize they both have far more to gain by getting back to building their businesses. And, most often, the terms of their agreement is very different from what they anticipated when they were stuck in the win/lose mindset.
I strongly encourage you to engage in a S.A.M. when you are stuck in a battle.
I credit the 100 plus professionals that created the Let’s Talk Handbook and all the tools and processes that were generated and still are powerful tools to resolve not only company to company conflicts. The S.A.M. works as well for personal and stakeholder conflicts.
Credit to many including: Lynda MacNeill, Linda Matthie Arden Berg Bill Remmer Dave Gould Noel Rae James Armstrong Pierre Alverez Louise Cornfield …
Here is an excerpt form our Company to Company ADR Handbook: Let’s Talk.
SITUATION ASSESSMENT MEETING
In preparing for a mediation, a preliminary get together of the mediator and counsel (and the Parties) may prove beneficial in establishing the ground rules for a mediation. This meeting has been described as a Situation Assessment Meeting (“SAM”). This meeting is an opportunity for Parties in conflict to discuss the dynamics of their dispute and jointly design a dispute resolution process appropriate to their unique situation. In essence, this enables the Parties to build a road map for resolution of their dispute, while ensuring that they do not harm or compromise their litigation/regulatory steps.
SAM’s are flexible and generally:
● are facilitated by a neutral dispute resolution expert;
● deal with process issues, not substantive issues;
● identify all the necessary Parties and address issues of authority;
● address planning, preparation, and logistics for the dispute resolution process;
● enable the custom design of the appropriate dispute resolution tool (i.e. negotiation, mediation, arbitration, litigation) and, if applicable, the selection of the appropriate neutral facilitator; and
● provide the Parties with the best opportunity to make an informed decision about continued participation in a future dispute resolution process.
Experience to date
with the SAM has been very positive for a number of reasons:
(a) It’s a safe and simple first step in stressful and conflicted situations. Most
Parties agree to an invitation to a SAM because they have “nothing to lose”.
tend to buy into and more fully commit to a dispute resolution process that they have helped to design. This has historically resulted in a higher settlement rate before litigation/regulatory hearing.
(c) The Parties identify roadblocks and preparation issues, and plan for these
effectively, enhancing the success of their process.
(d) The Parties bring decision-makers to the meeting, which is set for a specific
duration to maximize results.
(e) An informed “no” and a decision to proceed with litigation/regulatory
hearing is a perfectly acceptable outcome.”
C2C ADR Situation Assessment Meeting
Taking a few minutes to assess and analyze the current situation and plan for the changes and results you would like to see can help identify the best fit of available resolution choices. This tool provides a quick and systematic approach to assess and analyze the current situation. It is designed to assist you in identifying the best fit of available resolution choices and planning for the changes and results, you would like to see.
Where are we?
1. Assessing the current situation is the first step. Considerations include: Who are the participants?
2. How would you describe the problem or issues? Describe in a neutral fashion. What is the current state of affairs?
(list contact names and use an additional sheet for each participant, as needed)
SITUATION DESCRIPTION – CORE ISSUES (THE WHAT)
1. Very briefly, in bullet form, what is (are) the facts for each participant?
2. What are the issues? (Try and describe at least three aspects of the situation, in a neutral non-positional fashion or in a factual manner.
What are the issues applicable to the other company(ies)?
THE CURRENT STATE
Having identified all the issues, very briefly describe where you are at with each of the issues:
UNDERLYING REASONS FOR THE DISPUTE (THE WHY’S)
What got us to this point?
The current situation is the result of various causes and effects, within all of the companies involved. Personalities, corporate cultures and objectives, policies and procedures, financial factors or external pressures may have contributed to the current situation. Analyze the causes and effects by filling in any circles that apply to the situation, or add other possible causes below and explain:
Information Technical merits Legal issues
Interpersonal conflict Differences of opinion Strongly held values
Differing interests Perceived differences Other:
(REMEMER TO FURTHER EXPLAIN ANY CAUSES AND EFFECTS IDENTIFIED) (rather than just one box with other in it, would it be beneficial to have three or six circles with nothing behind them. This would suggest there could be several others and the person ought to take time to consider what they might be.)
Where did we start from? What’s behind our dispute?
OTHER COMPANY (IES)
Based on the interests you (and the team) have identified, what are the next steps?
(To enhance this answer, try utilizing the Cost/Benefit Tool)
OTHER COMPANY (IES)
What are the challenges that have hindered resolution thus far?
Examples may be…
ο Present Corporate negotiation strategies
ο Indirect competition with other Party(ies)
ο Want to gain an advantage over the other party(s)
ο Present strategies have been successful in the past
ο Do not trust other party(s) to negotiate in good faith
ο See other Party(s) as using negotiations as a stalling tactic
ο Concerned about losing control, power or money
ο Senior management do not support negotiation style
ο Other strategies perceived as “weaker”
ο Reluctance to utilize outside resources / ADR professionals
ο Personal reluctance to change strategy
ο Matter is not a high enough priority to my company
What are the costs?
The costs of action or inaction are direct and indirect. Direct costs include human resources (people), financial resources (money) and time. Indirect costs also include the potential impact on relationships (personal and corporate). Consider these potential costs, and if possible, estimate the direct and indirect costs below:
Now you may again, also consider the Cost/Benefit Tool to carry your strategy forward…
ACTION PLAN – RESOLUTION CHOICES
Having worked through the issues and/or overall dispute and understanding the reasons behind them, brainstorm some possible solutions/options to the underlying reasons for the dispute to ascertain if they meet yours and the other party(ies) ‘needs’ etc.
For more on appropriate Negotiation and Dispute Resolution, listen to my podcast with Jeffrey Cohen.
Contact David B. Savage for more information on the Problem Solving Planner, the Cost Benefit [email protected]