In a recent post I suggested one way to avoid conflict. I’ve been asked to share more, so here it goes:

I call this hint the fallacy of believing that a deteriorating situation will always improve on its own. True it is possible that it might, but consider the consequences of a bad conflict situation if it doesn’t.

I’ve mediated many collection disputes. For example, for whatever reason one party owes another party a sum of money. Again, for whatever reason the debtor party experiences a change of circumstance and can’t pay as promised. The debtor party truly hopes and believes that the situation will improve and avoids contact with the lender. The lender sues and the parties are referred to mediation. If mediation is not successful and the dispute is heard by a judge in court, the lender will get a judgment plus court costs. The lender must still attempt to collect, which can be a time consuming, difficult and frequently unsuccessful process.

What I so often hear in private caucuses with lenders is ‘if the debtor had only come to me and kept me informed we could have worked something out.” Of course there’s no guarantee that would have happened, but not keeping the lender informed more surely results in conflict.

Construction conflicts often have a similar outcome. In one case, the contractor could not secure the HAV equipment the architects and engineers had specified. To keep the project on schedule, the contractor made a unilateral substitution of equipment that had been used on similar buildings. The substitution came to light in final walk-throughs. The owner demanded that the equipment be replaced with the originally specified equipment at the contractor’s expense. The contractor responded that what was installed was more than adequate and the equipment first requested might not be available for several months. In private caucus the owner told me that if the contractor had only shared that information during one of their regular construction meetings something could probably have been worked out.

In many disputes I so often hear similar words. Of course, that may not always be the case. But experience tells me not sharing bad news early will almost always result in a difficult conflict later on.

After years of mediating conflicts I have developed a few insights on how to avoid unnecessary and nonproductive confrontations.  One example always comes to mind:

After participants in a mediation have reached an agreement, the mediator will transcribe it for them in writing. Many times that process reveals how differently the parties understand the terms. Even though the parties might say, “we agree,” in fact, it’s almost as if they have completely different points of view of the outcome. That often becomes clear when the mediator asks the questions of “who, what, when, and where.” If the parties are now genuinely in a cooperative state of mind, they are motivated to work together to “flesh out” their general agreement into one that is substantive, comprehensive, final and binding.

I’ve had a mediation end with an agreement that $50,000 would settle the dispute.  The parties were pleased and congratulated each other.  But in reality, all they had reached was two different understandings of what that $50,000 actually meant. As I asked questions, it soon became apparent that one thought it meant $50,000 in increased orders and the other thought it meant a check for $50,000 by the end of the day. They thought they had agreed, but it wasn’t until they worked out the written details that a final comprehensive agreement emerged.

So what does transcribing a verbal mediation agreement into a written agreement have to do with avoiding unnecessary and nonproductive conflicts?

Simply this: I can think of so many disputes were the heart of the misunderstanding was a verbal agreement the parties thought they had. When I ask the parties if they have any form of written agreement, even notes on the back of an envelope, the parties admit that nothing was ever written down.

I’ve had two neighbors in a very exclusive private resort in mediation over the construction of an expensive wall dividing their properties. Both parties told me they had agreed to split the cost for the construction of a decorative stone wall on the property line and that one party was to arrange for the contractor to do the work. Their dispute and subsequent mediation was over the words “on the property line” and the height of the stone wall.  (As a result, a very expensive stone wall had to be taken down, moved some eight inches, and reduced a foot in height.)

How could this dispute have been avoided? If one party had just taken out a note pad and started writing down some details in the presence of the other party. As those details “became real” on paper the parties would likely have seen the verbal agreement had a ways to go before it was a “true agreement.”