Five Mediation Techniques Every General Counsel Should Have in Their Toolbox
General Counsels are often called on to assist with conflict management and resolution. These challenges sometimes stem from external factors like the appearance of an unfavorable story in the press or a newly filed lawsuit. In many cases, however, the stresses are internally created, such as budding employment disputes. Some conflicts are even directly catalyzed by the General Counsel’s reasoned legal counsel, namely the advice that management “just does not want to hear.” General Counsels who master the techniques employed by professional mediators are often able to resolve these challenges.
1. Trust –The most important trait a successful mediator possesses is the trust of the disputing parties. Successful General Counsels have gained the trust of the management of their organizations and are able to leverage that trust to resolve conflicts.
2. Empathy – Successful General Counsels listen well. They validate and encourage, which builds trust and credibility with the parties, and enables the parties to open their minds to potential mutually acceptable resolutions to the conflict at hand.
3. Reality Testing – Both parties to a dispute are usually convinced of the “truth” of their views and positions. A General Counsel mediating a dispute needs to be able to encourage each individual to “Reality Test” their views, or put another way, to get each side to fully appreciate their weaknesses. In the situation where management does not want to accept the General Counsel’s view of the law, sophisticated reality testing through discussion of potential scenarios, and the use of other similar techniques, is the key to opening up a productive discussion with management.
4. Joint Session v. Caucus – Successful General Counsels have figured out who in their organizations should be present at any given meeting. In particular, when dealing with a dispute or potential dispute, they know when it is best to caucus privately with the individuals and when a joint session is needed, allowing each party as the opportunity to express their views directly to the opposing party.
5. Logrolling – Logrolling is the technique wherein a successful mediator accurately identifies the true needs of each party and works to facilitate a resolution of the conflict in which each party has its needs met. General Counsels who have the ability to identify these nuanced “win-win” structures are able to successfully mediate most of the challenges that present themselves to a General Counsel participating in the ongoing commercial life of a business organization.