Therefore, a mediated negotiation is already, almost by definition, a negotiation which has either gone wrong or has never begun or which has a doubtful prognosis. During the course of most people’s lives, they are negotiating at various times for various things and millions of negotiations are accomplished every day without the need for the intervention of an experienced mediator. Thus from the outset we see that a mediated negotiation contains elements of difficulty which have led the parties to be willing to spend money on the expert services of a professional in the particular field.
Generally speaking, a party must experience doubt in order to arrive at a mediated solution. The experience of doubt is uncomfortable. The experience of certainty is much more pleasant. People seek certainty in order to avoid the pain of doubt. A party to a negotiation has usually achieved a measure of certainty with regard to the position that they are taking, and that certainty which is a mental state is fortified and buttressed by all sorts of considerations, feelings, emotions, attitudes and arguments, all of which are themselves mental states.
However, the nature of a negotiation is that a mutually satisfied outcome can never be reached unless each party is prepared to change position. Such change involves movement from a well-fortified position into a position of doubt.
The process of moving from one position to another is mentally taxing, which is why the presence of a mediator can be of great help and comfort. As soon as the parties have arrived at a new and different position, they will dig in with all kinds of arguments and considerations, emotional ideas and attitudes, and they will gradually or rapidly achieve a degree of certainty about the new position that they have now assumed.
It may be necessary for the parties to move position many times before they reach the zone of possible agreement (ZOPA). That is why they must oscillate between certainty and doubt, and that is why many people would rather resort to conflict, precisely because it is possible to engage in conflict without ever having to change one’s mind or experience the kind of mental tension that is involved in changing one’s mind.
Many organizations including government departments where the procedures for taking decisions are institutionalized and cumbersome, find it easier to leave the decision up to somebody else rather than go through the stress and trouble of taking decisions internally.
Many cases go to trial because one or other or both of the parties are simply unwilling to engage in the difficult task of negotiating a settlement. The task of the mediator, if such parties are willing to enter into mediated negotiation, is to help them overcome the internal barriers to achieving the changes necessary to avoid a third party outcome.
Many times the reason a matter proceeds to trial or other conflict is because one or both of the parties have simply misread the reality of the situation. All negotiations have an internal and an external aspect. The internal aspect is the individual’s own subjective reactions to what is going on. The external reality is what the legal system is designed to deal with; in fact, the legal system is designed to squeeze out of the process all mental or emotional reaction and to delineate only the facts that can be adduced in evidence that are relevant, that is to say, that have a bearing on the legal issues presented to the court. But here as well, the mediator has a vital role to play, in being a sounding board or one-person focus group against which parties can test the reality of their view of the situation.
Thus we see that parties may have a distorted view of reality, in addition to having inappropriate emotional attitudes to the issues. This is where we discern the difference between the apparent negotiation and the shadow negotiation, and the expert mediator needs to be expert in dealing with these different aspects. In this way, the task of the mediator is more complex than the task of a court, which has had all the emotional side of the case squeezed out by complex rules, so that a desiccated problem can then be presented for a legal resolution. But such resolutions are often unsatisfactory to both sides, and they are always unsatisfactory to the losing side.
Although mediated negotiation is difficult, and may be as trying on the parties than a trial itself, nonetheless it has the exquisite advantage that it results in a solution arrived at by the parties themselves. Such negotiated resolutions are far more stable. They not only result in finality, but also in a release of emotional burden on both sides, or at least on the side that contains human beings, for one has to bear in mind that many negotiations are between a human on one side and a legal fiction on the other; at to the latter one can hardly speak of a release of emotional burden. Still, in many instances a mediated result can provide a healing experience in addition to a settlement agreement, and to this extent can be regarded as a more civilized and sophisticated method of resolving disputes than the legal system, which merely declares a winner and a loser by way of a highly formalized process so technical that it often bears scant resemblance to reality.