Five Failures of Mediation … and what Mediators Can Do About It (Part 1)

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.                                                   

(Part 2 will be published next week)

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