The two teams square off against each other this Sunday for the AFC Championship game with the winner heading on to the SuperBowl.

Commentators have positioned the Chargers as serious underdogs against the undefeated Patriots. 

What I find interesting, is the Yahoo news coverage of Belichick’s pre-game mental preparation of his players.  Apparently he has been giving them quite a lashing and emphasizing the underdogs’ achievements.

He’s been instilling fear in them so they don’t go into the game overconfident.  As a Yahoo sports article quotes:

“He put fear into us by going over everything we did wrong and everything they’ve done right the last two months,” fullback Heath Evans said Wednesday. “He was convincing,”

Belichick’s weekly servings of humble pie have become the stuff of legend around here. It’s one reason the Patriots are 17-0 and have avoided the overconfidence that has helped derail undefeated seasons for 35 years.

The players have taken it in stride, joking about the inevitable verbal beat downs no matter the margin of victory and occasionally wearing humble pie T-shirts – “be humble or be humbled.” Enterprising local bakeries have started concocting the stuff.

Yes, every coach does this, but perhaps none have done it as effectively as Belichick. Even his staunchest critics have to admit he is the absolute master. And even by his standards, players noted, Monday’s meetings were brutal.

I’ve just been introduced to a psychologist who helps athletes and also does executive coaching, Dr. Kevin Fleming.  I’m going to ask Dr. Fleming to comment on this coaching technique.

Could fear backfire?  Thus far at 17-0 it appears to be working.

More soon.

Kristina R. Haymes

Hans Hofmann (abstract expressionist)

Unresolved conflict is definitely a life or business complication.

 It drains energy and resources.  Employee conflict costs businesses thousands upon thousands of dollars.

Interpersonal conflict drains valuable energy that could be used for greater productivity or just pure joy.

Ask yourself:

1) What is going on? (can you explain the conflict)

2) How am I contributing to the problem?

3) Is the problem worth confronting?

4) Think about who, when, where and what

5) Ask yourself what you are thinking and feeling about the problem

6) prepare in advance

7) make it safe — e.g. affirm that you value the relationship or you are unclear what the other person’s intention was — but to  you it appeared to be _________ [fill in the blank] and then contrast this with your issue

8) what does this situation say about you and your place in the business, company or world?

Whether the other person responds positively or not, often times, clearing the air does wonders for simplifying your life.

You free yourself from having to carry around thoughts and feelings about this.  Once you have communicated about the problem, ask yourself if you are willing to let it go.

Or, do you need some change to occur before you will let it go?  If so, ask for what you would like to see happen.

Mediate the possibilities… simplify your conflict life.

KRH

This post is the first. 

Too often, conflict is driven not by the current issue (or what psychologists term the “presenting problem”) – which is usually just a symptom of something deeper.  When we get down to the root issues, we can more effectively figure out if a resolution is possible or how the situation can be managed. 

Today’s post will focus on one source of conflict that manifests itself at work (at home too):  failing to value others’ diversity.

Now when I use the term “diversity” I am not just referring to racial, ethnic and gender diversity.  I am referring to diversity of personalities and diversity of talent, skills and abilities.

You see, our diversity is a great source of strength.  Unfortunately, most people see others with different personalities, working styles, strengths and weaknesses and think, “If they are not like me, they are no good.”

Yet, companies become great when management is able to create cohesive teams of people who have different skills and talents that complement each other.  Can you imagine if everyone had a directive, take charge CEO type personality?  The wars and battles would be endless.

Can you imagine if everyone on the team was super anal, detailed oriented and lost sight of the big picture?  If everyone sweats the small stuff, you will likely go nowhere on the larger agenda. 

If everyone is outgoing and great at bringing in new business but unable to focus on getting the task done, where would the business be?

The fact is that we are interdependent.  In order to build something great whether at work or at home, requires us to appreciate and value our differences.  Greatness is impossible without great teams.

Failing to appreciate and value our differences inevitably leads to conflict. 

Conflict can manifest itself in different and often hidden costs to a business’ bottom line.  Some examples:

• High levels of job dissatisfaction
• Conflict over how things should be done
• Overly critical managers who fail to appreciate different styles and different strengths and different ways of doing things
• Instead of putting people to work in areas where they can shine and add great value to the business, they criticize and belittle them in their current roles or for not being like them
• High turn-over results which costs businesses hundreds of thousands of dollars
• Litigation, turf wars, power struggles, lack of cohesion
• Failure to achieve strategic goals and initiatives

What can we do about this source of conflict?

Ask yourself if you think:

1) There’s only one way of doing things;

2) Your way is the best and only way;

3)  If someone is not like you, they must not be ___ (fill in the blank: e.g. smart, capable, good, talented)…

 Do you:

4) Fail to appreciate the different gifts/talents of others?

5) Focus more on people’s shortcomings than their strengths?

6)  Look to match peoples skills and talents with the appropriate work?

7) Accept and respect others with different approaches?

Awareness is a first step.

Make a commitment today to ask yourself if you think or do any of the above.

How can you begin to value the differences around you?  How can you affirm those differences and use diversity to your advantage?

Your partner in the process,

Kristina Haymes

Ms. Haymes is an attorney and mediator passionate about helping people maximize the growth of people and profits.

A new book called, Get Rich, Stay Rich, Pass It On (The Wealth-Accumulation Secrets of America’s Richest Families) by McBreen & Walper reveals two keys to perpetual wealth:

(1)  Continually Innovative Entrepreneurship — running or investing in a company that maintains its edge over the long term; and

(2)  Owning income producing real estate — assets that can earn money today and be passed down to heirs.

The key, of course, is to do both.

Not any easy task, but this book purports to show you how others have done it.  Based on over ten years of research, the conclusions are sound.

By creating a family vision and mission that includes wealth creation for future generations and a long-term focus, family businesses can be legacies for years to come.

Dictionary.com defines perspective:

5.	the state of one’s ideas, the facts known to one, etc., in having a meaningful interrelationship: You have to live here a few years to see local conditions in perspective.

6.	the faculty of seeing all the relevant data in a meaningful relationship: Your data is admirably detailed but it lacks perspective.

7.	a mental view or prospect: the dismal perspective of terminally ill patients.

 Perspective is a state of being, a faculty we possess.  As you can see it involves vision and what we see — namely, all the relevant data, facts known to us.

 When we have a problem our vision narrows.  The scope of the field we are assessing diminishes.  We lose the meaning and interrelationship of data.

I lost perspectively recently.  I was facing a problem that at the time seemed insurmountable.  I thought that I was stuck.

Fortunately, a wise counselor knew how to help me gain perspective again.  You see, even those of us who help provide perspective to others, lose it ourselves.  No one is immune.

The first step out is to challenge the underlying belief.

An effective way to do this is with questions.  For example, someone describes their problem to you and the conclusion that they are drawing from the available data.  You see it is not the facts or the data that gets us in trouble — it is our interpretation of the data — the conclusions that we draw from the data.  Our perspective.  

So my wise counselor hearing my conclusion asked me WHY?

Why?  Why are you saying that A +  B = D?  Is it possible that A + B = C, X, or Y?

Skeptical at first, I opened myself up to the possibility that my conclusion was not the only one.

Indeed, as I engaged in further investigation and stepped outside of my conclusion, I saw a world of possibilities.

You see when I lost perspective, I lost hope.  I didn’t think there was a way out.  My vision narrowed and my state became dismal.

Once my eyes were opened to the world of possibilities I became energized again.  Even though part of the rationale for my initial conclusion is still valid, that is, there is no perfect solution — there are so many possible solutions beyond my own myopic and depressing conclusion.

I have been empowered again, to take charge of my destiny, to hope and believe in a better tomorrow.

And you wondered about the power of mediation?  The power of an outsider providing perspective.  It doesn’t have to be in formal mediation, it can be from wise counsel.

We all can lose perspective when we have problems.

Mediate the possibilities today!

Wishing you a world of wonderful possibilities in 2008.  Challenge your conclusions.  Challenge your thinking.  Challenge the way that you are interpreting the relevant data as it relates to your problems.

Gain new perspective on old problems.

Blessings to you and yours for perspective and hope in the new year.

Kristina Haymes

She was mortified by the entire situation.  The Vice President of Sales, *Mike*, in another department would go out of his way to locate her.  He would come by her work station, ogle her, running his eyes up and down her body.  Making comments about her appearance and say to her, “you look good today.”  Or, “You must work out, you look really tight.”  One time when she was at the copy machine he brushed his body against hers as he walked by.

Julie reports that it was not so much what he was saying but the manner in which he said it and when he brushed up against her that really was the last straw.

Julie was afraid to say anything to Mike for fear of reprisal. He had a reputation as a party guy that was well connected with the powers that be at the company.  He also was good friends with her manager and she didn’t want to lose her job or have any adverse employment action. 

Yet, at the same time, she felt increasingly uncomfortable at work and she wanted the behavior to stop.  She was afraid to tell her husband about it for fear he would take matters into his own hands.

What to do?

Initially, she did not want to report the situation to the HR department because she was concerned about confidentiality and word getting out and she was afraid that *Mike* would take revenge if she reported his dirty deeds. 

Julie really wants to keep her job, the economy is slowing in her industry and who knows how long it would take her to find another job.

Plus, she has heard that HR does a full fledge investigation and she didn’t want to make a big deal of the situation.

She confides in one of her co-workers, Sally, who happens to know the folks in HR.  Sally convinces her to talk to the Director of HR about the situation and to ask her to keep the entire situation confidential.

The HR director explain to Julie, that sexual harrassment is illegal and the Company takes complaints seriously.  Ms. Director also explained that they have an obligation to investigate but that sometimes an early intervention such as mediation can be used to resolve the situation.  She explained that the mediation process would be confidential.

Julie liked the idea of an outsider being called in and felt more comfortable with an outside (female) mediator that was not associated with the Company.  So, the parties went forward with mediation.

The mediator spent time talking with the Company’s HR Director and also the in house legal counsel to see how the Company implemented its anti-harrassment policy and how it had addressed problems in the past.  Because this situation was being addressed early on before the problem had festered, the parties each felt comfortable in a mediation session by themselves.

As it turns out, Julie and others had seen Mike flirting with women at office parties.  She had also heard through the grapevine that he had had “relationships” with his reports in the past.  Mike was turning out to be a liability to the Company.  Yet, he was also a high producer

The mediator spent time alone listening to Julie’s point of view and then also discussing the situation with Mike and hearing his point of view.  The mediator coached each party prior to holding a session with everyone in the same room.

It also turned out that Mike, while initially a bit defensive about the situation and angry that “Julie was overreacting,” came to understand the seriousness of the situation.  He reported that he just likes to “flirt” and make people feel good.  He didn’t mean any harm.

After talking with the mediator, Julie felt like she could discuss the situation with Mike.  She gathered up her courage and when they met with the mediator all together, told him that she didn’t like the way he looked at her, thought his words were inappropriate and was very angry when he brushed his body against hers.

Mike, to his credit, after being coached before the joint session, listened without becoming defensive.  After encouragement (in private session with the mediator) he reflected upon how he would feel if someone was treating his daughter or wife that way.  He took a step back and looked at his behavior instead of trying to excuse it and blame Julie for “making a big deal out of nothing.”

Plus, he realized that he could very well lose his job.  Even if he does bring in millions of dollars of business, if he exposes the Company to multiple lawsuits, he could get canned and as a supervisor face individual liability.

He decided that he would rather reform his work behavior than have to worry about that.

He apologized to Julie, sincerely, acknowledged that his behavior had been inappropriate and wrong.  He was sorry he made her so uncomfortable, and vowed to treat her with the utmost respect in the future.

Julie couldn’t believe it.  It took all her guts to be honest with Mike.  She really didn’t want to quit or lose her job or to resort to litigation.  Mike was a smart guy and had just become accustomed to flirting and playing the field.

Mike agreed to attend sensitivity training and to change his ways.  The Company implemented an accountability program where Mike was assigned a colleague who would confidentially check up with him on a routine schedule.

Julie was also asked to speak up either to the offender or to the HR Director if anyone did anything inappropriate in the future. 

Julie reported that she felt empowered by the experience and that she could, in fact, take control of her work life and she was able to let go of some of the FEAR that was driving her.

Not all situations turn out this well.  But when the parties are willing to be honest with themselves and a confidential process is available with a neutral outside mediator, disaster down the road can be averted.

Your partner in the process,

Kristina Haymes

Kristina is an employment lawyer and mediator working in New Jersey and New York area that helps parties resolve sexual harassment and other employment disputes through mediation or neutral fact finding investigations.

Tune in next time for another case study that didn’t go so well.  Let’s see what happens when people decide to fight and engage in denial.

*Disclaimer, no promises are made in connection with this blog.  It is meant for education and information purposes only.  I am not your lawyer and no attorney-client relationship is established.

One question I ask is what their “hot buttons” or triggers are.

We all have triggers or “buttons” that when pushed set us off.  Triggers are conditioned responses based upon past experiences.  Sometimes we may not be aware of what sets us off, or why we reacted so strongly to what the other party said or did.

Without going into all the science behind it, there is a memory embedded in your brain based on your past positive and negative experiences.  The more powerful the experience (in emotional intensity) the more neural connections.

Awareness is an important first step.

If you can stop the automatic response when someone has pushed one of your triggers, you can gain control of yourself and your emotions.

You can choose to respond differently and change the pattern.  You can rewire yourself!

Isn’t that empowering?  It is.

Next time your buttons are pushed.  Stop, ask yourself what’s going on.  Where do your thoughts immediately go?

Knowing your triggers and preventing your automatic reaction can empower you to stay in control of yourself and the outcome of your negotiation, mediation or conflict situation.

Your partner in the process,

Kristina Haymes

Before going into a negotiation, Ury reminds us to have a “plan B.”  He and Fisher called it the BATNA in Getting to Yes, your “best alternative to a negotiated agreement.”

Know your options.  They might look like this:

1) option A:  end the business relationship;

2) option B: sue the bastard! (aggressive response that leads to a rupture of the relationship and more stress)

3) option C:  look for other opportunities (business, employment, etc. as the case may be).

Spend some time exploring your options and your plan b and c and d.

You will enter any negotiation with more calm and poise knowing that you have alternatives if the other side decides to play hard ball.

krh

If you think it gets better the second time around, guess again: 60% of second marriages end in divorce.

Divorce mediation has grown over the past 20+ years.  A divorce mediator assists couples (with or without legal representation) resolve conflict over parenting issues, child support, division of marital assets and any alimony.  The mediation process can produce a settlement of the money issues, a parenting plan and the papers for finalizing a divorce.  Mediation can save the couple time, money and energy compared with the draining litigation process. 

More importantly, mediation can help improve the couples’ communication and relationship where litigation is guaranteed to enhance animosity pitting the couple against each other.  Our legal system was not created for the purpose of helping people divorce.  It is not designed to do that.  The adversarial system is ill-equipped to handle couples that want to throw in the towel.

Yet, before we get to those issues — the money involved in breaking up the marriage — what about the marriage itself?  What about the relationship and the children (if there are any)?

What if, as statistics appear to indicate is quite common, one of the spouses does not want to get divorced?  What then?

Most mediators bypass this issue altogether.  Yet, isn’t this the first core conflict to be resolved?  In most jurisdictions, a spouse can get a divorce through the legal system even if the other spouse does not at first agree (after being sued for divorce and the expense associated therewith, not to mention the social pressure — what self respecting person wants to stay married to someone who is suing them for a divorce?)  Many mediators/lawyers have been overheard saying to a party:

“Why would you want to stay married to someone who [doesn’t love you] or [doesn’t want to be married to you?]  Talk about adding insult to injury.

Yet, the reality is that our feelings are incredibly transitory.  Don’t tell me that I am the only one that can go from moments of marital bliss to moments of such, dare I say, misery? 

The beauty and power of love can easily turn to intense hatred. 

The vulnerability and power of the marriage relationship and the depth of feelings involved provides an environment ripe for such emotional extremes.

Many couples come to the divorce decision out of desperation.  They want to run away from the pain, unhappiness and misery of a marriage relationship that isn’t working. 

They want to run toward a future that is sunny and bright and if the spouse has caused such misery than even being alone would be better, right?

Maybe.  Maybe not.  The grass is not always greener on the other side; a trite saying, or does it contain truth?

I do not do divorce mediation, but if you are interested in trying mediation to see if your marriage can be saved, check out Stan Posthumus’ web site he does this work:  www.beyondwinwin.com. 

He takes an educational approach to mediation and working with couples on the brink of divorce.

Your partner in the process,

Kristina Haymes

Family business disputes are particularly appropriate for a mediation or a conflict management intervention because the mix of personal issues, family relationships, family history, business issues and all the rest create anxiety and heated emotions on the personal and professional level of unprecedented proportions.

I was re-reading through Patrick Lencioni’s book The Five Dysfunctions of a Team and I was thinking about the application of the dysfunctions to the family business team and other closely held business partnerships.

Lencioni’s premise is that businesses succeed when they operate as a well functioning team.  The book goes through a “fable” about a high tech company in California that has a new CEO and her teaching the business team about the five dysfunctions.  It is an interesting and informative read.

Business leaders can learn a lot from the modeling of an effective CEO as change agent and leader demonstrated in the book.

The CEO diagrams the 5 dysfunctions of a team in a pyramid.  Each dysfunction (or in a healthy team, each element) builds on the next.

The five dysfunctions are (from the base up in ascending order):

5.  Absence of Trust.  Trust is the foundation of teamwork.  Absence of trust is characterized by invulnerability — people on the team are not honest with each other.  There is no healthy debate.  Members don’t admit mistakes, weaknesses and concerns without fear of reprisal.

In Lencioni’s fable the team did not trust each other.  There was no healthy debate about issues.  No sharing of strengths and weaknesses.

In family businesses trust is perhaps even more critical because family members often know each others’ strengths and weaknesses better than anyone.  Family members have personal history that can affect the maintenance of trust.

For example, a sibling may be stuck with old memories.  “When I was seven Johnny stole my piggy bank, so I suspect he’s stealing money from the business.” 

Maintaining trust in a family business situation requires members to let go of the past, communicate well and forgive.

4. Fear of Conflict.  As we mediators say, conflict is inevitable.  When people are afraid to engage in conflict there is false harmony.  The CEO in the fable talks about how conflict will make the meetings interesting.  She is quick to point out that she’s talking about the need for constructive conflict.  She noted the team had tension characterized by passive, sarcastic comments.  People were not comfortable expressing conflicting ideas.

In an internal business environment you don’t need consensus.  The role of the leadership is to make decisions.  But there needs to be a forum where people can express their ideas and have them considered.  Team members will feel valued when their point of view is heard and esteemed.

In the family business context, fear of conflict is also heightened.  We all naturally take from our families of origin the patterns we learned about how to respond to conflict and deal with people into our adult lives.  Without reprogramming and retraining, family members will carry on the conflict dysfunction of previous generations.

3.  Lack of Commitment.  Lack of commitment is characterized by failure of team members to buy-in to the team decisions.  The premise here is that people will buy-in once they’ve had a chance to weigh-in. 

Making decisions more of a collaborative process where each division of the company provides input and ideas are vetted leads to people taking ownership over the decisions.  Ultimately, as discussed above, the leaders make the decisions, people are likely to be more committed if their ideas were seriously considered and perhaps incorporated.

In the family business context, lack of commitment can be exacerbated because you often have some members actively involved in running the business and other members who aren’t.  The lack of buy-in is even greater when certain members are removed from the day to day operation of the business.  Such members are less likely to feel like they have a voice or that their ideas are heard.  Or they may have so little information about the business that they would not know how to provide valuable input.

They may feel alienated and this enhances their lack of commitment.  Conversely, the active family business members may feel frustrated by the opposition and lack of commitment of the non-active members.  They may resent what they view as inappropriate objections. 

It is important that regular systems of communication are instituted to keep family business members in the loop and to foster commitment to shared vision, mission and business goals.

2. Lack of Accountability.  No one objects to low standards.  Perhaps because the team isn’t operating as such, there isn’t shared commitment about team goals and objectives.  People feel uncomfortable because there’s a lack of trust providing honest feedback and accountability.

In the family business context, this problem is particularly tricky.  On the one hand, family members may feel more comfortable providing accountability and honest feedback to family members because there is a greater appreciation for the shared interests.  Often there may be more trust and openness in family relationships than with strangers.

On the other hand, where there are multiple generations, or strong directive personalities, providing accountability in the family business may be difficult.

Family businesses also face the additional challenge where, for example, a father or other older member must hold sons/daughters accountable.  Children or grandchildren may expect special privileges or take the business for granted.  Likewise the younger generation may feel intimidated (or like they are being disrespectful) if they attempt to hold older more experienced members accountable.

Clear communication about objectives and exploring the openness of members to accountability systems is an important first step. 

1.  Inattention to results.  This happens when team members are focused on their ego and status.  When team members care more about how many goals they scored and disregard whether or not the team won the game, the team is in trouble.

For example, when a team focuses on results instead of individual recognition, the team will move resources from one department to another to make sure each department meets its objectives.  With the results oriented approach, the CEO states that everyone becomes responsible for each component part.  Everyone is responsible for sales, marketing, technology, product development, finance and so on.

When the team works together to create what the CEO called an “overarching objective” then they can work together to achieve it for each of the component parts.

In the family business context this potential dysfunction can be characterized by other factors besides ego and status.  Inattention to results can stem from apathy (perhaps shares were inherited and not earned) and a host of other factors.

Focusing the family business on creating a compelling vision for the family and its business can help family members become interested in the effort to achieve those results.

Even if your focus is on philanthropy results should matter. 

Family businesses can be powerful alliances that produce profits and family legacy. 

Think about how your family business may be dysfunctional and how you can take steps to change.

Your partner in the process,

Kristina Haymes

High Tech Co.’s Risky Losing Strategy 

*All names and parties are fictitious

High Tech Co. just bought a small start-up company that had some cool technology that it wanted to add to its repertoire. 

Along with the technology, High Tech Co., also inherited an employment problem.  The small start-up company was run by the owner who also happened to be the chief technologist.  The owner had hired a salesman who earned a small base and was paid largely on commission.  In addition, start-up company provided the salesman with stock options.  Salesman, who no longer works at start-up (he went to work for a competitor) is claiming that the owner of start-up wrongfully denied him his stock options and that he is owed outstanding commission on sales.

The CFO of High Tech Co., finds this new liability has landed squarely on her desk.  High Tech Co. hires outside counsel to handle the matter.  After some investigation, High Tech Co. discovers that the former owner claims that all commission had been paid and he had the documentation to prove it.  The former salesman, however, also provides documentation which tends to prove that commission is still owed on two separate accounts.  One sum for recurring revenue from an account he was credited with and another sum for revenue for new business.

Former owner claims that salesman almost lost the deal for the start-up co and that he played absolutely no role in securing the new business and is not entitled to any commission for one deal.  On the other account, High Tech Co. discovers that the employment contract permits payouts for a two year period.  High Tech Co. thinks it has a good statute of limitations defense on this account since suit was delayed.

With regard to the claim for stock, former owner argues the stock never vested and has now been bought out by High Tech Co.

High Tech Co. reviews the documentation and concludes that the former salesperson was in fact due some commission on one of the accounts. 

The parties end up in mediation.  At mediation, the former salesman claims he wants $100,000 to settle the case.  He figures the former commission is roughly $30,000 plus he wants interest and some money for his stock.

High Tech Co. values the case around $30,000 (acknowledging he is owed something for commission earned) and that he may not be entitled to interest and that it thinks it can win on the statute of limitations argument for part of his claim.

Unfortunately, the mediator alienates the CFO and the outside counsel for High Tech Co. and the mediation goes nowhere beyond the parties’ initial offers.

The parties return to litigation and continue discovery.  High Tech Co. takes plaintiff’s deposition and racks up more legal bills.

High Tech Co. moves for summary judgment thinking half of the case should be thrown out as being time barred (filed past the statute of limitations - parties only have a certain period of time to bring a legal claim).  Former salesman, however, certifies that the former owner of start-up represented to him that he would be paid.  He argues that High Tech Co. is estopped from arguing his claim is time barred as the owner made representations to him upon which he relied regarding making him whole.

The Judge sides with Plaintiff Salesman and summary judgment is denied holding High Tech Co. is estopped from asserting a statute of limitations defense.

As the case steadily marches toward trial, realizing it has exposure, High Tech Co. reinitiates settlement conversations with Plaintiff Salesman. 

The parties contact a new, more effective mediator and the case settles for $200,000.

At the end of the day High Tech Co. spent $200,000 on legal fees defending a case that it could have settled in an early mediation for $100,000 (or likely a little less).  Total loss to High Tech Co. of $400,000.00

Employment Litigation Case Study — Lesson –

the price of settlement with a plaintiff will never be cheaper than it is early in the case.  Even if High Tech Co. had succeeded in getting half of the claims thrown out on summary judgment, it is unlikely salesman would have settled later for less than his initial offer as the other part of the case was still alive.  Given that he had a decent argument on the stock claim and on the commission claim, chances are he would get more at trial (including pre-judgment interest).

The cost of discovery and summary judgment in legal fees was greater than the amount of the early settlement figures involved.  End result, not a good business decision for High Tech Co. 

Good lawyers look out for the best interests of their clients.  It is natural that lawyers tend to think the chances of success are greater than they really are (cognitive biases take over).

A good mediator can help all parties evaluate the risk involved and see if there is a solution that will fit the problem.

Your partner in the process,

Kristina R. Haymes

Kristina is an employment lawyer and mediator helping parties resolve employment disputes in New Jersey, New York and California.  Go to www.kristinahaymes.com for more information and to schedule a case.

Today I discovered another mediator’s blog, Christopher Annunziata of the CKA Mediation and Arbitration Blog, and his posts about the power of apology in mediation.  CKA blog pointed to an excellent article about apologies entitled The Art and Power of an Apology by Sarah Kellog published by the DC Bar.  Kellog distills the research on what makes a good apology:

What Makes a Good Apology?
Sociologists and psychologists say that vowing to do better, along with a certain amount of sacrifice on the part of the confessor, may be the secret to success of a great apology. It also may explain why in the midst of personal upheaval individuals may choose a meaningful apology over a cash settlement or a prison term for the offender.

“An apology, no matter how sincere or effective, does not and cannot undo what has been done,” wrote author Nicholas Tavuchis in his 1991 book, Mea Culpa: A Sociology of Apology and Reconciliation. “And yet, in a mysterious way and according to its own logic, this is precisely what it manages to do.”

Not every apology is guaranteed to elicit the desired results. An apology that seeks forgiveness without humility, remorse, and a commitment not to repeat the offense is likely to fail, psychologists say. Any dissembling or defensiveness can be the kiss of death for an apology.

So what makes a good apology? Everyone has his or her own recipe for it, but there is a bit of overlap. Psychologists agree that the apology must first acknowledge the mistake and whatever pain might have been caused. In addition, it must accept responsibility for the error, along with providing assurances that the mistake won’t be repeated. Experts say for corporations the apology should include a vow to correct systemic problems that may have led to the mishap in the first place.

The take away is an apology should be sincere, come from a humble heart (you have to be humble in order to acknowledge errors) and be coupled with action (systemic changes designed to prevent re-occurrence) and sometimes with compensation for the person harmed.

In personal relationships, a sincere apology coupled with a plan to change behavior can change how one feels about past events.  As humans we more often remember how others made us feel than what they said or what they did. 

It’s true an apology can be viewed as an admission of guilt (which in the legal system makes people wary of being dragged into an expensive lawsuit).  Yet, within the confines of a confidential mediation, an apology can be very effective in an effort to make amends.

Mediate the Possibilities today!

Your partner in the process,

Kristina Haymes

Kristina Haymes is a commercial, employment and family mediator working in New Jersey, New York and California.  Go to www.kristinahaymes.com for more information.