There should be good business available for conflict mediators in the current financial mess. The current recession appears to be shaping up as a long and deep one and banks, businesses and people may be a bit more disposed to consider creative ways to solve financial problems, especially when legal remedies are largely unavailable or ineffectual. Targeting markets, however, won’t be easy. Selling negotiation and mediation is difficult under the best of circumstances, and there still is no clear, well-trodden path to those services. So while logic might suggest that re-negotiation of contractual terms and conditions would be in the interests of all concerned, logic doesn’t always dictate action.
Financial stress contributes significantly to personal and business conflicts. The tension and raw emotion of loss, together with the hard decisions about allocation of assets and liabilities and continuing financial responsibilities make matters particularly intense. Ironically, however, while there are more emotional stand-offs and separations, there are typically fewer actual divorces. No one can afford the legal action and if assets, like the house, are hard to sell in a cold market, there may be little alternative except to stay married, at least for the time being.
While it might be useful to market the mediation of the terms and conditions of interim separations—money, living arrangements, parenting, property responsibilities—- to relieve some of the stress, most people are not conditioned to avail themselves of those services. But, it may be worth a try.
Marketing is always a tricky business for mediators. In times of economic boom, negotiating isn’t the first considered option to settle business problems; people are so busy slapping together deals that they tend to give short shrift to the details. There is a ‘take it or leave it’ attitude of ‘I got it, you want it, pay for it or else.’
In tough times, negotiation and conflict mediation are often slighted or ignored as a viable options because they are either not understood or the parties are so embarrassed, angry or humiliated, that they just won’t consider talking. Even business people, reputed and touted to be most mindful of common sensical, ‘bottom-line’ thinking, often resist engaging in cost and time efficient mediations. Corporate business nowadays, are reluctant to abandon their piles of rules and protocols in favor of the exercise of the discretion necessary to make the deal work. No one wants to take the risk. But then, if business people were as soberly rational and sensible as we have wanted to believe, perhaps we wouldn’t be in this financial mess to begin with. As mortgage foreclosures loom and credit tightens to the point of strangling jobs and the ability to do basic business, costs rise and people are squeezed financially and emotionally, many people are hesitant to do the obvious: discuss and negotiate the issues. Homeowners won’t call and lenders and mortgage holders aren’t organized to take calls or just won’t return them. Apparently, even being on the brink of economic disaster with our health and welfare literally on the line is not enough to trigger the use sensible modes of conflict management and collaborative problem solving.
Not unlike most disputes with which mediators are familiar, this financial mess is fertile terrain for the suckering us into the ‘blame’ business, or more exactly, forgetting ours and casting on the denizens of Wall Street all responsibility for greed. That is a risky business, says eminent sociologist Charles Tilly, in his most useful last book before his recent death, Credit and Blame ( Princeton Univ Press, 2008) We humans insist upon ignoring and denying problems in our business dealings just like we do in our personal lives. Many of us have wanted to cash in on the ever-appreciating value of property, and invested in company’s with overpaid CEO’s as long as the stock market rose steadily. In retrospect, our profligacy is glaringly obvious. But then, the presence of rational decision making in business matters is as much a myth as it is in any other human endeavor. We are all prone to be ‘Predictably Irrational.’ (See, Ariely, Dan, 2008)
Eventually, however, and hopefully before too much damage is done, people will recognize they have to negotiate and will back into using conflict mediation services. This is the time for professional mediators to actively cultivate and encourage that awareness and make sure they are available. Mediators cannot afford to wait around to be discovered or for agencies and courts to set up programs. They must actively sell mediation services.
To be effective in marketing and selling mediation services, it is as important to consider the conventional wisdom to be avoided as well as how to move forward.
1. Expect a downturn in divorce mediation. Many people expect the financial stresses to encourage more divorce. Money issues will undoubtedly cause more tension in relationships and families—-the holiday season this year is likely to be difficult—but a divorce will not likely be one of the more common gifts under the tree for the new year. Simply put: most people will not be able to afford a divorce. Even in better economic times two people cannot live as cheaply as one. In fact, contrary to popular belief, the most difficult issues in divorce are not parenting issues, but money; and, most parenting disputes are money issues in disguise. With current employment and earning insecurity high, and the real estate market slowing down and house values falling, divorce is considerably more risky and problematic than normal.
2. Workplace and employment mediation is a confused area but not likely to bring more business. Many workers keep their heads down in slow business times and are hesitant to complain or raise issues for fear of being noticed and risking their job. For those who are being laid off or terminated, there may be some room to negotiate terms, but not a lot. There is clearly more tension and stress in the workplace, but it will be kept under wraps for the present. While the cutting of health care benefits and erosion of pensions and retirement benefits will continue to be significant issues, there are not likely to be many outright labor strikes. The insurance companies own us all, management and labor alike.
3. Court connected or related mediation programs will remain largely unchanged, trying to ‘jury-rig’ mediation services on the cheap. The civil and commercial cases that are currently mediated in those jurisdictions that have established programs will continue unabated, but that business is pretty well locked up by ‘attorney-mediators’ and breaking into that market is not easy. If legislation allows for mortgage terms and conditions on first homes to be re-negotiated in bankruptcy proceedings, there may be some potential business available for mediation. Likewise, foreclosure actions against builders or others that are in a legal posture will increase as will defaults and construction disputes. Clearly, there will be more landlord tenant disputes and ‘rent and possession/eviction’ actions that are being mediated. Funding for the mediation of those matters has never been sufficient and mediation programs will face the same budget constraints as other public services and likely be cut back, not increased.
In short, now even more than before, private mediators should not rely or depend on courts. Generally speaking, the cases are few and far between and payment is minimal.
The new market for mediation services is the financial services industry, targeting matters before they have become legalized. If those in authority can be convinced that they would do better to re-negotiate or at least discuss the terms or conditions of mortgage notes, so as to fend off the cost of foreclosure in hard economic times, they might consider devising in-house mediation programs.
Such programs are beginning to appear in parts of the country. An article in the New York Times, ‘Using Mediation To Avert Default,” describes a program in Connecticut bringing homeowners and lenders together. (Lisa Prevost, October 12, 2008; see also, Mediate.com). Not unlike the farm mediation programs of the past decade, this requires banks to be flexible and mortgagees to be realistic. But that is the easy part. The first task is to find the right person and approaching him or her with the right pitch.
The person contacted needs to be high enough up to have the ear of management. Branch Managers may or may not have the authority, loan officers typically do not. If you know someone personally, take them to lunch and feel out what kinds of circumstances are most problematic for them. Find out who has the authority and what they might be most interested in hearing with regard to mediation services. Give a general script of how a mediation might work.
The pitch should address their fears and concerns. For many in that business, a contract is sacred, even if it is a lousy one; re-negotiating the terms of a loan is a sacrilege. The approach should not be based on ‘doing the right thing’ or maybe even on the rationale of saving money. This is good public relations in a time when are, or should be, desperate to regain a measure of the trust necessary to weather this financial crisis.
On the other side, with homeowners or others in financial trouble, the focus needs to be on encouraging them to not avoid, but deal directly with the problem that is otherwise embarrassing or even humiliating. A good marketing strategy might be to speak to community or church groups who are likely to be in contact with or know of the people at risk. Writing short articles about mediation for local or neighborhood newspapers can also be a good tactic to spread the word.
Finally, don’t let mediation be sidelined or dismissively thought of as useful only with ‘responsible and reasonable’ people. Few people on either side of an issue are viewed as either in a controversy. Mediation does not depend on trusting, liking or respecting the person on the other side of the table, it is about good business, pure and simple.
October 24, 2008
Originally published by the San Diego Daily Transcript April 28, 2008.For the sixth time in the last eight years, in quest of innovative ideas to make my mediation practice the...By Lawrence A. Huerta