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<xTITLE>Substance of Negotiation in Mediation</xTITLE>

Substance of Negotiation in Mediation

by Sarathi Susheela
July 2020 Sarathi Susheela

The best definition of negotiation which I have come across is “ Negotiation is getting what you want at an acceptable price”. In mediation, “ getting what one wants also includes avoiding to get what one does not want to get”.

What is an acceptable price is purely individualistic. A want is always something in addition to need. Needs cannot be subject matter of negotiation,. Needs are required to be satisfied and cannot be and should not be encouraged to be negotiated. There are some needs that can be satisfied by only specific person/s. Desires also cannot be negotiated. Parties will always have leverage in negotiation as long as they negotiating with wants. What exactly they want forms the substance of negotiation.

CASE STUDY 1

There was a dispute amongst five brothers about the management of family business that was three generations’ old. Four brothers were on one side and the youngest brother was on the other side. The management was being looked after by the youngest brother , who had lost everything due to his negligence and vices. The business had to be closed due to huge loss. The other four brothers were rich and had established their individual business. Four brothers did not want the family name to be lost. They wanted to continue the family business .They requested the youngest brother to walk out from partnership and agreed to compensate him. They said they would manage the business . Matter was referred to mediation. Four brothers agreed to all the demands of the youngest in spite of the demand being exorbitant according to them. When the settlement had to be signed the youngest brother demanded more compensation. This happened four times. Every time the brothers agreed, the youngest increased the compensation further and threatened to walk out.
The four brothers could not do anything. It had come to the stage of “thus far and no further”, from their end. Matter had to be referred back as not settled.

Indicating the youngest brother that the mediation has to be terminated as parties have not reached settlement , mediator asked the youngest brother in private caucus,” I have been observing that something is bothering you from within and holding you back from agreement. If you don’t mind can you share the reason with me?” He thought for a while and answered. Mediator asked him , “Will you be willing to share it with your brothers? He agreed. A joint session was arranged. Mediator asked the youngest “ If there is anything holding you back from agreeing to terms of settlement can you please share it with me in the presence of your brothers, if you do not mind?

Youngest brother said : “Madam , I regret the damage I have caused to my family reputation. I am not interested in compensation. If today I walk out of this partnership , leaving it to my four brothers , it will be as though only these four are born to my parents. Only they are from this prestigious family, and I am no body.” The youngest brother who was always rough and dominating started sobbing.

There was silence which was speaking loudly. The four brothers heard it. They knew what the youngest brother needed. They listened to and understood what their brother did not speak in words.

A new settlement agreement was entered into. All the five brothers agreed to continue with partnership business. The youngest brother opted to remain out of management. He chose to be a sleeping partner . He agreed to receive very nominal amount to his credit.

Analysis:-
Subject matter of negotiation was “Partnership business”- “Compensation”
Substance of negotiation was “ IDENTITY”

Techniques used by the Mediator:
1)Empathy
2)Setting an atmosphere
3) Silence
4)Effective questioning.
5) Assisting the parties in negotiation to identify the acceptable price.

CASE STUDY 2

Husband wanted divorce on the ground of cruelty. His allegation was that wife had not been interested in a physical relationship ever since the marriage and the marriage is not consummated. Wife denied the allegations and contended that they had wonderful physical relationship for the first three years of their marriage. False allegations are made against her as the husband is in relationship since fourth year of their marriage with another woman whom he wants to marry. She is annoyed that her husband is denying three long years of sacred physical relationship between them. Wife wanted restitution. Couple were living separate since 4 years.

During Mediation, husband gave several instances explaining how the wife did not allow him to touch her.

Wife explained several instances of intimate relationship between the spouses . Husband claimed “Divorce” as subject of negotiation, and wife claimed “Re union “ as subject of negotiation. There was no meeting point. Both did not move from their positions. The matter was supposed to be returned as “not settled.”

Before proceeding to terminate the mediation, Mediator had a private caucus with the wife.
Mediator: Can you please help me understand if there is something troubling you in taking decision?

Wife: “Yes, being honest with you, I am troubled by the fact that if I agree he gets what he wants.”
Mediator (after 3 minutes of silence) : “What do YOU want?”
Wife--- ….Did not give any answer.

For nearly ten minutes mediator and the wife did not speak. There was complete silence.
Mediator: May I ask a question. You are free not to answer it. According to you… he has denied the wonderful sacred relationship between you which is of three long years. Please help me understand what motivates you to wait for him to get back to you? What makes you to think of continuing your life with him as a spouse for the rest of your life? I request you not to answer me now. Please get back to me next week.

NEXT WEEK

Wife to mediator.
I am agreeable to get divorce by mutual consent.
I have understood what I need. I need freedom. I want to move away from this toxic relationship. I am not bothered what he gets in the bargain. I am now focused on “what I want."

ANALYSIS:-
Wife’s Subject of negotiation was “reunion”. The “substance” of negotiation was “freedom”, “Relief from toxic relationship”.
Agenda set by the Mediator:-
Shifting the focus towards what one wants to get from negotiation from what the other gets from negotiation.
Facilitating the party to understand the actual “substance of negotiation”.

Techniques adapted:-
Effective Questioning
Silence
Break… providing sufficient time to think.

Biography


S.Susheela is a designated Senior Counsel practicing in the High Court of Karnataka at Bangalore. She has done her Masters in Sociology, a Post Graduate Diploma in Industrial Relations and Personal Management and Post Graduate Diploma in Alternate Dispute Resolution from ICADR. She has been practicing for the last 33 years. Susheela is a trained Mediator, and a Master Trainer from Bangalore Mediation Centre. She has trained many lawyers, judges and professionals in mediation. She has authored two books on Mediation in English- Mediation a Reader’s Handbook and Change through Mediation and another in Kannada. She is a renowned columnist in leading Kannada dailies. Susheela’s weekly blog https://totim.law.blog gives tips to trainers giving training in mediation.



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