Building Great Relationships on your Board of Directors

Building Great Relationships on your Board of Directors – What you can do to have effective relationship and manage conflict when serving on a Board of Directors (BOG)

Background of Conflict Resolution and Board of Directors/Boards of Governors

Are you a director or executive member of a non-profit organization or corporation? Do you have a conflict on your Board of Directors? 

As a facilitator and conflict resolution expert, I focus my work on volunteer Boards of Directors. I wrote this blog for anyone interested or involved in serving on an agency board.  Conflict is an important part of growing a strong board, listening to different perspectives from the community and helping an organization have a positive impact on the community (read conflict is good for business). Planning ahead to understand what conflict could look like, having an agreed upon process for resolution and learning how to use the process is a valuable skill to develop as a board member.  When you master conflict resolution and integrate it into your work, you improve the chances that your agency will achieve its overall goals.

Introduction to Conflict Resolution and Board of Directors

Serving on a Board of Directors for a not-for-profit agency is an excellent opportunity make a contribution to the community.  You can shape the future of the organization by making a contribution of your time, expertise and knowledge.  The ability to identify and resolve conflict is a necessary skill. There are different types of disputes you can experience on a Board.  Some can be resolved quickly and others will require a process for resolution.  This post will outline four things you can do to establish a framework to make conflict resolution work for your Board of Directors.

1.     Establish a Dispute Resolution Policy

     The Board Dispute Resolution Policy should outline the process for identifying, addressing and resolving a dispute that involves board members or their single employee (e.g., CEO, Executive Director).  The policy should state that dispute resolution is an important tool for the Board to use when there are significant issues that appear to be difficult to resolve.

The document should include the following elements:

a.     A definition of conflict

b.     The process for the resolution of the conflict

c.     The phase in the resolution process (e.g. negotiation, mediation)

d.     Who should be involved from the board to assist with the process

e.     If outside assistance is required, who will be involved

f.      A method to record lessons learned

g.     A date for the annual review of the policy

h.    The dispute management process. 

Building a policy should be based on the literature and well-known tools for effective negotiation and dispute resolution. See the Meditate2Go blog on creating an organizational dispute resolution program and policy.

2.     Board Orientation and Continuing Education

     Training and education should support the policy.  The annual Board Meeting schedule should incorporate training. Everyone should have an opportunity refine and develop their skills to identify conflict, apply the conflict resolution tools and obtain feedback. The learning process can utilize a wide variety of methods including case studies, role plays or guest speakers.  Actively engaging the board members in the learning process is the key to success.

3.     Apply the Tools for Emerging Challenges and Opportunities

     Every organization faces a wide variety of challenges and opportunities.  The challenges can consist of conflicts between board members, with staff or with other agencies in the community [1]. The opportunities will often present themselves as a chance to expand existing services, create new services or build new facilitates.  Negotiation and conflict resolution tools can be helpful to build partnerships and find solutions to challenges or opportunities. Applying the tools as a Board is a positive way to strengthen relationships in the community and find new and innovative ways to work with other organizations.  See the Meditate2Go blog on Interest-Based Approach to help your Board work with other agencies in the community.

4.     Engage the Local Mediation Community

     Every community has a rich resource of people trained and willing to assign an organization with dispute resolution training, mediation, and effective conflict coaching.  Learn about the mediators in your community.  A strategic partnership local mediators can help the organization develop healthy relationships in the community, provide a framework for exploring new ideas among groups and assist the Board in moving forward with challenges and opportunities.

The Board of Directors is a critical element in the long-term success of community agency.  Building excellent relationships between board members will involve having a framework for identifying and resolution disputes.  Establishing a Board policy, engaging in ongoing training, using the dispute resolution tools and partnering with mediation experts in the community can make your time on Board a constructive and positive experience.  Good luck as you play a critical role in the community as a member of the Board of Directors.

Contact the Mediate2go Blogger:

Jerry Mings is a facilitator and mediator with enormous experience in the health and social sector. His work is focused on Boards and Senior Teams as they work in the areas of organizational priorities, dispute resolution strategies and effective community partnership opportunities. With over 18 years of practice, his work has involved national health  charities,  government funded organizations and private sector service firms. In addition, Jerry designs public participation systems and asynchronous facilitation methods using the Internet.

[1] Marion peters Angelica, “Resolving Board Conflicts” (1999) The Grantsmanship Center. 

What is ADR?

What is ADR?

Alternative Dispute Resolution

Introduction to ADR

Popular television shows depict trials as the climatic event – an intellectual sparring of wit and strategy – and the whole dispute is over within an hour. In reality, legal disputes drag over months or years before a trial may take place. Preparation can be tedious and insipid, while 95% of lawsuits will settle and never even go to trial, which has led some lawyers to write about the phenomenon of the “Vanishing Trial”.[1]

Most lawsuits today are resolved through Alternative Dispute Resolution (ADR). ADR refers to various processes to resolve disputes outside of the formal public courts system. The main forms of ADR are negotiation, mediation, and arbitration, although there are also hybrid processes such as the minitrial, med-arb, and early neutral evaluation.

A Spectrum of ADR Options

ADR options are organized along a spectrum, from negotiation, which is the least formal process, to arbitration, which is the most formal process and therefore, the most similar to a trial. The more informal the process, the more control the parties have. In more formal processes such as arbitration, the parties have less control because the outcome is determined by a third party. Mediation falls somewhere in between. These processes are by no means mutually exclusive, and parties may pursue these options in sequence, or even at the same time.

Negotiation is the most informal process and has the fewest rules and procedures. Parties may negotiate directly with each other, or through their lawyers. Mediation involves a neutral third-party who does not impose a solution but helps the parties reach a resolution by facilitating more structured negotiations. The parties retain control over the final agreement. Arbitration is the most formal process where a third party adjudicator has the power to impose a binding solution on the parties after hearing each party’s position.

Key Differences Between ADR and the Traditional Trial

Trials are open, so all members of the public, including journalists, are welcome to attend (with a few exceptions in special cases). Furthermore, trial decisions are published and establish a precedent for future cases. In contrast, ADR is private and the result remains confidential between the parties.

The courts system is a formal process with rules of civil procedure and statutory deadlines. ADR is crafted to suit the needs and demands of the parties, and may take many different forms.

Trials are adversarial, where each party advocates that the law favours its position, and the judge ultimately rules in favour of one party. Although in ADR each party is seeking to maximize personal gains, the parties accomplish this through cooperation and compromise, rather than a winner-takes-all situation. Especially in non-adjudicative options such as mediation, “a mediator can often persuade the parties to resolve their dispute without determining which of their positions is ‘right’”. [2] Because ADR is less adversarial, it is better suited when parties want to continue their relationship beyond the present dispute.

Advantages of ADR

Some of the advantages that make ADR appealing are:

1.     Cost

The cost of a trial has made it prohibitive. In 1995, it cost each party over $40,000 in legal fees to go to trial, and in 2011, this estimate was close to $60,000.[3] This astronomical cost is out of reach for many people and even corporations, and is often disproportionate to the amount in dispute. Moreover, since the losing party is often required to pay part of the winning party’s legal fees on top of its own, this penalty serves as a looming risk and a deterrent for parties to go to trial.

The cost of resolving a dispute informally through ADR is much lower, and parties have more control over the process and the resulting legal fees. For smaller disputes, parties may choose less costly mediators, but select specialized mediators at a higher price for more complex disputes. A dispute over a $100 million may be resolved in a single day, negating the need to spend months of expensive preparation for a trial.

2.     Speed and efficiency

A backlog in the court system has meant when litigants request a trial date, they have to wait one or two years from that point, and even longer in some jurisdictions. Even after trial, parties may wait weeks or months for a decision to be released.

In contrast, a mediation or arbitration can be scheduled within a few months, and can be resolved fairly quickly. While courts usually discourage forum-shopping, which is choosing one court over another, ADR allows the parties to choose a decision-maker who best fits their schedule and needs. In mediation, the mediator does not make a decision, rather helping the parties come to a solution collaboratively. ADR may also remove the need for pre-trial procedures such as examinations-for-discovery and motions, which may be time-consuming and cause further delays. Instead, if there is a dispute about evidence or submissions, the parties may informally negotiate a mutually acceptable solution.

3.     Customizing the process

ADR is flexible to become whatever the parties agree to make of it. Parties may set their own procedures and decide which law applies. Most courts have judges who are generalists and must decide on cases ranging from criminal convictions to complex shareholder disputes – although there a few exceptions for Family Law Court or the Commercial List in Toronto. But in ADR, parties may choose a decision-maker who is a recognized expert in the area of the dispute.

Parties are free to use whichever form of ADR best matches their priorities. Parties may choose to air their grievances, or to never speak to each other except through a neutral third-party. They can choose whether their priority is to reconcile the parties in conflict or simply to reach a binding decision for the dispute at hand. Moreover, the parties can tailor the resolution to their own needs. Unlike court decisions, which often grant judgment in the form of a monetary payment, in ADR the parties have a greater range of options. Sometimes an aggrieved party may be simply seeking an apology or an acknowledgement that his/her actions were right. In other cases, one party may want to maintain the relationship while having a discrete issue addressed, which is easier to accomplish in an informal ADR atmosphere than in an adversarial process that pitches one party against another.

4.     Privacy and maintaining relationships

Another advantage of using ADR is that the situation giving rise to the dispute, the conflict resolution process, and the outcome all remain private and confidential between the parties and any decision maker. Typically, the decision-maker will require all participants to sign a confidentiality agreement. Privacy may be an important factor when there are claims that could significantly harm one party’s image and reputation, e.g. allegations of fraud, sexual harassment. With a private ADR resolution, the parties avoid being publicly convicted and may even agree to a no-fault settlement.

The ability to privately and quietly resolve a conflict allows parties to maintain their relationship if that is one of their goals.

When a Trial May be Preferable to ADR

ADR is not suitable for every legal dispute. Disputes involving the interpretation of a new statute or provision, the application of the Charter and Constitutional rights, and other public interest litigation require a public ruling to establish a precedent. Class actions may require litigation in order to ensure that all plaintiffs receive an equivalent remedy, rather than separate and inconsistent results. A trial is also preferable in situations where the defendant is being sanctioned, its conduct is condemned, and deterrence is a goal.[4] 

About the Author - What is ADR

Rhema - Legal Dispute Blogger

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

---

[1] Robert M Ackerman, “Vanishing Trial, Vanishing Community? The Potential Effect of the Vanishing Trial on America’s Social Capital” (2006) J Disp Resol165.

[2] Frank E.A. Sander and Stephen B. Goldberg, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” Negotiation Journal (1994) 49 at 56.

[3] George W. Adams, Mediating Justice: Legal Dispute Negotiations, 2d ed (Toronto: CCH Canadian Limited, 2011).

[4] Sander and Goldberg at 60.


 

Contract Negotiation Tips

Tips to Keep in Mind when Negotiating a Contract

Contracts are one of the most elementary components of our legal system.  They can be long, short, written, verbal, and contain a single sentence or a novel-worthy page count.  In essence, they are any type of agreement that describes a “this-for-that” exchange of rights, obligations, money or services.  Many contracts, like simple purchases or contracts for quick services or utilities, are non-negotiable.  However, even in those situations, there may be more room for negotiation than you think.  If you find yourself in the position of being able to discuss what your contract might entail, here are some basic tips to keep in mind when preparing for a negotiation.

Contract Negotiation Prep Work

You need to know what rights and obligations you’re actually talking about in order to have a hope of successful negotiation.  This stage is crucial.  Contractual terms and desired outcomes can change during the course of negotiation, but it will almost always be easier if you have the fundamentals laid out.  Ask yourself questions like the following:

What is the current state of affairs, and how will it change? 

This is a very important step, and, depending on the nature of the contract at hand, it can be easy to get ahead of yourself.  A careful period of self-reflection can be useful before proceeding.  Think about whether you have an ongoing relationship with the other party already, and whether you stand to gain or lose anything from negotiations or from entering a contract. Think about the other party’s relationship with other persons (both before and after you come to an agreement), and think about how entering into the contract will affect your own relationship with the other party (and third parties!). 

What must I receive from the other party? 

This is the bare minimum that you need to get out of forming the contract. Is it clear and obvious to both parties that this is what you need?

What is the most I am willing to give/pay/agree to perform?

This is something you can keep to yourself, but it’s still a good self-reflective tool to prepare yourself.  Think about your budget, time constraints, or the amount of time you may be willing to perform an obligation.

What specific objects/rights/obligations do I truly intend to form the basis of the contract?

Try not to assume things will just work themselves out. Be clear about your position, ask questions from the other side, and know what the scope of the rights and obligations might be.

Is my (or the other party’s) intended result even possible?

Sometimes, negotiations can carry on for some time before one side realizes a key piece of information that makes them realize that the intended effect just won’t work.  Clearly, in the interests of time, money, and efficiency, it pays to think about this question in advance. 

“What-if...?” Questions:

Hypothesize! For the sake of argument and analysis, ask yourself some “what-if” questions and see how the proposed contract follows through with the hypothetical.  Try to imagine what might happen if something fundamentally changes.  If it’s a lease, what if you want to move?  If it’s a job contract, what if you get sick?  This type of thinking leaves you better prepared to use hypothetical arguments as leverage, and can help you prepare answers for when the other party insists or asks for something.

At the Bargaining Table...

Once you have a handle on the issues from the first step, you may want to consider the following principles:

Don’t Overcomplicate

This can be particularly insidious with boilerplate contracts.  If the other party asks you to agree to something that doesn’t seem to apply to you, ask about it. If a term, clause or section serves only to confuse, consider removing it.  

Don’t Oversimplify

The counterpoint to the above is to make sure that your (and the other party’s) concerns are addressed adequately.  This is especially important as it relates to the hypotheticals that you have considered. 

Know the Definitions 

Many contract documents begin with an “interpretation” or “definitions” section.  It is typically crucial to understand what exactly various words in the document actually mean.  One of the implications of these sections is that you should probably not assume that a term that appears in the contract has the same meaning it might have outside the contract! 

Consider the Context

The context of your negotiations can be critical in ensuring that you obtain your desired outcome, or in protecting yourself from giving up too much for the sake of coming to an agreement.  Some of your “context” will undoubtedly come from your prep work (e.g. - knowing what a reasonable salary to expect might be, or what sort of common area expenses might be included in your lease).  Some of it may come from circumstance, such as a deadline or relationship with a third party.  Having a good grasp of the bigger picture will help a lot with timing your requests, demands, or refusals in negotiation.

Know When to Pause

Putting negotiations on hold can be a difficult judgment call, especially in time-sensitive scenarios.  But there are ample reasons when it may simply be better to wait.  More research may be required, the consent of a third party or client may be worth looking into.

Clarity is Key

Make sure the words on the page can only be read in the way the parties intend it to read! Ask yourself if there is a different possible interpretation. Consider making new defined terms rather than using a stock or official-sounding word.  Confirm with the other party that they get the same result when they try to interpret the meaning of specific terms.

Ask!

Communication is crucial in any negotiation setting.  Especially if one side has less bargaining power than the other, it is almost always helpful to ask questions, if only to confirm that what you think the contract means is correct.  If something seems to be missing, be explicit and ask for it! If it looks like the contract requires more of you than you were expecting, bring this up, too.  This is especially important when there is vagueness or ambiguity of terms.

Conclusions of Contract Negotiation

Contract negotiation can occur in a huge variety of settings, and knowing how to discuss and confirm terms is a worthwhile skill to be developed.  Remember that even if the other party suggests there is "no room" for negotiation, you still do not have to sign, and you can still ask questions. After you have read through these tips, then read about Negotiation Strategies and Tactics to better prepare.

These tips are intended to give some general tips for negotiation situations. If you feel overwhelmed, lost, or just in need of a bit of guidance for a specific situation, a great start is to seek out a lawyer, mediator or other counsellor who can give you professional help.  

About the Author - Contract Negotiation Tips

Dan - Mediate2go Editor and Blogger

Dan Lawlor is a Mediate to Go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a student-at-law with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling.
 

Negotiation Strategies and Tactics

Negotiation happens all the time, and often we are not even aware of it.  Sometimes, particularly when something is important to you, negotiation or even expressing your position can be a monstrously stressful task.  Whether at work or in your personal life, it can feel daunting or intimidating to have to approach the “other side”, whatever that may be.  Alternately, negotiation may not phase you in the least, though you may still wish to improve your efficiency in reaching an agreement.  Remember that many conflicts involve two or more viewpoints that could at least potentially reach an agreement.  It tends to be in both disputants' best long-term interests to settle before litigation, just as much as it is in the interests of co-contractors to effectively understand and agree with each others’ position before signing the deal.  I offer the following general suggestions to consider whenever you enter into a negotiation. 

1. Negotiation: First Things First

It is a good idea to reflect on and internalize any elements of the outcome that you absolutely must achieve. By this I mean the be-all-and-end-all, an absolutely essential component that must be part of any end agreement. Examples might be a hard budget, a deadline, or the involvement or actions of a specific person. Especially in cases where you represent more than one person’s interests in negotiations, it is best to get a firm grasp of what absolutely must be present to reach an agreement. Be careful not to underestimate the amount of time or critical reflection it may take to pinpoint these so-called “first things”. It is possible that your particular negotiation does not truthfully have any imperatives!  If that is the case, be prepared to recognize that, and be thankful that you will have even more leeway to reach a mutually beneficial arrangement.

I find that crucially important issues are best dealt with up front. Time, energy, and frustrating can be saved by fully disclosing your requirements to the other parties. This will affect how others can respond to you, and prevents unexpected surprise. Rare is the case where obscuring a crucial issue for disclosure at a later period works out favorably, and that type of strategy can easily lead to accusations of deception. 

Do not be afraid to clearly articulate what the “needs” of your position are. Introduce them early, and reiterate as necessary. Not forcefully, but tactfully and with the expectation that if one side cannot have its elementary needs met, there cannot be a mutually acceptable outcome. 

        

          2. Negotiation: Know Your Goals and Your Limits

The next and possibly most important skill is recognizing the hazier area between the "absolute-must-haves" and the "desirable but not indispensable". For this skill, I invite you to think about what you (or your client) would ideally like to achieve through the negotiation process. These are elements of any agreement or settlement that you could probably do without, or else they would be addressed in the "First Things First" category above. In most situations, there is a range of acceptable outcomes on a spectrum between your most desired outcome, and your least desired (but still tolerable) outcome. Giving yourself this spectrum to play with, and thinking about it in advance, will give you more peace of mind and a greater sense of where things stand when you converse with the other parties.  

There is obviously a close relationship between the ideal goals and the "imperatives" we talked about in step one.  The time to hash out which elements apply where, in your particular case, is before you start making offers or stating your position. Canvassing the possible outcomes of each element in dispute, as well as how desirable they are, is important when negotiating for yourself but even more important when acting on behalf of others. Negotiating for someone else carries even more responsibility, so it is best to be as prepared as possible.

Be aware that we often have knee-jerk reactions when we set limits or goals. Sometimes a few days of reflection, or even a few minutes, can cause us to realize that what we once thought was an absolute is actually subject to possible changes. Being able to keep these instinctive reactions in check is a good skill for any negotiator.

An excellent tool to practice this step is something at which most of us are already adept: "What-if?", and other hypothetical questions, like "What could..." or "What would...". 

Here are a few examples:

• What if they refuse to pay the target price?
• What if he can't meet until next week?
• What would I ask for in return if they need more from me?
• What if they spring something on me?
• What if they will not budge on issue X or Y?

         3. Negotiation: Know Your Audience

This is also a crucial step, and some preparatory work in this regard will often be useful when you enter into discussions. There are two pieces of this skill. The first is to try to understand the other parties' background. Chances are, you know some general information about who they are, and perhaps about the types of restraints they may have. Try to consider, in advance, what the other parties' answers to steps 1 and 2 above would be! It is rare that you will have access to all of the information or perspective that belongs to the other side, but thinking this way may help approximate it. 

The second piece is to consider how others might react to your position. Again, this is informed by steps 1 and 2. Think about what it would mean for the other person if you got exactly what you are asking for - both in terms of your essential needs and your ideal goals. Really think about this, as it can help you narrow down the range of acceptable outcomes you have settled on in step 2.  

In both of these parts, take caution not to draw too many assumptions.  Avoid straw-manning the others' positions, and try to uncover which issues you think will be "non-negotiable", that is, the other side's First Things. 

         4. Attune to the Negotiation Environment

No two negotiations are the same, and how you phrase your discussions may depend on variable factors. Remember that you may be negotiating whether face-to-face, in a mediation or settlement conference, or even writing an email. There is no catch-all way to present yourself that will work in every scenario. However, if you have gone through the above steps, it will be easier to gauge the appropriate tone or techniques.

If negotiating with sophisticated parties, you may feel as though you are at a relative disadvantage. In such cases, be sure to vocalize your needs so that you are understood. Your potential landlord may have a standard way things are done, but if it will not work for you there is little point pretending it will. It is possible that you or your client may feel pressured, sometimes exceedingly so. In many scenarios, including face-to-face negotiations, it is perfectly acceptable to make your feelings known. Saying "I'm feeling a lot of pressure right now and I think I will need [a few minutes or days, to speak with my partner] before we continue" can be helpful. No, perhaps not in time-sensitive situations - but recognize that many deadlines we set for ourselves are themselves negotiable. If delaying the closing date by a few days is necessary to make sure both sides feel satisfied with the arrangement, where is the issue?  Likewise, pausing an ongoing mediation for a month does not mean the sessions have failed. 

On the other hand, if it feels like you are more in control of things, remember that the other parties may be the ones feeling pressured or confused. It is good practice in these situations to remain calm and candid. Make the extra effort to try to understand the others' needs and desires so that any arrangement reached is well-understood and clear. Aside from helping to make the whole process more amicable, this strategy can help preserve an ongoing relationship with the other party, and may help guard against any future claims that the discussions were unfair.

Author

Dan Lawlor is a Mediate2go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a student-at-law with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling.

Search: #collaboration, #conflict-resolution, #confrontational, #negotiation, #negotiator.

Negotiation Strategies and Tactics