1. Reflect on your Practice

Take some time to describe your practice in a neutral (non-marketing) voice. Think about the type of cases you handle and which ones you would refuse to handle. Revisit your intake process, mediation agreement and opening statements: are they still reflective of who you are and who you want to be? Have you articulated to yourself and others how you deal with the ethical dilemmas that often arise in mediation? Are you clear about what situations would cause you to call a halt to a mediation?

2. Role-play
Find situations where you can safely participate in simulated mediations. Mediation is a practice that requires practice, and as such it is good to simulate some extreme situations where you are forced out of your comfort zone. Doing so with like-minded colleagues can help you reflect together to identify things that worked-well and things that could have been done better. This is where most new learning occurs. As an experienced mediator you will learn a lot by playing the role of a party, or by putting yourself in the shoes of the attorney in a simulated dispute. Experiencing things viscerally from the other perspectives provides invaluable insights!

3. Improve your self-awareness
Whether through the help of observers or through your own self-reflection, you should constantly improve your efforts to be self-aware of your own habits, triggers, intuitive-reactions and biases. This is especially important if the last time you made this conscious effort was many years ago. Do you really know how you behave and how you are perceived? Can you tell when you are emotionally “triggered” and how that impacts your body and your mediator’s mind? What can you do to improve your ability to “go to the balcony” and remain centered in mediation? Improving these skills will help you preform better as well as feel better, both at the table and during the rest of your day.

4. Find a peer support person or network
Mediation can be a lonely profession. The people around us (litigators, associates, spouses and others) may not understand what we are dealing with, and may not be able to provide us the advice and support we need. Finding a peer mentor, a “buddy” or a support network is especially valuable when facing surprising challenges and tough “burn-out” moments. But it is even more useful when used to implement continued learning and making your practice more fun. Imagine how you would benefit from implementing a regular monthly call with a colleague where you would both trade stories about one major “win”, one major “challenge” and your “milestone progress”. This will provide you both with peer support, an independent perspective, improved learning and an increased commitment to growth.

5. Develop your Theory of Practice
By reflecting on your actions (using the tips above) you can find some useful lessons-learned. You will be able to identify mistakes that you made, or nearly made, and how you may have prevented them with increased self-awareness. Continuously using what we call the Entrepreneurial Negotiation Loop of learning (prevent- detect & respond – reflect), you will be able to develop your own Theory of Practice: a collection of tips-to-self about how you conduct your practice, and how you aspire to be as a mediator.

Following the above five tips will help you take your mediation practice to the next level, no matter where in the world you mediate and no matter what type of dispute you specialize in. As a matter of fact, I believe that the level of reflection and learning is increased when openly comparing and contrasting different cultures, contexts and norms of mediation.

To help expert mediators from around the globe, a few years ago I helped create the Harvard Negotiation Institute’s Advanced Mediation Workshop, a one-week immersive experience for dozens of professional mediators hosted by the Program on Negotiation at Harvard Law School. Participants participate in simulations, examine different kinds of conflict, and explore some unique challenges such as principal-agent tensions, clashing values, heightened emotion, multi-party problems, and mediating public matters. Mediation professionals gain an expanded toolkit, forge life-long friendships and join a growing global circle of alumni advanced mediators with a renewed energy. We designed the course around the five tips mentioned above.

Whether through an organized program or through your own local initiative, your mediation practice will be greatly improved if you increase your self-reflection and self-awareness, participate in role-play simulations, find the support of other mediators and continuously develop your own mediation theory of practice.

Samuel Dinnar is a business mediator, instructor at the Program on Negotiation at Harvard Law School and a faculty member of the Advanced Mediation Workshop at the Harvard Negotiation Institute (along with distinguished mediators David Hoffman, Larry Susskind, Susan Podziba and Audrey Lee). As founder and President of Meedance, Dinnar provides global consulting services and serves as a mediator specializing in business conflicts that involve founders, executives, investors, and board members.

Based on interviews and research we’ve done for our book, Entrepreneurial Negotiation, we have pinpointed the most common negotiation mistakes that founders make. One of the most insidious occurs when entrepreneurs are too self-centered or maintain a limited perspective. Failing to recognize the needs and priorities of those with whom they are negotiating, can mean that no deal will be reached.

Here’s a simple solution: entrepreneurs should not prepare alone or negotiate alone. Research proves that team negotiations create about 25% more value on average than solo negotiations. That’s because a team is better able to take in more about the other side’s interests, achieving an increased level of information exchange, and finding more mutually beneficial trades.

Therefore, you should bring at least one trusted colleague with you during any negotiation. Plan to talk with your colleague during breaks and between sessions to help you confirm your understandings. Based on that person’s expertise, you may also empower him or her to pass you notes, call for a break, or join the conversation if he or she sees something of significance that you are missing. Just like the aviation industry has learned to improve air safety significantly by giving copilots permission to speak up, you may significantly improve your ability to detect and prevent mistakes by employing other “cockpit resource management” capabilities within your negotiation team.

Here’s another reason you should not negotiate alone. Options, timetables, costs, BATNA’s (Best Alternative to a Negotiated Agreement) and so on, generally do not remain stable during negotiations, especially between sessions. Some of the information or ideas that the other side presents may mean something different to you when seen from a new vantage point. Discussing this with your colleague is important. Also, if there is a move that you suspect may provoke the other side, or may put you in a position that would be close to making a mistake – step away from the table. Initiate a consultation with your colleague, or contact another expert for advice.

Brainstorming To Get Unstuck

We’ve also learned that when entrepreneurs have a narrow perspective, they generally miss out on opportunities to create value. Entrepreneurs who make the mistake of haggling suffer from exactly this narrow mindset. When detecting that you are focused on one primary item, or that you have started a tug of war on a single issue – try to switch into a problem-solving mode and look for possible trades that will create value.

To this end, we suggest using brainstorming to come up with more options. We recommend using two simple ground rules: offer no judgments on the quality of what is being proposed (during brainstorming) and don’t worry about attribution. No judgment means that when one person proposes an idea, no one should judge it as good or bad at that moment. (In the world of theater improvisations this is known as the “Yes, and …” response.) Remember that a partial idea, a bad idea, or an absurd idea might serve as a bridge to a better idea if someone doesn’t shoot it down immediately. “No attribution” means that an idea should not be immediately attributed to the person who suggested it. Better that no one feels “ownership” at the outset. This way, the actual originator doesn’t have to defend their proposal (which could cause them to stop listening to other ideas).

After generating as many options as possible, consider each one as part of an overall package. To reach agreement, you will need to find a package that is acceptable to both sides. Each party may not like every- thing in the package, but the deal as a whole needs to be better for each than doing nothing.

Teamwork and brainstorming are two important methods that entrepreneurs can use to improve the outcomes of their negotiations. Applying these practices will help insure the long-term viability of your organization.

Eighty to ninety percent of all start-ups will fail. While there are many reasons for this, one of the biggest problems new ventures face is poor negotiation skills. The single biggest threat to entrepreneurial success is an inability to handle the negotiations that arise in the evolution of a start-up.  Founders must be able to prevent, detect, and respond to potential negotiation mistakes in each of their interactions.

Here are eight common mistakes that entrepreneurs are prone to make:

Mistake #1: Entrepreneurs Are Self-Centered.

Because entrepreneurs are deeply focused on their own interests when building a business, they often fail to recognize the needs and priorities of those with whom they have to interact. This focus on their own desires can blind entrepreneurs to clues that could lead to better outcomes for both sides, an important goal when building working relationships.

Mistake #2: Entrepreneurs Are Overly Optimistic and Overconfident.

Most entrepreneurs are supremely confident. They believe strongly that they will be successful (despite well-known statistics regarding failure rates). Because of this overconfidence, many fail to incorporate appropriate contingencies into the agreements they sign.

Mistake #3: Entrepreneurs Need to Win.

Now – the primary objective of many entrepreneurs is to win. They are often primarily concerned about besting their counterpart and thus treat negotiations as one-off interactions, disregarding the possibility that future deals might be even more valuable than whatever is on the table at present.

Mistake #4: Entrepreneurs Are Too Quick to Compromise.

Entrepreneurs are “doers.” They try to get things done while operating under incredible pressure. They feel compelled to decide quickly and “move on.” Instead of exploring additional options and finding even more advantageous trades, they settle for quick (and minimally acceptable) solutions.

Mistake #5: Entrepreneurs Work Alone.

When entrepreneurs let their independent spirit dominate the way they negotiate, they prepare alone (rather than consulting their stakeholders and advisors), misread unfamiliar signals, take unreasonable stands, or vent emotionally at inopportune times. They fail to recognize that negotiation is an organizational, not an individual, task.

Mistake #6: Entrepreneurs Haggle.

Many entrepreneurs get “tunnel vision,” assuming that the only thing they’re negotiating is price. This leads them to take a series of aggressive positions along this one dimension, forgetting to consider other factors that can create significant value.

Mistake #7: Entrepreneurs Rely Too Heavily on Their Intuition.

Many entrepreneurs rely on their instincts when a negotiation doesn’t go as planned. But when trusting their instincts, they are not as reflective on  what they are doing and why. So, they end up blaming the other side when things to wrong. Worse, these same problems keep occurring because they fail to learn the right things from their experiences.

Mistake #8: Entrepreneurs Deny Their Emotions.

Most entrepreneurs have a strong sense of what is fair. When they feel they are being mistreated, they fall prey to a slew of emotional mistakes, or cognitive biases, that allow ego to overrule logic. This can be especially problematic for entrepreneurs who tend to deny the relevance of emotions (and ego) in negotiation. While claiming “it is just business,” they can overvalue formal power, leverage, and control and undervalue the more subjective side of business negotiations.

Negotiation can raise negative connotations in our culture. In many pop culture examples negotiation is portrayed an extension of fighting or fleeing, an image that is further perpetuated by sporting events and some of the current political divides. It is perceived to be either a battle of power among strong-willed individuals, or something to be done only if you can’t overcome your “opponent” by manipulation and force. Yet the reality is that we all negotiate, everywhere, and all the time:  At work, with our neighbors, while shopping, while travelling, and at home. We negotiate across the spectrum, from strangers on the phone who represent various entities, to our closest friends and family members.

In business, negotiation is ever present and many times critical to success.  Conducting business activity requires coordination, communication and teamwork. Negotiation skills are at the core of those activities.  A founder’s relationship with investors, co-founders, hired employees, vendors, and customers, all require a series of negotiations over terms and conditions. These all forge the culture of the organization, which will carry on for many years to follow. Effective negotiation skills can make or break a venture.

What negotiation skills are required to lead a high-growth company?  What aspects of negotiations are important to pay attention to when dealing with such a company as a potential partner? How to prepare for a dialogue with a founder, or with the hired executive of such a target company? The continuous study and research of this emerging field over the last couple of decades has yielded some interesting lessons.

Much of this research has centered around the Program On Negotiations (PON) at the Harvard Law School, based on the 1981, Roger Fisher and William Ury seminal book “Getting to YES: Negotiating Agreement Without Giving In”.  Probably the most influential book ever written on the topic, Getting to YES is on it’s third edition (with Bruce Patton added as a co-author) and it continues to introduce readers to negotiation as a principled activity in which both (or all) participants can benefit by creating mutual gains. The great Roger Fisher passed away this summer in August 2012, and his legacy and culture live on with the growing number of dedicated academics and practitioners who continue to develop this exciting field.

The mutual-gains vision that Fisher and his colleagues promoted is in contrast to the typical “old” view of negotiation as a “zero-sum” activity in which two or more parties battle for gain at the other’s expense.  The best “bargainers” used to be those who succeeded in obtaining the largest slice of a pie, with little attention paid to whether the pie could be made larger. This old school approach celebrated the ego satisfaction that comes with gaining more (or even losing less) that the “opponent”. Fisher and Ury suggested that the most successful negotiators will focus on interests rather than positions, and may be better off with a slice of a much bigger pie (or several different slices from various pies, as opposed to just the original one that was considered).

There are several insights from Getting to YES about successful negotiation skills:

–         Separating the people from the problem.  Treat the situation as a joint problem solving exercise, without personal attribution.

–         Use subjective metrics, for example recent comparable deals or some other fair market value technique.

–         Consider via preparations both parties alternative possibilities to reaching a deal, to determine your, and their, BATNA (Best Alternative To a Negotiated Agreement), which will influence the “walk-away” threshold.

–         Explore for the true interests that are beneath the positions. These may uncover unforeseen mutual-gains opportunities (such as one side needing cash sooner while the other cares more about the total price announced publicly).

Naturally, distributive issues (who gets what piece of the pie) still, and will always, exist. In many negotiations, the parties never reach the level of trust that is required to be able to truly benefit from these techniques. The above principles have been widely used in creative deal-making agreements, by lawyers and executives who have been trained and who are practicing these principles, yet still – it is not uncommon to see many agreements that could not detach from the “who has more power” element, and that have “left a lot of value on the table” (or in other words missed opportunities).

There are several barriers to reaching positive value-add creating agreements. Two examples are the Dealmaker’s Dilemma that is based on the famous Game-Theory Prisoner’s Dilemma, and the psychological effect of reactive devaluation (“I cannot accept their offer, since if they are willing to make it, then there must be more I can get”). Researchers and practitioners in negotiations and mediation have offered many proven theoretical and practical tools to deal with these barriers.

When looking at the playing field of negotiations in the business world, all these factors take on particular meanings. When preparing for negotiations with high-growth or high-potential companies we have to pay close attention to all the many due-diligence aspects such as technology, revenues, market segment, competitive landscape, etc. The holistic view will not be complete without the required special attention to the people aspect – namely, the relationships, culture and underlying interests of the individuals involved. If the particular company is one that is still led by the founder, or where the founder is still a member of the board or the management team, then we need to recognize their ability to influence many of the participants and the outcome, and thus pay very close attention to the founder’s interests.

In a negotiation, there is sometimes a need to have Difficult Conversations that some or all parties may rather avoid. Active communication techniques that are genuinely applied will help by uncovering true underlying interests, by revealing other interests that were not communicated, and by exploring creative options. The use of active listening, reframing and empathy can help a negotiator recognize overseen opportunities in collaborative deals, as well as uncover unforeseen opportunities in situations where the parties are in conflict.

Whether one is a founder of a company, works with a founder or is trying to negotiate with a company that has a founder – there is a need to be able to understand what interests to look for, and to consider them while thinking about options and alternatives to agreements. As I mentioned many of these are often not discussed, or are even considered non-discussable. For example, consider the founder-CEO who is working 60 hour weeks, recruited the company team in person, knows all the customers, came up with the innovative idea, invested some own funds, delivered on all the development milestones and thus achieved a super-star status. Who would want to be one initiating the discussion about the need to replace this CEO with an external hire?

While approaching such a situation we should use the tools that “Getting To Yes” teaches us: treat such as issue as a joint problem-solving situation, use some subjective metrics for reference, explore the core interests of the relevant individuals, help think through the consequences of the alternatives, and most importantly – try to separate the particular person’s position from the discussion of the particular situation. So, instead of the founder-CEO hearing the surprise “It’s time for you to go”, the negotiators can focus on the founder’s interests which will likley include both identity elements as well as recognition and financial benefit for their contributions and accomplishments, and negotiate a joint problem-solving process and an outcome with the founder-CEO to secure a successful transfer of leadership.

One useful approach is to use the book “The Founder’s Dilemmas: Anticipating and Avoiding The Pitfalls That Can Sink A Startup” to help us understand these situations and to provide us a broad qualitative and quantitate reference point for discussion. In this book the author, Professor Noam Wasserman of the Harvard Business School, examines the decisions by entrepreneurs that can make or break a startup and its team. Drawing on a decade of research, Wasserman reveals the common pitfalls that founders face and how to avoid them. He looks at things such as whether it is a good idea to co-found with friends or relatives, how and when to split the equity within the founding team, and how to recognize when a successful founder-CEO should exit or be fired. Wasserman highlights the founder’s need to continuously balance controlling the startup and attracting the best resources to grow it, and demonstrates why sometimes the easy short-term choice may turn to be the most perilous in the long term.

The knowledge we gain from Wassermann, based on his popular Harvard Business School course of the same name, is based on the inside stories of many founders, and on quantitative survey data from thousands of founders and companies. While his course was geared towards educating aspiring entrepreneurs about what may lie on the road ahead, it is useful for current founders as a tool for self-reflection and for anyone dealing with a high-growth company. When approaching a negotiation with a high-potential company, one should map out the company’s relationship network and could use Wasserman’s book examples and data to explore the various interests of the individuals.

It is only through the uncovering and addressing of all the relevant interests, the full exploration of subjective metrics, the brainstorming of options and the risk and opportunities analysis of the alternatives, that truly successful negotiations can occur that will lead to long lasting successful agreements.

Samuel (Mooly) Dinnar a senior negotiation trainer and mediator with Meedance in Boston. His specialties are in strategy, negotiations, high-growth management and dispute resolution, with over twenty years of experience as an executive, venture capitalist and board member. He can be reached at sdinnar@meedance.com

Books Mentioned:

Getting to Yes: Negotiating Agreements Without Giving In

The Founder’s Dilemmas: Anticipating and Avoiding the Pitfalls That Can Sink a Startup

Fortunately, everyone was interested in being heard and in contributing to the future of the institution that they loved so much. Also, it was possible to get everyone to commit to a half-day “retreat” at the school on a Saturday.

The day started by “breaking bread” together over bagels and coffee, followed by going around the circle with warm-up introductions and then singing in a round together as a way of opening up. After an hour of discussion, setting the background and ground rules, everyone was off in mixed groups of four to start our brainstorming segment: “Paint a picture that represents the school”.

There they were in the big room, in foursomes. Among them were,:

–      Two high powered attorneys

–      A CEO of a life-sciences Company

–      A financial Services Vice President

–      An Engineering Executive

–      A software Developer

–      A publishing manager

–      A public advocacy expert

–      A high tech entrepreneur, and a venture investor

As well as, among others:

–      Several nursery and kindergarten teachers

–      A couple of language teachers

–      An administration manager

–      Music and Art teachers

–      A building facilities person

–      Several class teachers, and subject teacher specialists

With crayons, markers or paintbrushes at hand, it first it felt awkward for some. But then the power of using art as a connecting fabric worked its magic. Some people started throwing out ideas to their group. Two groups talked about the school as a tree, another group contemplated it as a solar system, one group as a musical orchestra, two groups imagined the community as an agricultural field and one was heard having great laughs around the representation of the school as a cow including hoofs, a bell, a calf, milk, and also manure.

The result was amazing. When everyone reconvened, they all reviewed with great openness and warmth the “artistic” results of the various groups together. Afterwards, the group was guided by the facilitator to go over the list of items and ideas that came out during the “art review” and transition to a relaxed open-minded brainstorming discussion about the various options for the school governance structure. As the day wrapped up they were once again a group of individuals, with various individual ideas and a lot of peer respect. Everyone was heard, and everyone contributed to the brainstorming of options. Some new friendships were forged and some existing relationships strengthened.

Today, it is several years after that day. The school community members benefit greatly from the successful implementation of the new governance structure that resulted from the series of meetings. The school community has continued to grow and improve in its communications and decision-making processes, and the memory of that one powerful day will forever stay an incredibly strong in my mind. Art and social dynamics do open our brain and heart to effective brainstorming. They can and should be used appropriately as leadership and influence tools.

Samuel (Mooly) Dinnar a senior negotiation trainer and mediator with Meedance in Boston. His specialties are in strategy, negotiations, high-growth management and dispute resolution, with over twenty years of experience as an executive, venture capitalist and board member. He can be reached at sdinnar@meedance.com

Agassi, an Israeli born entrepreneur who lived much of his business life in the US, founded his company “Better Place” to pursue his vision. He spoke in Boston in 2008, and captivated the local audience at the Museum Of Science with his pitch. That year, Aggasi was named one of Time magazine’s “Heroes of the Environment,” and he explained how Better Place’s revolutionary model for scalable, electrified personal transportation will liberate cars from oil, reduce carbon emissions, and facilitate an era of sustainable mobility. Since then, through partnerships with government leaders, auto manufacturers, energy companies, and other key parties, Better Place successfully raised over $800 million to build the world’s first all-electric transportation infrastructure. Israel, Denmark, and Australia were the first countries to embrace the Better Place model, and Better place put forth a strong global team of players in various countires. In fact, Agassi will be replaced as CEO by one of them, Evan Thornley, the current CEO of Better Place Australia.

The vision of not so long ago is now becoming a reality. Aggasi is quoted as saying “Five years ago I pursued a vision of weaning the world off oil and its dependency on it, and last month I drove across the state of Israel in an electric car. Very few people get to transform such a complex vision into reality in five years”. Yet in what is seen as a surprise move, this global and Israeli icon has now been fired from his CEO position. Why?

Why is it that founders are replaced as CEOs of “their own” startups? What happens to the startup after the founder is replaced with a professional CEO? Prof. Noam Wasserman of the Harvard Business School has been teaching and studying these kind of questions for over a decade, and he details these “Founder Dilemmas” in his new book by the same title. Prof. Wasserman shows us that founders’ most common motivations are building wealth, and controlling the growth of startups. Naturally, they also want their “baby” to succeed, and so how succession in managed is also of great interest to them. Prof Wasserman has conducted surveys of over 10,000 founders, reflecting more than 4,000 high-potential startups, from the two central industries of technology and life sciences. Together, these industries dominate every measure of young startup employment and funding (around half of the IPO’s in 2000-2009, and three-quarters of Angel and VC money invested in this decade). Technology and Life Sciences are also two areas where making the world a better place is at times a strong motivation for the founders and the investors, as well as two industries that have a strong presence here in the Boston area, as well as countries such as Israel. There are many lessons learned about founders and high-growth companies from Professor Wasserman’s research and they are grouped into Pre-founding career dilemmas; Founding Team Dilemmas – including Solo-versus-team, relationships, roles and rewards; Beyond the founding team – including hiring, investor and CEO-succession,

As Prof. Wasserman explains, the fonder-CEO succession event is likely to be traumatic, but as a process it has the opportunity to be productive and rewarding as well. In Agassi’s case, the Chairman of the Board is quoted as saying “It is almost five years to the day since Shai launched Better Place and a natural point in the company’s evolution to realign for its second chapter and for the challenges and opportunities ahead”. For the sake of the world’s environment and future green technology founders, we are all hoping that the company can successfully navigate these challenges and help the world capitalize on the opportunities.

Samuel (Mooly) Dinnar a senior negotiation trainer and mediator with Meedance in Boston. His specialties are in strategy, negotiations, high-growth management and dispute resolution, with over twenty years of experience as an executive, venture capitalist and board member. This blog was posted in relationship with Dinnar’s work as a member of the NEIBC Life Sciences Summit 2012 Organizing Committee, and the successful conference where Dinnar introduced Professor Noam Wasserman as a speaker. He can be reached at sdinnar@meedance.com