Why Mediation Works When Negotiations Fail
Recently, I served as a mediator in a dispute between two former partners in a business venture gone bad. The parties had attempted to resolve their dispute on numerous occasions but to no avail. By the time of the mediation, the parties had spent substantial amounts of money on attorneys, emotions were running high, and the parties distrusted one another so much and perceived themselves to be so far apart that the chances of any settlement seemed unlikely. Nevertheless, after one day of mediation, the dispute was settled. So why is it that mediation works when direct negotiations have failed?
Having mediated over 1,500 disputes, I have observed six basic reasons why mediation works when prior negotiations fail.
1. Effective negotiations have never really occurred in the first place. Effective negotiations require that the people issues be separated from the problem. I have often observed that the parties perceive the other side as being unreasonable and are suspicious of their desire to reach a settlement. As a result, the real problem is all but ignored and what is characterized as negotiation is really a series of personal attacks questioning the credibility, good faith and reasonableness of the other party. These negotiation sessions are often characterized by hard bargaining, unrealistic proposals and other tactics which only emphasize the differences between the parties. As a result, the parties become more defensive and entrenched in their positions, and refuse to make concessions. No common ground can be found in that environment. During mediation, the mediator controls the communication process so that unproductive discussions are avoided. When communications are skillfully directed by the mediator, the focus of the negotiations will gradually shift from the emotional issues to a constructive resolution of the real problem at hand.
2. Mediation works when the ultimate decision makers sit at the bargaining table with the sole purpose of resolving their dispute. Many prior negotiations take place between parties who do not have the authority to make the settlement decision. For example, this is often the case when negotiations are with middle-management people who believe that their job is dependent upon looking strong in the eyes of their superiors. In a perfect mediation scenario, the CEO or another person with ultimate decision making authority is present. When this happens, settlement become almost a certainty.
3. During a mediation, the parties have the opportunity to hear directly from the opposition and in turn, are given the opportunity to directly educate and influence them. These direct communications allow for both sides to fully understand the other parties’ position and to eliminate misconceptions. Often, I hear parties comment that they have heard something for the first time and now understand where the other party is coming from. As a result, a mediation session provides each side with a more realistic view of the opposing position, allowing for the consideration of settlement proposals that otherwise would have been rejected as being “off the wall.”
4. Mediation allows each side to "test market" a settlement proposal by privately conveying the proposal to the mediator. During the course of mediation, the mediator will often meet privately with the parties to confidentially discuss settlement proposals . Even if not authorized to convey a proposal to the other party, the mediator is able to determine whether the parties are in the same “ballpark” and whether or not a proposal is likely to be accepted by the other party. This allows each side to fully explore settlement options without negotiating against themselves, otherwise know as the “he who speaks first loses” method of negotiation. Everyone fears that any reasonable settlement proposal will be rejected by the other party and will then become the starting point for the next round of negotiations. This problem is eliminated in the mediation process.
5. Mediation offers each party a realistic look at their case and the result they are likely to achieve in court. As the parties become clear on what they can "realistically" expect to achieve absent a settlement, their positions on settlement often become more reasonable and flexible.
6. Mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. In court, the only option available is normally an award of money damages. When engaged in a negotiation battle, the parties are likely to overlook creative settlement options that involve other types of consideration. It is the mediator’s job to help identify and expand the menu of options so that less obvious solutions and alternatives can be explored. By pointing out the advantages of these suggestions and comparing them to the result that might be obtained in court, the mediator can often open the parties’ eyes to the benefits of a solution which they have not seen before.
Notwithstanding the failure of prior negotiation efforts by the parties, the mediator’s task is to reduce mistrust and emotional barriers and assist the parties to focus on the real issues involved in the dispute. The mediator can then assist the parties to explore realistic options for settlement and can recommend a negotiation strategy designed to achieve a settlement that meets their needs. In the hands of an experienced mediator, settlements can be achieved over 80% of the time, even if prior protracted negotiations have been a total failure.
Biography
Michael J. Roberts is a full-time professional mediator involved in resolving disputes throughout the United States. He has 36 years of major law firm experience as a senior litigation partner. Since 1985, Mike has served as a mediator and special master in more than 4,000 cases with aggregate settlements in excess of $800 million. Mike's mediation practice consists primarily of major financial controversies and complex multi-party matters with emphasis on business, real estate, construction, employment and insurance. Mike's clients include real estate developers, contractors, publicly held companies, institutional lenders, health care providers, educational institutions, governmental agencies, insurance companies and the like. He is a frequent speaker at professional and industry seminars throughout the United States on various topics involving alternative dispute resolution.
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Website: www.mediations.com
Additional articles by Michael Roberts
Comments
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| Charles ,
San Antonio Tx |
09/12/05 |
| Free Divorce Mediation in San Antonio, Texas? |
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I am glad to see that there are many mediators still contributing to this website. I have relocated back to my home state of Texas and am currently practicing Divorce/Family Mediation in San Antonio. I am currently in the process of expanding my practice to the Latin community. I will be offering divorce mediation in spanish.
Estoy muy contento de que ya hayan muchos Mediadores que contribuyen a esta Pagina Web. Estoy actualmente ubicado en mi viejo hogar Texas y actualmente estoy practicando en Mediaciones de Divorcios Familiares en San Antonio, Estoy actualmente en el proceso de ampliacion de esta practica a la Comunidad Latina y estaré ofreciendo Mediaciones de Divorcio en español. Mediaciones de Violencia Domestica gratis. Para ver si Uds califica llamar a 210-204-6711(english) or 210-827-2931(español). |
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| Charles Lenzy,
Dothan Al |
fms01@earthlink.net
01/02/04 |
| Staying within the lines. |
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I must say that i am sorry to hear that a mediator has ignored the best interests of their client. This in turn makes it difficult for those of us who practice within the boundries. The new year hopefully will bring closure to those of you who are seeking an end to a uncomfortable situation or agreement. To assist in this, I am offering all residents of Alabama FREE Mediation Services until the last day of January. Feel free to email me or call jsut to let me know that you saw this post. i also have a website up as well. |
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| Michael Roberts,
San Diego CA |
roberts@mediations.com
08/04/03 |
| Response To |
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Its always sad for me when I hear stories of mediators who overstep their bounds. As mediators, we must remember that it is the clients interest we are serving and not the mediator's desire to settle the case. Most good mediators know the boundaries and stay focused on the fact that it is the clients' decision as to whether to settle. The mediator's job is to bring them the best offer possible. Mediators will often offer their advise and seek to help the client evaluate their options. However, it goes too far when the mediator substitutes their judgement for that of the client. |
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| confused ,
ia |
08/02/03 |
| iwhat if? |
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recently we were involved in a situation as the one you described above- however, after reading alot on mediation- im finding that we were not treated fairly in the process. the mediator, was unproffessional, and coherced us into agreements that we tried to protest.
after it became clear we wernt getting anywhere, we agreed to terms of mediation- just to be done.
now, the other party has not lived up to his end of the agreement- what action can we take to have the mediation agreement voided, and head to arbitration?
as well, as how does one file a complaint against a mediator- who acted more as a dictator then a mediator? |
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| Charles Lenzy,
Dothan Al |
knight912@hotmail.com
08/21/02 |
| Mediation education |
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It is great to see that mediation education is spreading like it is. There are still many persons in my area who do not know what mediation is, what it does, or how it works. I am a mediator who specializes in domestic violence. There has been much resistance in this area of the united states for this type of mediation until recently. Thanks to websites like this one, mediation education is made easy by referring those who do not understand, to view these sites and gain insight. Keep it going! |
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