Decisions between alternatives can be, in my opinion, the most mentally exhausting of
the cognitive functions, and decisions about how to address a dispute are often the most important moments in affecting the situation. Choosing the wrong ADR process could waste resources or further
and trench the parties in their dispute or
feelings of hopelessness. In my last blog post, I argued that the dispute resolution professionals should offer a continuum of services and allow market forces to decide which process should address which dispute. Now, let's look at how that choice will be made in relation to co-resolution.
Co-resolution offers disputants facilitated negotiation (as the co-resolvers guide the discussion and negotiation to resolution) and also personal advocacy and/or coaching in communication and negotiation (as each co-resolver assists a separate party in participating optimally in a cooperative negotiation). Parties comparing co-resolution to mediation and litigation will consider it in terms of the cost of two ADR professionals versus the cost of one mediator (offering facilitated negotiation only) versus the cost of legal advocacy (offering the application of legal rights at the cost of potentially-escalating litigation). So, how is this comparison weighed?
People do not make choice in a
vacuum. According to Dan Ariely, "[h]umans rarely choose things in absolute terms. We don't have an internal value meter that tells us how much things are worth, rather we focus on the relative advantage of one thing over another and estimate value accordingly" (Predictably Irrational, 2008) Thus, every decision is defined by the available
alternatives. Furthermore, Ariely and other behavioral economists found that, when confronted by three choices, people largely opt for the middle choice, considering it to be better than the cheapest option but more reasonably-priced than the most expensive option. This is why stores will offer products in a continuum of increasingly-expensive features and quality. Fun fact: by offering one disproportionately (but not outlandishly) expensive dish, a menu will motivate restaurant patrons to purchase more-expensive meals than they would have ordered had the lavishly expensive option not been present.
A note of caution about offering choices--too much choice can backfire. Ariely also notes that, when confronted with the choice between 26 gourmet brands of
peanut butter and only 6, people are much less likely to buy peanut
butter at all (they are likely overwhelmed and avoid the exertion of mental energy by not making a choice). Thus, having a mere handful of
possibilities makes the decision-making process easier.
So, how does this affect you, an ADR professional offering co-resolution to potential clients?
One problem addressed by economics is how to broaden the market for
goods and services. In other words, "How can I sell a hamburger for $4.00 but
also serve customers who only have $3.00?" The answer is to offer a
basic hamburger for $3.00 while also offering a cheeseburger for $4.00.
Because that thin square of cheese-substitute was not purchased with a
one-dollar bill (despite the fact that both are known as "singles"),
this approach optimizes the number and satisfaction of customers.
As I concluded in my previous blog post, dispute resolution professionals
should offer disputants a variety of different processes to address
their interpersonal problems. This benefits the disputant by providing them with the ability to choose a
process that will most effectively resolve their problems, and it
benefits the dispute resolution professional by opening their services
to more disputes. If, for example, a dispute resolution professional offered
mediation and/or collaborative law, and was approached by a dispute that
needed more involved assistance than is offered mediation but was not
complicated enough to merit, or resourced enough to afford, the assistance
offered in collaborative law, then perhaps a middle-ground approach like
co-resolution would be the preferred choice of the disputant.
Applying these lessons, mediators could broaden their services and address more disputes by offering co-resolution. To illustrate how this would apply to attorneys, I will
use myself as an example. I operate a law office in which I offer
litigation (which is expensive and often inappropriate for personal,
largely non-legal disputes) and mediation (which suffers the intake
issues I described two posts ago). Because I do not offer a process for
addressing personal, non-legal problems, these situations will remain
unaddressed and my practice area remains narrow. If I had a partner
co-resolver in my office and could open my practice to dealing with
these as well, my clients and my practice would benefit.
And, if disputants are offered mediation ($), co-resolution ($$), and litigation ($$$), they are likely to choose co-resolution.
4.20.2014
The Economics of Co-resolution and its Place in the Field of ADR
[This post is a response to the questions, "What disputes should be addressed by co-resolution, and which disputes are more appropriate for other processes?" and also, "Why should disputants opt for two co-resolvers over one mediator?"]
An economist would gauge the usefulness (or "utility" as they would call it) of a dispute resolution process by the circumstances and price at which people will pay money for it. Admittedly, gauging warm, soft, human systems with cold, hard cash might not appear to be the best fit (can you put a price on a hug?). While it is impossible to place a gratuity on gratitude, Economics could lend a few tips, which the field of ADR isn't doing well enough, economically, to ignore.
So, to follow up my previous blog post on how mediation is offered and used within the overall market, let us now use very basic economic analysis to consider how co-resolution should be offered and used.
First, if a dispute can be resolved quickly and efficiently with the help of a single mediator, then co-resolution would not be necessary or useful to those disputants (why pay for two ADR professionals when you could resolve the issue with one?). On the other hand, if a single mediator cannot resolve a dispute (because, for example, the parties need the assistance of personal coaching) then hiring one mediator would be a waste of resources and a team of co-resolvers may be better suited for the situation. Also, if one mediator would take a long time shuttling back-and-forth between the parties, then two co-resolvers might be able to reach a resolution more quickly by simultaneously caucusing with their respective parties, prepping them for the negotiation, and then efficiently communicating and cutting to the bottom line when the four-way negotiation resumes.
[Note: Susan and I have resolved a number of cases in co-resolution in which we knew to a reasonable degree of certainty, based on the conduct of the parties and our experience with mediation, that the cases would not have settled or would not have settled nearly as quickly had they been handled by a single mediator. And, to be fair, Susan and I have also handled a number of cases in which co-resolution was overkill--the parties already communicated effectively and had the case largely resolved already.]
At the other end of the spectrum, if cooperative advocacy and coaching in effective communication and negotiation is not enough, and the parties need the advice of independent attorneys, financial specialists, and child-development experts, then collaborative law and the collaborative team approach would be the more appropriate ADR process. And, of course, cases that cannot afford all of this assistance will not benefit from the availability of this process and will need a cheaper, more efficient alternative. In fact, despite the enthusiasm of its proponents, collaborative law has experienced only limited use by only the most well-resourced couples, according to Deborah Cantrell in her article "The Role of Equipoise in Family Law," Journal of Law and Family Studies, vol. 14, page 65 (2012).
As another aside, while co-resolvers will not be able to provide the parties with legal advice (legal advice can only be given by INdependent advocates), they can become familiar with any substantive area of knowledge that could benefit their parties. As a divorce attorney, I find it necessary to understand basics in child development and financial planning and would think that two co-resolvers could provide expertise and knowledge in these areas and efficiently provide the non-legal benefits of the four-person collaborative team. For example, a co-resolver could use their partisan position to offer suggestions and ideas about parenting plans when their party would benefit from this input.
In fact, like private arbitrators, co-resolvers can become experts in the subject matters they address, coaching and advocating for their parties with knowledge about more than just effective communication and negotiation (serving as substantive experts as well as procedural experts).
In conclusion, I want to make it clear that I do not intend that co-resolution "replace" existing dispute resolution processes such as mediation and collaborative law. Each of these processes has its appropriate place in the field of ADR, and each dispute should be directed into the process that will most effectively guide it toward resolution. I suggest that the method by which we conduct disputes to their best-fitting process is by offering all of the options and their associated prices--from mediation ($) to co-resolution ($$) to collaborative law ($$$$)--and allowing the parties and dispute resolution professionals to gauge the level of assistance that the dispute will require.
An economist would gauge the usefulness (or "utility" as they would call it) of a dispute resolution process by the circumstances and price at which people will pay money for it. Admittedly, gauging warm, soft, human systems with cold, hard cash might not appear to be the best fit (can you put a price on a hug?). While it is impossible to place a gratuity on gratitude, Economics could lend a few tips, which the field of ADR isn't doing well enough, economically, to ignore.
So, to follow up my previous blog post on how mediation is offered and used within the overall market, let us now use very basic economic analysis to consider how co-resolution should be offered and used.
First, if a dispute can be resolved quickly and efficiently with the help of a single mediator, then co-resolution would not be necessary or useful to those disputants (why pay for two ADR professionals when you could resolve the issue with one?). On the other hand, if a single mediator cannot resolve a dispute (because, for example, the parties need the assistance of personal coaching) then hiring one mediator would be a waste of resources and a team of co-resolvers may be better suited for the situation. Also, if one mediator would take a long time shuttling back-and-forth between the parties, then two co-resolvers might be able to reach a resolution more quickly by simultaneously caucusing with their respective parties, prepping them for the negotiation, and then efficiently communicating and cutting to the bottom line when the four-way negotiation resumes.
[Note: Susan and I have resolved a number of cases in co-resolution in which we knew to a reasonable degree of certainty, based on the conduct of the parties and our experience with mediation, that the cases would not have settled or would not have settled nearly as quickly had they been handled by a single mediator. And, to be fair, Susan and I have also handled a number of cases in which co-resolution was overkill--the parties already communicated effectively and had the case largely resolved already.]
At the other end of the spectrum, if cooperative advocacy and coaching in effective communication and negotiation is not enough, and the parties need the advice of independent attorneys, financial specialists, and child-development experts, then collaborative law and the collaborative team approach would be the more appropriate ADR process. And, of course, cases that cannot afford all of this assistance will not benefit from the availability of this process and will need a cheaper, more efficient alternative. In fact, despite the enthusiasm of its proponents, collaborative law has experienced only limited use by only the most well-resourced couples, according to Deborah Cantrell in her article "The Role of Equipoise in Family Law," Journal of Law and Family Studies, vol. 14, page 65 (2012).
As another aside, while co-resolvers will not be able to provide the parties with legal advice (legal advice can only be given by INdependent advocates), they can become familiar with any substantive area of knowledge that could benefit their parties. As a divorce attorney, I find it necessary to understand basics in child development and financial planning and would think that two co-resolvers could provide expertise and knowledge in these areas and efficiently provide the non-legal benefits of the four-person collaborative team. For example, a co-resolver could use their partisan position to offer suggestions and ideas about parenting plans when their party would benefit from this input.
In fact, like private arbitrators, co-resolvers can become experts in the subject matters they address, coaching and advocating for their parties with knowledge about more than just effective communication and negotiation (serving as substantive experts as well as procedural experts).
In conclusion, I want to make it clear that I do not intend that co-resolution "replace" existing dispute resolution processes such as mediation and collaborative law. Each of these processes has its appropriate place in the field of ADR, and each dispute should be directed into the process that will most effectively guide it toward resolution. I suggest that the method by which we conduct disputes to their best-fitting process is by offering all of the options and their associated prices--from mediation ($) to co-resolution ($$) to collaborative law ($$$$)--and allowing the parties and dispute resolution professionals to gauge the level of assistance that the dispute will require.
4.16.2014
Intake Issues: Problems with Initiating Cooperation in Mediation (and How Co-resolution Can Help)
Why is it that people in crises run to attorneys and spend an exorbitant amount on litigation before inevitably talking to each other to settle their differences (and if they don't have the money to throw away on litigation that will largely not occur, then they often simply don't talk or settle their differences)? Bernie Mayer asked this question in Beyond Neutrality (Jossey-Bass, 2004) ten years ago, arguing that the members of the public know about mediation and, despite this, take their conflicts to advocates before negotiating.
Why is this? I would argue that mediation and litigation (another blog post) each face very important "intake issues." These are problems in initiating cooperation that bring people to engage in destructive escalation of conflict before seeking cooperation.
The intake issues in mediation are the reason that mediation continues to be an unprofitable field in spite of what is a significant and system-wide need for facilitated negotiation. Basically, mediation is a great process, but it is offered to the public in, what I argue, is a failed business model. Consider...
In order for a mediation to begin, two sides of a dispute must:
1. Recognize that they are in a conflict (many people react to the unpleasantness of conflict with avoidance and denial, and often only one party is feeling the pain of conflict and cannot motivate the other side to admit that there is a problem),
2. Realize that their best option for addressing the conflict may be a negotiated outcome (many people in conflict have a skewed perspective of the situation, seeing only the positives on their side and the negatives on the other, and are therefore interested and confident in attacking the other side),
3. Reach the desire to sit down with the other disputant (many disputants do not want to address the conflict with the other party because dealing with the conflict or with the other side directly is painful--I am always surprised at how parties who are in constant communication do not discuss the conflict between mediation sessions and in the lobby before and after a mediation), and
4. Agree on a mediator and agree to split the costs of that mediator.
These four steps are nearly impossible to achieve. If people are high-functioning enough to jump through these hoops to get to mediation, they are likely able to talk to each other to resolve or prevent conflict without the assistance of a mediator.
So, what happens? Usually one party gets fed up with the conflict, approaches an advocate, attacks the other side, the other side runs for protection to their own advocate to counterattack, and then both side fight violently until a judge or their dwindling bank accounts motivate them to sit down with a mediator. If one disputant runs to a mediator first, the mediator then needs to contact the other disputant (who is in denial/conflict-avoidance mode) and convince the other disputant to come to the table from a position of impartiality.
How can co-resolution help? An attorney, mediator, or court-staff approached by one disputant can offer co-resolution (telling the disputant that they will help them with personal negotiation and communication coaching) and then that co-resolver's partner (the second co-resolver) can contact the other disputant and tell them what the first disputant is alleging/planning. Then, when that second disputant inevitably reacts by expressing their side of the conflict, the second co-resolver can express empathy and explain the services he or she can offer the disputant in effectively persuading the first disputant of the arguments/positions/interests they are expressing.
People like advocates--especially people in conflict (they will cling to this assistance at the mere offer of it). If you are an advocate, court employee, or mediator, consider offering co-resolution as an option for cases that are not appropriate for litigation but that cannot be talked into mediation.
Why is this? I would argue that mediation and litigation (another blog post) each face very important "intake issues." These are problems in initiating cooperation that bring people to engage in destructive escalation of conflict before seeking cooperation.
The intake issues in mediation are the reason that mediation continues to be an unprofitable field in spite of what is a significant and system-wide need for facilitated negotiation. Basically, mediation is a great process, but it is offered to the public in, what I argue, is a failed business model. Consider...
In order for a mediation to begin, two sides of a dispute must:
1. Recognize that they are in a conflict (many people react to the unpleasantness of conflict with avoidance and denial, and often only one party is feeling the pain of conflict and cannot motivate the other side to admit that there is a problem),
2. Realize that their best option for addressing the conflict may be a negotiated outcome (many people in conflict have a skewed perspective of the situation, seeing only the positives on their side and the negatives on the other, and are therefore interested and confident in attacking the other side),
3. Reach the desire to sit down with the other disputant (many disputants do not want to address the conflict with the other party because dealing with the conflict or with the other side directly is painful--I am always surprised at how parties who are in constant communication do not discuss the conflict between mediation sessions and in the lobby before and after a mediation), and
4. Agree on a mediator and agree to split the costs of that mediator.
These four steps are nearly impossible to achieve. If people are high-functioning enough to jump through these hoops to get to mediation, they are likely able to talk to each other to resolve or prevent conflict without the assistance of a mediator.
So, what happens? Usually one party gets fed up with the conflict, approaches an advocate, attacks the other side, the other side runs for protection to their own advocate to counterattack, and then both side fight violently until a judge or their dwindling bank accounts motivate them to sit down with a mediator. If one disputant runs to a mediator first, the mediator then needs to contact the other disputant (who is in denial/conflict-avoidance mode) and convince the other disputant to come to the table from a position of impartiality.
How can co-resolution help? An attorney, mediator, or court-staff approached by one disputant can offer co-resolution (telling the disputant that they will help them with personal negotiation and communication coaching) and then that co-resolver's partner (the second co-resolver) can contact the other disputant and tell them what the first disputant is alleging/planning. Then, when that second disputant inevitably reacts by expressing their side of the conflict, the second co-resolver can express empathy and explain the services he or she can offer the disputant in effectively persuading the first disputant of the arguments/positions/interests they are expressing.
People like advocates--especially people in conflict (they will cling to this assistance at the mere offer of it). If you are an advocate, court employee, or mediator, consider offering co-resolution as an option for cases that are not appropriate for litigation but that cannot be talked into mediation.
4.15.2014
"O-Resolution!": The First Meeting of The Co-resolution Group and More to Come
A little background: For a few months in 2009, I had publicized "Information Sessions" at the Columbus Public Library, driven down from Marion, and lectured co-resolution to the one person who would show up. Perhaps embarrassed to be the only person at a long table with many pamphlets painstakingly arranged on it, this person would politely show interest and then fade away like a bad first-date. Sometimes no one would show up, and I would optimistically be grateful that my embarrassment wasn't being shared by anyone else.
So, these memories were organizing a reunion tour of my brain's emotion-centers at 8:59 this morning, as I sat utterly alone in the Community Room of the Panera on Bethel Road, reserved by a dry-erase board reading "O-Resolution: 9:00-10:00." Guided by the same optimism that I have yet to violently draw-and-quarter to the four lobes of my brain, I had emailed the participants of the recent co-resolution training--and a handful of other people--that "The Co-resolution Group" would be meeting at 9:00 this morning to discuss I-didn't-know-what, and this same optimism was telling me to write out an agenda.
Did disaster occur? If six people being a few minutes late and not following my last-minute agenda because everyone kept tripping over each other with excellent questions and observations qualifies as a disaster, then yes--complete train wreck. Otherwise, I tend to see the positive side of these moments.
Topics Discussed: Basics of co-resolution, how and why it has worked, how co-resolution could help cases with power imbalances and high-conflict, how co-resolution could and should be marketed (including whether we should start our meetings by singing an anthem, entitled "O-Resolution").
Topics to be discussed next time: Co-resolution credentialing, further trainings, attracting members of the dispute resolution community, finding sources of cases, next steps.
Next Meeting:
May 20th, 2014
9:00am-11:00am (or whenever)
Panera Bread, 875 Bethel Road, Columbus, Ohio
Thank you, everyone who came today. I hope to see you all again in May. Bring a friend--you're going to need a partner in this process!
So, these memories were organizing a reunion tour of my brain's emotion-centers at 8:59 this morning, as I sat utterly alone in the Community Room of the Panera on Bethel Road, reserved by a dry-erase board reading "O-Resolution: 9:00-10:00." Guided by the same optimism that I have yet to violently draw-and-quarter to the four lobes of my brain, I had emailed the participants of the recent co-resolution training--and a handful of other people--that "The Co-resolution Group" would be meeting at 9:00 this morning to discuss I-didn't-know-what, and this same optimism was telling me to write out an agenda.
Did disaster occur? If six people being a few minutes late and not following my last-minute agenda because everyone kept tripping over each other with excellent questions and observations qualifies as a disaster, then yes--complete train wreck. Otherwise, I tend to see the positive side of these moments.
Topics Discussed: Basics of co-resolution, how and why it has worked, how co-resolution could help cases with power imbalances and high-conflict, how co-resolution could and should be marketed (including whether we should start our meetings by singing an anthem, entitled "O-Resolution").
Topics to be discussed next time: Co-resolution credentialing, further trainings, attracting members of the dispute resolution community, finding sources of cases, next steps.
Next Meeting:
May 20th, 2014
9:00am-11:00am (or whenever)
Panera Bread, 875 Bethel Road, Columbus, Ohio
Thank you, everyone who came today. I hope to see you all again in May. Bring a friend--you're going to need a partner in this process!
4.12.2014
Surveys from the Base of the Summit
...Previously on "Co-resolution":
Nate [shouting from rooftops from 2008 to 2010]: "...I just need some way to apply this process!!..."
Susan: "...I will do this co-resolution process with you, so long as you don't mention game theory anymore or publicize my involvement too much."
Nate [with a duplicitous look to the camera/blogosphere]: "Suuuuuuuurrre..."
Marya [paying seemingly-equal attention to a million other tasks]: "...Sure you can try out your untested, experimental process in my mediation program. Here, [throwing keys] use my car if you need it..."
The first question anyone would ask me about co-resolution when I was first describing it to the ADR community was, "How has it worked in practice?" I would therefore like to dedicate a post to bragging about the surveys of disputants who participated in the co-resolution process, which address that question in the concreteness and persuasiveness only achievable by simple numbers.
First, some background: Since June of 2012, I have been taking the trek to Columbus on a monthly basis, applying co-resolution with Susan Shostak in cases that screen as high-conflict in Marya Kolman's Domestic Relations Mediation Program. And despite the fact, or directly because of the fact, that Susan and Marya would shrug off my gratitude as gratuitous (Susan because she resists my efforts to shine limelight on her as if we were playing laser tag, and Marya because she usually seems too distracted earning waves of adulation to really bask in any of it), I want to express my appreciation for their trust and assistance with the same shout-from-the-rooftops intensity with which I yearned for such help years ago.
Thanks Susan! Thanks Marya!
Okay. On to the numbers.
In 44 surveys taken from June, 2012, to August, 2013, participants were asked was there agreement reached in the negotiation (yes, yes on some issues, no), was the overall process neutral (yes, no favoring other side, no favoring my side), and on a scale of 1 to 5 how satisfied they were with their own negotiation coach, how they felt toward the other side's coach, whether they were able to trust the other party, and how satisfied they were with the overall process.
First, parties expressed satisfaction with their own coach at 4.8/5.0. Confirming the bond the co-resolvers perceived with their respective disputants, this demonstrates that parties did not feel that their own coach was colluding with the other side--this is despite the fact that the coach shares an ongoing relationship with the other coach and acts as a less-than-zealous advocate.
Next, parties rated the other coach at 4.6/5.0. This is the truly noteworthy number. Co-resolution is intended to be a system of cooperative advocacy--where disputants can get assistance from a coach/negotiator/advocate without having the possibility of a hard-hitting advocate on the other side opening the flood gates for an arms race of competitive/non-cooperative behavior. So, 4.8/5.0 satisfaction with your own advocate is not unusual (the only published survey I found of client satisfaction with attorneys rated them 4.5/5.0 when they won and 3.1/5.0 when they lost), but consider how many litigants would rate the other attorney at a 4.6/5.0. My litigation clients have nightmares about opposing counsel, and I would like to imagine that it's much worse on the other side.
So, there you have it: disputants in co-resolution are highly satisfied with their own coach and appear to believe that the opposing coach/negotiator/advocate is fair and reasonable. Conclusive? Apparently not...
When I presented these findings (along with 4.2/5.0 trust, 4.0/5.0 overall satisfaction, 64% full agreement, 25% partial agreement, and 91% neutrality), I was told that these results raised many questions--first among these was, "So what?" What does 4.8/5.0 indicate? If co-resolution stands apart from other dispute resolution processes, how does it stand in comparison? Basically, reviewers wanted to know how the co-resolution data would compare with surveys evaluating mediation.
Let me make it abundantly clear: I do not wish co-resolution to "compete" with or replace mediation. I want it to replace the practice of using attorneys as professional negotiators--attorneys are designed to litigate, not negotiate (but that is a different blog post).
Regardless, I did revamp the surveys to compare how Susan and I did as co-resolvers to how Susan did as an impartial mediator. The results were as follows:
Was agreement reached in the process? Co-resolution: Yes on 7, Some on 3, No on 0. Mediation: Yes on 19, Some on 8, No on 0.
How satisfied were you with the negotiation process? Co-resolution: 4.4/5.0. Mediation: 4.2/5.0.
Did the facilitator(s) have a positive impact? Co-resolution: 4.8/5.0. Mediation: 4.4/5.0.
Were you able to express everything you wanted to express? Co-resolution: 4.6/5.0. Mediation: 4.5/5.0.
Were you able to understand the other side's P.O.V.? Co-resolution: 4.5/5.0. mediation: 4.4/5.0.
Do you feel that the other side was able to understand your P.O.V.? Co-resolution: 4.1/5.0. Mediation: 3.9/4.0.
Were you able to trust the other side? Co-resolution: 4.1/5.0. Mediation: 3.8/5.0.
Was the process neutral? 100% "Yes" for co-resolution and mediation.
So, where are we? After two years of increasing data by a few surveys each month, I was led to shift my efforts from publishing these results in major journals to sharing them with local mediators. Something told me that I could publish and present results until I was blue in the face and I would only end up feeling blue with the results. So, I conducted a day-long co-resolution training in which participants expressed enthusiasm about the process (and rated the course at 4.9/5.0--surveys for another post). Thus, if change was going to happen, it was going to occur bottom-up rather than top-down. So, again, where does that leave us? At the bottom. Take a look:
The business and technological communities (depending heavily on new ideas) have long known that new ideas/practices spread through the population along a bell curve: from innovators (2.5% of the population), to early adopters (13.5%), to the early majority (34%), to the late majority (34%), and finally to the laggards (16%) (see Rogers, Diffusion of Innovations). In order for a practice to catch on and "tip" into common usage, it needs to be applied by 15% of the population, representing the innovators and early adopters. I've tended to believe that 20% is a good tipping amount (especially when service is at 4.8/5.0), but who am I to question the wisdom of the business community in this regard?
This trajectory for the diffusion of new ideas is explained by the psychological makeup of the overall population. 2.5% of people are innovators--outsiders who clash with the status quo, seek to change the broader system, and thereby propose novel concepts. I would consider myself to be an innovator, and my Myers-Briggs personality type (INTJ) would support this. INTJs comprise 2% of the population and are imaginative, introverted outsiders who gather knowledge and attempt to improve systems with an uncompromising rationality. As Burkan notes in Wide Angle Vision, innovators exist on the "edge" of a population, bringing new ideas from the periphery or bottom of an organization, rather than from a position of authority or top of the organization.
The next group, 13.5% of the population, are the early adopters. These are risk-taking extroverts who seek out new ideas and use their higher status and leadership abilities to swing the opinion of the broader group. As Moore details in Crossing the Chasm, this visionary minority must then sell the innovation to the risk-adverse pragmatists in the rest of the population.
Applying this bell-curve trajectory to co-resolution, the predicted propagation of this idea begins with a very slight slope--a few years of just me, then two years of me and Susan. The slope then angles sharply, noting either exponential growth or the steepest, most difficult and treacherous section of the route to the top. This is the point on the curve where co-resolution appears to currently lie--between innovators and early adopters. A good number of extroverted, visionary, opinion leaders participated in the training I held a couple weeks ago, and I am hopeful that they will propel the idea into the larger alternative dispute resolution community. This may not be such an insurmountable feat. Using the membership of mediation organizations in Ohio (approximately 200 people) to estimate the ADR professionals in the state at maybe 400 people, this tipping point is only 50-60 people. We might not be so far off from that number, taking a look at the page-visits for this website around the time of the training session on March 28th (another bell curve):
Thus, I am recruiting 50-60 opinion leaders interested enough in new ideas to have read this far into a long blog post. Up to this point, I'm sure that co-resolution would have faded away without my direct actions. Now, I would like to pass the torch to the early adopters, hoping that we can spread this idea and set the field ablaze.
Nate [shouting from rooftops from 2008 to 2010]: "...I just need some way to apply this process!!..."
Susan: "...I will do this co-resolution process with you, so long as you don't mention game theory anymore or publicize my involvement too much."
Nate [with a duplicitous look to the camera/blogosphere]: "Suuuuuuuurrre..."
Marya [paying seemingly-equal attention to a million other tasks]: "...Sure you can try out your untested, experimental process in my mediation program. Here, [throwing keys] use my car if you need it..."
The first question anyone would ask me about co-resolution when I was first describing it to the ADR community was, "How has it worked in practice?" I would therefore like to dedicate a post to bragging about the surveys of disputants who participated in the co-resolution process, which address that question in the concreteness and persuasiveness only achievable by simple numbers.
First, some background: Since June of 2012, I have been taking the trek to Columbus on a monthly basis, applying co-resolution with Susan Shostak in cases that screen as high-conflict in Marya Kolman's Domestic Relations Mediation Program. And despite the fact, or directly because of the fact, that Susan and Marya would shrug off my gratitude as gratuitous (Susan because she resists my efforts to shine limelight on her as if we were playing laser tag, and Marya because she usually seems too distracted earning waves of adulation to really bask in any of it), I want to express my appreciation for their trust and assistance with the same shout-from-the-rooftops intensity with which I yearned for such help years ago.
Thanks Susan! Thanks Marya!
Okay. On to the numbers.
In 44 surveys taken from June, 2012, to August, 2013, participants were asked was there agreement reached in the negotiation (yes, yes on some issues, no), was the overall process neutral (yes, no favoring other side, no favoring my side), and on a scale of 1 to 5 how satisfied they were with their own negotiation coach, how they felt toward the other side's coach, whether they were able to trust the other party, and how satisfied they were with the overall process.
First, parties expressed satisfaction with their own coach at 4.8/5.0. Confirming the bond the co-resolvers perceived with their respective disputants, this demonstrates that parties did not feel that their own coach was colluding with the other side--this is despite the fact that the coach shares an ongoing relationship with the other coach and acts as a less-than-zealous advocate.
Next, parties rated the other coach at 4.6/5.0. This is the truly noteworthy number. Co-resolution is intended to be a system of cooperative advocacy--where disputants can get assistance from a coach/negotiator/advocate without having the possibility of a hard-hitting advocate on the other side opening the flood gates for an arms race of competitive/non-cooperative behavior. So, 4.8/5.0 satisfaction with your own advocate is not unusual (the only published survey I found of client satisfaction with attorneys rated them 4.5/5.0 when they won and 3.1/5.0 when they lost), but consider how many litigants would rate the other attorney at a 4.6/5.0. My litigation clients have nightmares about opposing counsel, and I would like to imagine that it's much worse on the other side.
So, there you have it: disputants in co-resolution are highly satisfied with their own coach and appear to believe that the opposing coach/negotiator/advocate is fair and reasonable. Conclusive? Apparently not...
When I presented these findings (along with 4.2/5.0 trust, 4.0/5.0 overall satisfaction, 64% full agreement, 25% partial agreement, and 91% neutrality), I was told that these results raised many questions--first among these was, "So what?" What does 4.8/5.0 indicate? If co-resolution stands apart from other dispute resolution processes, how does it stand in comparison? Basically, reviewers wanted to know how the co-resolution data would compare with surveys evaluating mediation.
Let me make it abundantly clear: I do not wish co-resolution to "compete" with or replace mediation. I want it to replace the practice of using attorneys as professional negotiators--attorneys are designed to litigate, not negotiate (but that is a different blog post).
Regardless, I did revamp the surveys to compare how Susan and I did as co-resolvers to how Susan did as an impartial mediator. The results were as follows:
Was agreement reached in the process? Co-resolution: Yes on 7, Some on 3, No on 0. Mediation: Yes on 19, Some on 8, No on 0.
How satisfied were you with the negotiation process? Co-resolution: 4.4/5.0. Mediation: 4.2/5.0.
Did the facilitator(s) have a positive impact? Co-resolution: 4.8/5.0. Mediation: 4.4/5.0.
Were you able to express everything you wanted to express? Co-resolution: 4.6/5.0. Mediation: 4.5/5.0.
Were you able to understand the other side's P.O.V.? Co-resolution: 4.5/5.0. mediation: 4.4/5.0.
Do you feel that the other side was able to understand your P.O.V.? Co-resolution: 4.1/5.0. Mediation: 3.9/4.0.
Were you able to trust the other side? Co-resolution: 4.1/5.0. Mediation: 3.8/5.0.
Was the process neutral? 100% "Yes" for co-resolution and mediation.
So, where are we? After two years of increasing data by a few surveys each month, I was led to shift my efforts from publishing these results in major journals to sharing them with local mediators. Something told me that I could publish and present results until I was blue in the face and I would only end up feeling blue with the results. So, I conducted a day-long co-resolution training in which participants expressed enthusiasm about the process (and rated the course at 4.9/5.0--surveys for another post). Thus, if change was going to happen, it was going to occur bottom-up rather than top-down. So, again, where does that leave us? At the bottom. Take a look:
This trajectory for the diffusion of new ideas is explained by the psychological makeup of the overall population. 2.5% of people are innovators--outsiders who clash with the status quo, seek to change the broader system, and thereby propose novel concepts. I would consider myself to be an innovator, and my Myers-Briggs personality type (INTJ) would support this. INTJs comprise 2% of the population and are imaginative, introverted outsiders who gather knowledge and attempt to improve systems with an uncompromising rationality. As Burkan notes in Wide Angle Vision, innovators exist on the "edge" of a population, bringing new ideas from the periphery or bottom of an organization, rather than from a position of authority or top of the organization.
The next group, 13.5% of the population, are the early adopters. These are risk-taking extroverts who seek out new ideas and use their higher status and leadership abilities to swing the opinion of the broader group. As Moore details in Crossing the Chasm, this visionary minority must then sell the innovation to the risk-adverse pragmatists in the rest of the population.
Applying this bell-curve trajectory to co-resolution, the predicted propagation of this idea begins with a very slight slope--a few years of just me, then two years of me and Susan. The slope then angles sharply, noting either exponential growth or the steepest, most difficult and treacherous section of the route to the top. This is the point on the curve where co-resolution appears to currently lie--between innovators and early adopters. A good number of extroverted, visionary, opinion leaders participated in the training I held a couple weeks ago, and I am hopeful that they will propel the idea into the larger alternative dispute resolution community. This may not be such an insurmountable feat. Using the membership of mediation organizations in Ohio (approximately 200 people) to estimate the ADR professionals in the state at maybe 400 people, this tipping point is only 50-60 people. We might not be so far off from that number, taking a look at the page-visits for this website around the time of the training session on March 28th (another bell curve):
4.08.2014
Co-resolution in Action: Fair Play in Negotiation
One of the problems with negotiation is that it is an unregulated exchange of information and proposals. While informality and flexibility are advantageous, the trade-off is a lack of common rules or ethics and the oversight mechanisms that would be necessary to enforce them. So, for example, if both parties agree to come up with a proposal for settlement, the exchange could play out as follows:
(1) Party A voices their proposal first,
(2) Party B prefers the proposal Party A just communicated to their own proposal (which would have benefited Party A even more),
(3) Party B decides to abandon the more-generous proposal and communicates one that is commensurate with Party A's offer.
It is problems like this that cause negotiating parties to be cautious or overreaching with the positions they communicate. However, in co-resolution, this exchange has played out as follows:
(1) The co-resolvers (Susan and I) caucus with our respective parties and help them come up with ideas for resolution,
(2) We reconvene the four-way negotiation and raise the issue of ideas for resolution,
(3) My party communicates his proposal first (and I help to communicate/sell it to the other party),
(4) Susan's party then expresses that she doesn't want to communicate her proposal,
(5) I remind Susan that we should be negotiating fairly (Susan knows what her party had prepared as a proposal in caucus), and Susan gently reminds her party that this process involves negotiation behavior that both co-resolvers regard as fair,
(6) Susan's party communicates her proposal, and the parties negotiate within the overlap of their respective offers.
As this has played out, Party B (Susan's party in the example) has only needed a gentle prodding. Most parties fully accept the mutuality of co-resolution, appreciate and abide by the directions given by their own co-resolver, and only require a reminder when they find that manipulation (defection in the Negotiator's Dilemma) would better serve their individual interests in any one part of the broader negotiation.
Thus, the co-resolvers use their ongoing working relationship as an ethical yardstick to monitor the parties and make sure that they are negotiating honestly, reciprocating exchanges in information, and abiding by actions that they promise to take within the informal exchange. If either co-resolver felt that their own party was attempting to deceive or manipulate the other, the co-resolver could threaten to terminate the process. Parties should know from the outset that co-resolution is a process in which common ethics will be applied and--following Lowenstein's theories on the psychological urge toward filling gaps in knowledge--I would suspect that most parties would prefer common ethical regulations (thereby allowing them to know that the other side was communicating fairly). Because standard negotiation does not enjoy oversight or set definitions of "fair play," this is a benefit unique to co-resolution.
(1) Party A voices their proposal first,
(2) Party B prefers the proposal Party A just communicated to their own proposal (which would have benefited Party A even more),
(3) Party B decides to abandon the more-generous proposal and communicates one that is commensurate with Party A's offer.
It is problems like this that cause negotiating parties to be cautious or overreaching with the positions they communicate. However, in co-resolution, this exchange has played out as follows:
(1) The co-resolvers (Susan and I) caucus with our respective parties and help them come up with ideas for resolution,
(2) We reconvene the four-way negotiation and raise the issue of ideas for resolution,
(3) My party communicates his proposal first (and I help to communicate/sell it to the other party),
(4) Susan's party then expresses that she doesn't want to communicate her proposal,
(5) I remind Susan that we should be negotiating fairly (Susan knows what her party had prepared as a proposal in caucus), and Susan gently reminds her party that this process involves negotiation behavior that both co-resolvers regard as fair,
(6) Susan's party communicates her proposal, and the parties negotiate within the overlap of their respective offers.
As this has played out, Party B (Susan's party in the example) has only needed a gentle prodding. Most parties fully accept the mutuality of co-resolution, appreciate and abide by the directions given by their own co-resolver, and only require a reminder when they find that manipulation (defection in the Negotiator's Dilemma) would better serve their individual interests in any one part of the broader negotiation.
Thus, the co-resolvers use their ongoing working relationship as an ethical yardstick to monitor the parties and make sure that they are negotiating honestly, reciprocating exchanges in information, and abiding by actions that they promise to take within the informal exchange. If either co-resolver felt that their own party was attempting to deceive or manipulate the other, the co-resolver could threaten to terminate the process. Parties should know from the outset that co-resolution is a process in which common ethics will be applied and--following Lowenstein's theories on the psychological urge toward filling gaps in knowledge--I would suspect that most parties would prefer common ethical regulations (thereby allowing them to know that the other side was communicating fairly). Because standard negotiation does not enjoy oversight or set definitions of "fair play," this is a benefit unique to co-resolution.
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