regards,

Empathy plays a big part in the transition from victim to problem solver. You need to listen to what victims say and to what they don't say. It will help you build trust so they feel comfortable talking about what they really want.

You also need to identify with victims without isolating the other side, e.g. empathize with the other side and what they're going through by having to listen to all of this. When one person is rehashing his or her feelings, the other side may feell upset at the outpouring of emotion…fearing that it will derail the discussions or turn people against them. You can help prep them for this experience by setting the right expectations in the beginning about both sides getting the opportunity to be heard.

Another way to avoid it is to transtion victims from the past through reframing and mutualizing needs and interests. More often than not, the people at the table have things in common. Tie issues raised to those things. Help them to identify with each other (if possible). And, make sure to tie a long, emotional discussion to the present and to the case at hand. It helps victims refocus and it lets the other side know there was a point to the whole thing.

Sometimes I have defense attorneys tell me that they don't want to listen to (or expose their clients to) long emotional stories from victims. Some mediators try to shut those attorneys and defendants down by saying something like "well, you'll have to. It's what mediations about." Wrong answer. Maybe mediation is about talking, but NO they don't HAVE to do listen to anything.

I take a different approach. I try to find out why they don't want to hear the victim's story. What are they afraid of? How do they think it will impact negotiations? Get them to acknowledge whether they see any merit in emotion at the table. They've obviously come to this conclusion for a reason, might as well find out why.

I also ask the defense a "what if" question like "what if by listening to the victim's emotional story, they (the defense counsel and defendant) could get the case resolved today?" It's fun to watch their wheels turning at the possibilities.

Matt Vititoe
Attorney and Mediator
http://www.americanlegalgroup.net

First, we need to understand the concept of “shadow negotiation.” Shadow negotiation is the type of interpersonal communication and power plays that go on in the “shadows” or behind-the-scenes, which determine the amount of give-and-take there will be in the negotiation. For example, a co-worker who has done you a favor in the past might be expecting a return favor in the current negotiation without anything being said. It’s important when dealing with shadow negotiation to surface the rules and expectations being used in the shadows such as the expectation that compromise between two co-workers will be expected. Remember that a slight change in your position, such as surfacing what’s in the shadows, will create a dynamic shift in the negotiation. The question to be asked here is: what do each of us have in our minds that we need to surface before we begin negotiating?

Negotiation is always about two things: substance (what people have to say about the issue) and the relationship (balancing the terms in the relationship such as equality and subordination). It’s important to realize that reaching resolution in the substance portion of the negotiation does not necessarily mean there is resolution in the relationship portion. Fisher and Ury in Getting To Yes, suggest “It is important to carry on negotiation in a way that will help rather than hinder future relations. The ongoing relationship is far more important than the outcome of a particular negotiation.” With this in mind, we should focus on what’s called integrative negotiation rather than distributive negotiation. Integrative negotiation focuses on “expanding the pie,” allowing for trade-offs and exploring issues from multiple angles – what we might call a win-win approach. Distributive negotiation is a win-lose approach which focuses on personal gain and ultimately can destroy the relationship.

I warn my clients that EVERY complaint should be taken seriously no matter the personality of the complainer. With that said, however, I would caution that employers add language to their harassment policies that adds a disciplinary measure for false complaints.

Someone who uses a harassment complaint for something other than stopping harassment should be terminated!