Difficult conversations

Sometimes you need to have difficult conversations. Here is some advice from Chris Pickering, Client Manager in Fair Way’s Commercial Services.  

When working with stakeholders and dealing with clients, difficult conversations are inevitable and you must be prepared to deal with them. Swiftly and effectively resolving disputes is in everyone’s best interest, both in terms of economic and social wellbeing.

It is widely known that conflict can take a physical, emotional and financial toll, if not managed properly. The mere thought of having these difficult conversations may fill you with anxiety and distract you from other work. You don’t want to play the bad guy, and or have the situation blow up in your face. As much as it’s tempting, you don’t want to just avoid the whole mess either and put it in the “too hard” basket. Delays in dealing with an issue will run the very real risks of:

• reducing the window of opportunity for improving the problem;
• having the issue escalate or embed itself;
• damaging your reputation or making you look unprofessional; and
• misleading the individual to the existence or importance of the problem.

Tips for difficult conversations

Here are some pointers in how to deal with difficult conversations:

When a difficult conversation is needed, communication is key. You should let the other party know what the meeting is about and that your intention is to try to find an agreed outcome. Make a time and stick to it. Difficult conversations must not be rushed, so make sure you’ve scheduled enough time to deal with the issues that need to be discussed.

You should also prepare for the meeting. Seek the support of someone who can assist and advise you; perhaps a local colleague, a solicitor or the dispute resolution professionals at Fair Way. Take time to collate and analyse the issues before the meeting. Often, after analysing the data, you might identify opportunities to improve the situation. If so, you’ll no longer be giving negative feedback but be leading a constructive conversation about addressing the problem.

Be prepared for bad reactions. Finger-pointing, denial, arguments and tears are all possible outcomes of tough conversations. You cannot control the other person’s reactions, but you can anticipate them, and be emotionally ready. Is there something else about the individual or their personal situation that you ought to be aware of before the meeting? You should be prepared for their emotional reactions. How will you deal with this?

In the initial stages of the conversation, try and unpack the other person’s point of view by asking them what they think the problem is first. Focus on causes of the problem rather than the outcomes. You fix the cause, you fix the outcome. If you aren’t sure what is causing the identified problem, acknowledge that you don’t know. Importantly, focus on providing potential solutions. 

Get out of the blame game. As an example, in a building and construction dispute there may have been a mistake made by the builder, or the architect or homeowner which has resulted in the relationships between the parties breaking down and the project stalling. In this situation, a trained mediator might ask the question “What needs to be done today to get the building project restarted?” that would allow the focus to be on what needs to be done rather than whose fault is it. Each person involved in the situation has a different objective story about what happened. Your goal is not to judge who’s right and wrong, but to find better outcomes in the future.

If the meeting uncovers new information, or if things get heated, don’t be afraid to suggest a break in the meeting, whether that’s simply taking some time out, or arranging a time to continue the meeting on another day. This will be beneficial for all parties involved in the long run.

When the meeting is over and if you have arranged certain steps for improvement to be taken, personally follow this up. Do not delegate this task out in the first instance. You then remain connected to the individual and your agreed next steps to improvement. If the meeting resolved the issue, then it is resolved. You must demonstrate in action and words that this is so.

This last point is important with regards to meetings following-up and implementation of any agreement. Recently, one of Fair Way’s dispute resolution professionals held a phone conference with the parties to a dispute. Most matters were agreed, and the parties also resolved to communicate better with one another and change their way of dealing with one another. Unfortunately, after a few days, the parties reverted to their pre-discussion ways. The parties lost all that they had achieved in their difficult conversation by not sticking to what they had agreed to do. They had resolved the relationship issues to the extent of finding a way to continue dealing with each other, but those relationship gains were immediately lost by reverting to previous behaviours.

Look beyond the law

In law, one of the essential elements of a contract is the intention to create a legal relationship between the parties to a contract. Any outside party such as a Judge, who is asked to make a decision about any issue that comes out of a contract, first has to look at the relationship between the parties to determine the nature of the relationship and therefore the legal rights and responsibilities that flow from that relationship. However, our experience is that sometimes people can over-focus on the legal niceties.

A party wedded to thinking that they have the law on their side, may not see beyond that to a way of resolving the dispute. As with blaming the other side and demanding that you’re “right”, the best interests of the project may demand looking beyond that to consider how you might find a way to move forward together. In other words, the contract may be the foundation of the relationship, but a focus on the contract may not be the best way to resolve a dispute.

When you find yourself in this position, try looking beyond the contract. For example, questions like ‘what can we do today to fix this?’ or ‘is there something else we can try?’ and ‘where to from here?’ can open up new conversational avenues.  

How to start these conversations

Mediators often say that asking the right type of questions can also aid in a quick resolution. Generally, it is more beneficial to use open-ended questions at the start of your conversation, following up with more closed-type questions to confirm and probe on the details of the discussion. Three simple questions, which a facilitator or mediator might ask, elucidate a wealth of information that is so useful when it comes to those difficult times when it looks like a solution if hard to find. Those questions are:

• Who are you?
• How did you get into this relationship?
• What is it that you want to achieve from this meeting?

These are not easy questions for parties to respond to, especially not in a joint meeting, however they respect the fact that this is a problem created and therefore to be solved by the people in the room (again this goes back to the point of not playing the blame game). The parties have to accept responsibility for their part in the dispute, whether that was an unreasonable reliance on the promises made by either party or the fact that the solution requires further decisions from them to be made. Through staying together in the relationship, they are required to redefine the relationship that will be the outcome of the meeting. 

This approach enables conversations to develop about how the dispute might be resolved in a way that is sustainable and where the outcome can be described by the parties to interested third parties, who are often not present. It also opens the possibility for more collaborative and creative solutions.

For some parties it is important that it is a term of any settlement that neither party will speak in a derogative way about the other. For these provisions to have meaningful effect, parties need to discuss the reason why such provisions are so important and the consequences if one or other party decides to break this agreement.  In an increasingly joined up world, reputation is often one of the most important attributes in commerce. Sometimes those reputations are enhanced through resolving conflict. Commerce makes the world go around and is a relationship activity - it makes no sense if mediators fail to address relationship in resolving commercial disputes.

You can use this relationship focus to resolve your own disputes through having difficult conversations or ask the professionals at Fair Way to assist you with dispute resolution.

About Fair Way’s Commercial Services

If you find yourself in a dispute where the conversations have become stuck or you cannot resolve things directly, get in touch with Fair Way. We are experts in mediation. To find out more, please visit www.fairwayresolution.com or get in touch with us on 0800 77 44 08.