Back to the Table and Another Course: Problem Solving and Options
Tired of dining? I hope not – there is plenty of food for thought when planning this next table.
If you have been following the outline you understand that counsel has presented the strengths of their case to the opposing side and the principal at the table has carefully begun to assess litigation risks. After the legal discussion, the principals discussed their business case, concerns, interests, and are beginning to move towards what they really need to resolve the matter.
The next table involves defining the problem and inventing options for a possible settlement. In professor Fisher’s early work on Getting to Yes, he discusses inventing options as brainstorming. For some, brainstorming conjures up memories of sitting with a facilitator posting yellow post-its on a wall and maybe voting on them.
In this setting we are focused on a problem or series of problems that are at the heart of the matter. These are the fulcrums that integrate the core interests into a cohesive statement where the options will become levers. The more clearly defined the problem statement is, the more focused and productive the option period is.
The mediator with the parties will define the problem in as neutral and open-ended language as possible. In the example I gave about the pipeline constraint feeding a major urban area the problem was a simple one – but the solutions seemed complex: how do the parties insure natural gas into the city with zero possibility of a shut down in the pipe permitting the inspection to proceed and no loss of service?
If you notice, the wording was not “how does one side do X while the other does Y?” It was worded in the third person enabling the parties to begin sitting literally side by side as partners trying to solve this quagmire that it was.
Two important ground rules when inventing options, and this is always a challenge for everyone around the table:
1. no attribution
2. these are not settlement offers.When you understand and trust the first, the second falls into place more easily. When you have individuals at the table representing different divisions on a project team, the corporate culture may be only one spokesperson.
What are some ways this can workout for the best? As discussed in the first session regarding planning the mediation process and stages, defining the problem/option generation stage needs to get explored. The mediator must inform counsel and the negotiating team about the expectations and benefits that follow when this stage is properly exercised.
We will discuss grouping options and proposed settlement offers in an upcoming blog.