Five Failures of Mediation … and what Mediators Can Do About It (part 4)

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.


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