Saturday, February 2

Agreements that stick

It truly is a lovely summer day here in Wellington, NZ.

The harbour has an emerald sheen to its unpolluted waters as large luxury liners disgorge tourists in floral shirts onto our streets to spend a small part of the $18.5 billion we will earn from visitors to our shores this peak season.

And it is with a bounce in my step that I make my way down the main street with a couple of days of solid work behind and in front of me, I can't help thinking how all is w... SCRRAAAATH!!

Out of the blue, I spy coming towards me a lawyer who I had last seen in a difficult, but in the end wildly successful, mediation about a week before Christmas.

When he reaches me he tells me with stooped shoulders that he's had a devil of a time keeping his people to the agreement they signed on the day. He advises how they have stalled at every turn and many aspects of the agreement are still to be delivered on.

Confused, I asked - how can that be?... as the image of his client claiming an unsolicited and energetic kiss from me as we closed, fills my head.

Really, I say. What more could we all have done?

I had reality tested his client all day and as the deal was coming together, I had even engineered a quite private moment with her and her business partner to ask if they really wanted to do this, was it something they could live with, how would they feel waking up tomorrow, did they want some time out on their own away from the suits....

And anyway, of all the deals in the past six months I would not have picked this one for post-mediation melancholia. I guess you never know.

How many other deals in my dark past were having trouble sticking?

Paranoia took hold... 'that mediator guy can get a deal but his durability index stinks...'

How do mediators ever know? We come into the dispute, we shake it around, we leave - who was that guy?

Is it good enough simply to wait to be told or should we be doing more to find out what's sticking and what's not?


Hennipen Mediation Group said...

As a Mediator in Vancouver I find that is is common practice amongst me and my colleagues to follow up with both parties about 15-30 days after the session to check on the status of the agreement. I usually do this once I have received payment on an invoice as it gives the parties time to settle things.

The follow up gives me insight into where the negotiations were weak or went astray. In addition, typically if a problem has arisen and the agreement is not being fully enforced I will attempt to bring the parties back in for a post agreement session to really find out what whet wrong and help them solve the problem without further headache.

Dina Lynch, said...

We probably could be more proactive in following up with clients.

I know I encourage my parties at the completion of the mediation session to consider what might fail and whether to schedule a 'check in' call. Same for my Ombuds visitors.

Taking this idea a bit further, I think there's an opportunity for a practice niche that I call- lifecycle mediation.

By that I mean, most conflicts have a 'lifecycle', a course from beginning to end and beyond. Most of us jump in later in the cylce and leave when issues look resolved. What if we stayed involved longer? What if it were part of our service offerings to contact parties at pre-determined times to guage or ease implementation and address new or changed issues?

This marketing idea has clear applications in workplace and family disputes. And, from a practice standpoint, it may mean a mediator could have fewer clients and still make a good living.

Just a thought.


Amanda Bucklow said...

Hello Geoff

This is a question I have pondered a great deal recently and in doing so I had two thoughts or even insights:

Firstly, if you are a good mediator then you necessarily build excellent rapport and trust. Yes? If so, then it is likely that the negotiated deal, even after exhaustive reality checking, 'feels right' to the parties at the time and in relation to your (the mediator's) presence.

I say this because I believe that the presence of the mediator positively provides an environment where courage and hope are likely to flourish. The result is mutual respect and even warmth and appreciation at the achievement of a settlement. (The kiss!) It is hard not to respect people who find the courage to do something they thought they never would.

There is a change when we leave the parties to get on with it. On their own they can forget their new found courage and perhaps feel less certain without the comfort of the mediator's presence which they had during the decision making process. This can lead to a reversion to previous mental states - generally doubt.

The parties may also believe that whilst we are there we are somehow 'controlling' the behaviour of the other party and keeping them 'honest'.

Thus, they fear any change or tweaking to the agreement and may start to doubt again.

The second thought was this:

I frequently observe an addiction to the conflict! I can't tell you how many times I have wondered what parties (and lawyers!) will do when this is all over! So, many years ago I decided that if I had a sense of that as a possibility, I would spend some time with the party (or parties) talking about what they will do next. Even to the point of putting together a plan. I generally do this during drafting.

As in biological life where there is no life unless there is conflict, for some they do not feel quite 'alive' unless they are in a conflict. It defines them as people.

I have said what I do in this case. What I do in the first case is encourage the parties to include a clause in the agreement which says that in the unlikely event that there are difficulties in finalising and implementing the agreement, the first port of call is the mediator. This also gives me the invitation to call or email at my instigation, to ask how things are going and if they need any further input from me. I also make a point of getting everyone's contact details at the same time. And then of course I make sure I do call or email.

The other benefit is that my 'presence' is enshrined in the agreement - like a virtual guardian.

I think it makes a difference!

kind regards

Amanda Bucklow - The Mediation Times