For many mediators, the starting point in a mediation is to identify needs and interests and then to work from there toward a mutually agreeable resolution. In the view of these mediators — and based upon the seminal work “Getting to Yes” by Fisher and Ury — this helps parties move off their positions and toward a resolution that would be acceptable to both parties. I posit that, while it is important to help parties think about their needs and interests (and I would add: desires), it is not always feasible to actually identify them. Helping parties think about their needs, interests and desires, rather than actually stating them, may sometimes be the best route to resolving complex, confidential and/or highly personal or emotional situations. In my experience, that is a high percentage of mediations. In highly personal or emotional situations, parties may simply not be able to identify all the factors that are important to them. How often do we, as humans, really understand ourselves that well? Psycho-therapists and brain researchers would say that our cognitive brains only understand a portion of what we care about, and that the part of our brain that is inaccessible to our cognitive thought has important information that is valid and relevant. Thus, we need to help parties focus on both their “gut” (the part of their brains that is inaccessible to cognitive thought) as well as their cognitive thought. The interplay between these two modes of “thinking” will help the parties best access what is important to them. The mediator is most effective when he or she is skilled at helping parties “think” in both realms as well as in helping parties check those realms against each other. In the mediation discussion, the parties can discuss the needs, interests and desires that they are willing and able to put on the table, but in addition to those, the mediator should help the parties reflect upon the needs, interests and desires that are unspoken and perhaps unknown in the cognitive sense.
Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.