Five Failures of Mediation … and What Mediators Can Do About It
Harry Kaminsky – Principal, Kaminsky Mediation Consulting
I was initially trained as a divorce and family mediator in 1983 by John Haynes. This was by far the best training program I have had the privilege of participating in and it changed my life. Since then I have participated in mediation training programs that focused on construction, employment, and commercial practice areas. Some programs emphasized the facilitative approach to mediation; some stressed the need for evaluation, while others highlighted the possibilities of transformation.
I have been actively training mediators since 1985. I began by training volunteer community mediators for a community mediation program I co-founded. I have since trained a diverse spectrum of professions including in-house counsel and human resource directors; retired judges and labor union representatives; and child welfare workers and academic ombudsmen. But for the past twenty years, I mostly trained attorneys looking to add mediation as part of their legal practice or those considering retirement from the practice of law and seeking an opportunity to assist clients in ways that were unavailable to them in their practice as an advocate.
It was apparent while observing participants in training programs, that some had innate skills that would likely assure they would become excellent mediators. Others would clearly need to practice their newly learned skills but demonstrated a good understanding of what they needed to do to become more proficient in the practice of mediation and I was confident that they would enhance their skills further following the training. It was very rare when I observed someone who had little capacity for evolving into a good mediator. These exceptions generally came from those who had a hard time giving up the use of the expertise that had brought them past success. This was so with a former judge who explained to me that he enjoyed telling people what to do and was confident that he was right most often and that the parties eventually saw the wisdom of his decisions. I responded to him by recommending arbitrator training.
Since the overwhelming majority of trained mediators demonstrate a propensity towards utilizing beneficial skills in their initial training, what is it that makes so many parties and their advocates dissatisfied with mediation outcomes? It is my belief that parties, advocates, and mediators have collectively failed in these five areas:
1. transforming positions into interests
2. correctly identifying interests
3. effectively communicating
4. negotiating using principled negotiation methods
5. identifying what a satisfactory outcome might look like
Let’s explore each of the five failures and then discover what we can do to restore the promise of mediation.
Failure to transform positions into interests
In any dispute between two parties (i.e. me and you), my position may be defined as my unique view of our problem that leads me to my solution. Your position is your distinct perception of our problem that guides you to your solution. If our perspectives were identical and our solutions the same, we would not need to negotiate and would not be in mediation. We mediate because we see the problem differently. The bad news is that when these contrasting perspectives lead us to different positions, we find each other’s solutions unacceptable. The good news is that even with different perspectives there may well be areas in common in which we may agree. A key to success in mediation is the ability to transform our positions into interests.
In most disputes involving the potential exchange of money, positions tend to look like this:
Party A’s position is to seek $150,000 for an alleged wrong by Party B.
Party B’s position is that they did no wrong and therefore do not owe anything to Party A.
When positions are stated in this way, what typically occurs is a negotiation dance in which Party B offers $25,000 to settle the case and go home in order to avoid more time and expense in dispute resolution proceedings. After a caucus session or two, Party A counters by saying they would accept $125,000. After more caucusing, Party B offers $50,000. The exchange goes on and on until eventually the case settles for $75,000. Neither party attains the solution inherent in their stated position and each leave unhappy.
But it doesn’t have to be this way. This is what could have happened:
Party A believes they were wronged by Party B and based on the criteria they used to assess their damage believe $150,000 would satisfy the wrong. Due to current cash flow problems their interest is to avoid prolonged litigation and get as close to this amount as soon as possible under the theory that the certainty of some money now is better than the possibility of more money at a later time.
Party B believes they did no wrong in this particular case and ideally should not have to pay anything to Party A. However, there is a possibility that some questionable business practices might be made public during a prolonged litigation that could be detrimental to them in future matters and they would like to avoid this. Therefore, they are willing to pay Party A an amount less than the $150,000 stated in the claim as long as a confidentiality agreement is part of the settlement.
The same negotiation may now occur as described above but when each party clearly understands their interests the outcome takes on a whole new meaning.
Party A is pleased to end the dispute today and receive $75,000. This satisfies their current cash flow concern, which is their primary interest. This is not the settlement they would have liked under ideal conditions but it is the best they believe they can do considering their present circumstances. Therefore, they are happy with the outcome.
Party B is also happy to achieve a settlement today and to avoid potential litigation. Although they will pay $75,000 which under ideal conditions they would have avoided, they believe that a $75,000 payment is better than having some questionable business practices aired in court which could cost them more money at a later time. They now have the opportunity to change these practices and avoid more costly future matters. Under the circumstances they found themselves in at this point in time, they are happy with the outcome.
Failure to correctly identify interests
I was recently told of a mediation that involved the sale of a family business. The mediation concerned disagreements between family members regarding the value of the business and ultimately the money each would receive upon the sale. Over the course of several hours each family member identified a payment that would be satisfactory to them using an agreed upon criteria for a fair division. The business was then sold for an acceptable price, being in the range identified by all. Terms were successfully negotiated and each family member received a payment equal to the amount they agreed upon in their negotiations.
This would seem to be a successful mediation. However, when asked after the sale was completed how satisfied they were with the mediation outcome that led to the sale of the family business, one of the family members responded that they were very dissatisfied. She stated that for her the discontent was not about the money, but rather that she would have liked to have explored the opportunity to stay on with the business in some capacity. When questioned further she acknowledged that she never brought this up in the mediation and although she never felt good about the proceedings she did not fully realize that she wanted to retain some role in the business until after the sale. Both her attorney and the mediator had focused discussions on the fair value of the business and she had thought that her interests would be served by receiving a proper payment. Rather than trying to assist in identifying the dissatisfaction being felt throughout the process, her attorney addressed her discomfort by stating that no one ever gets all they want in mediation and that a sign of a good settlement is when everyone goes away feeling a bit disappointed. Failure to identify her interests resulted in dissatisfaction with the outcome and a negative view of mediation.
Had she understood her own interests better she might have been more satisfied with the process and its outcome may have been very different. She of course bears some responsibility for an outcome that is less desirable than it could have been. But it is also understandable that a party to a dispute would have some emotional clouding making interest identification a challenge. If represented by counsel, the responsibility rests in part with the advocate to explore client interests for a satisfactory outcome. But while working with a skilled attorney might assure interests are explored it does not guarantee they are correctly identified. What then? This is where the skills of an effective mediator come into play. An effective experienced mediator can often sense that settlement discussions are moving along a path that seems inadequate to one or more parties. Body language and tone in responding to questions help tell each parties story. They give signals that interests have not yet been fully identified. More time exploring interests and less on driving settlement may prove to be the best way to provide a suitable process for all.
Failure to effectively communicate
The most difficult aspect of any negotiation is the part we most often take for granted. This is the ability to effectively communicate. All verbal communications involve at least three steps and each step creates the opportunity to either correctly deliver or distort the message. The three steps are simple enough.
1. First we have to think about what we mean to say.
2. Then we have to say it the way we mean it.
3. Finally, the person we are speaking to has to hear it the way we intended.
These steps seem simple enough but executing them can be challenging. Consider the following:
Valerie is a nursing supervisor at a large medical center. Joanne is a relatively new employee and works under Valerie’s supervision. In passing, Valerie stops Joanne and has the following conversation:
Valerie: “I just wanted to let you know that you’ve been doing o.k. so far. Keep it up.”
Joanne: “What have I been doing wrong?”
Valerie: “Nothing … you are doing well.”
Joanne: “It’s important to me to excel. What can I do to improve?”
Valerie: “Sorry … what I meant to say is that you have been doing excellent work in the short time you have been here. Keep up the good work.”
Let’s see what went wrong for Valerie.
While passing Joanne in the corridor, Valerie thought she would give a pat on the back to her new colleague. In this brief and casual communication she used the expression “o.k.” to describe Joanne’s work performance. Had she thought more about what she wanted to convey to Joanne, she might have chosen another word or expression but she first said “o.k.” and this was not really what she meant. Joanne correctly heard what was said but it was not what Valerie intended. When Joanne asked Valerie how she could improve, it triggered Valerie’s intended message, resulting in a more positive conclusion to the brief conversation.
But what would happen if Joanne said nothing and kept on walking, with the belief that her supervisor thought she was doing just an o.k. job? Feeling that she was doing excellent work which was not being appreciated by her supervisor, Joanne may have developed resentment and anger towards Valerie. This might have developed into a future conflict with possible negative impact on the work environment. And this was just a brief conversation with a compliment as the intended outcome.
Now imagine the failure to effectively communicate in a hostile dispute between two or more parties each represented by counsel and working with a mediator. The dynamics of a simple communication gets exponentially more complicated. Generally speaking in a contentious mediation the only one who may be truly heard is the mediator. Therefore, it is vital for the mediator to model good communication skills, starting with steps one and two … thinking about what we mean to say and saying it the way we mean it. If we do this well then there is a likelihood that all parties will hear it as it was intended. The far greater challenge is communicating the disputing parties’ interests and offers to the other. I’ll save this discussion as well as the complexities of asking questions and responding to them for another time.
Failure to negotiate using principled negotiation methods
Ask people what the goal of negotiation is and they might reply that it is to get the most out of the other side while giving up as little as possible. Both sides involved in the negotiation might even agree. But that should not be the goal of mediation. Mediators learn that the best way to resolve an issue in dispute is to align the common interests of both parties so that instead of battling each other and creating additional problems, they work together to resolve their common problem. Success is achieved when each side has met their primary interests in the best way possible under the present set of circumstances. This was illustrated in the example used in the section “failure to transform positions into interests.”
Rather than bargaining over positions and trying to best your opponent, Fisher and Ury in their definitive book on negotiation, Getting to Yes, implored us to focus on four basic points … People, Interests, Options, and Criteria. Their methodology taught us to:
1. Separate the people from the problem
2. Focus on Interests, not positions
3. Invent options for mutual gain
4. Insist on using objective criteria
Every mediator training program I have seen incorporates these principles into their mediation model. But have we all lost sight of them? Have we consciously abandoned them in pursuit of settlement at all costs? Anecdotal accounts of dissatisfaction with the outcome of a mediated settlement suggest that this is so. When principled negotiation methods are used in mediation, parties feel better about the process and more satisfied with the outcome.
Mediators must work harder to suggest, teach and model these methods especially when dealing with difficult parties and their counsel. There may be times when settlement is the best we can do, but we must aspire to fulfill the promise of mediation by incorporating principled negotiation methods into our practice. If we have forgotten how to do this or are skeptical regarding their utility, we should attend a new mediator training program once again with a perspective born from experience as a practicing mediator. Raise questions, challenge assumptions, give examples from cases you have mediated, and truly listen to the responses from instructors and fellow participants with an open mind. Maybe you will find the ideal is more achievable than you think.
When you aim for the most desirable outcome in mediation, where people are treated respectfully while still working hard on the problem; where parties’ interests are explored rather than focusing on their positions; where creative options are discovered that benefit all parties; and where objective criteria are agreed to and used to measure options, then it is possible to achieve a mediated settlement where parties and counsel leave satisfied with both the process and their outcome. This is the ideal and it is possible to achieve.
When pursuing the ideal we may at times fall short. We may still be able to settle the case but maybe all interests have not been satisfied. Perhaps one side feels that they gave up more or received less than the other side. Perhaps they feel the mediator was harder on them than the other side. This is unfortunate but not more so than a dispute that does not settle at all, where additional dispute resolution processes must be used and additional costs and acrimony accrued. So achieving settlement that is short of the ideal is disappointing but acceptable. It is still very positive when parties can circumvent the unknown by leaving with an agreed upon settlement, even when it is not all they desire. But this type of outcome should not be our goal for I know this for sure. If you aspire to the ideal you may at times fall short but there will be other times you will attain it. However, if your goal is simply settlement, you will likely never attain the ideal and the promise of mediation will not be fulfilled.
Failure to identify what a satisfactory outcome might look like
In one of my favorite songs written by George Harrison titled “Any Road”; he declares “If you don’t know where you’re going any road will take you there.” As applied to mediation, any road may indeed take you to settlement but not necessarily the one you hoped to achieve.
In order to attain a desired outcome you first need to identify what a successful outcome might look like. Failure to do this leads to a settlement that does not achieve the promise of mediation. The deal gets done; court room acrimony is avoided; and the parties likely save money in the process, all desirable peripheral outcomes; but the party who fails to have their identified interests met leaves mediation dissatisfied. This is illustrated in the example used in “failure to identify interests.” They enjoy the side dishes but wonder what happened to the main course.
Each individual participating in a mediation session together with their attorney and their mediator must envision and articulate what a good outcome will look like to them, so that collectively they can find the right road to get there. An effective partnership between parties, their representatives, and the mediator is crucial in identifying satisfactory outcomes and fulfilling the promise of mediation. I know that working together we can get there.