The Brink Bar

This article is about a minimodel which I refer to as ‘my bar’. The model is an instrument that can be used both in the mediation and negotiation processes. It can be used at all times, but is particularly helpful when a mediation or negotiation process finds itself in a somewhat advanced stage. When the discussions start to go around in circles or threaten to get stuck, it may be a good idea to recommend the use of my bar. Briefly before spending time in caucus with one party (a private get-together between a mediator and one of the parties) in order to find out what is still bothering that party and keeping it from moving from its position, I introduce my bar to the other party to work with it during my absence. It feels good to know that the party who will otherwise have to sit and wait for the parties to reconvene or to have a meeting with the mediator in caucus itself, will not have to spend their time in an idle manner.

Of course there is no obligation to give attention to the bar. A party who would rather spend time consulting advisors by phone or advisors who are present at the mediation venue, is free to just ignore my suggestion to spend time and energy on working with my bar.

Upon introducing my bar to the party who will have to wait out the caucus with the other party, I write my bar on a flip over or blackboard and spend some time clarifying the following explanation. I then ask that party to work with the bar by reasoning through as profoundly as they can every option mentioned. This can be done in the case of each party while it waits during the caucus of the mediator with the other party. Experience shows that afterwards in a vast number of cases positions start to move again and things have become less fixed than before.

The question to start working with the bar and to soul search one’s values and beliefs profoundly following every option mentioned in the bar often works wonders. It initiates that a party will (re)organize its own thoughts. and to take these away from the dynamics of the discussions with the adversary. Being oriented towards the discourse with the other party causes a limitation on free flow of thought. It can be compared to looking around in one shop and see what is on sale there  as opposed to being able to search the internet at liberty and find out what else is available elsewhere. To place this in the context not of the room left for solutions by the other party during a mediation – given verbal responses or body language of the other – but one’s own values and beliefs, brings the focus back on what really matters in the end. This helps to make realistic choices. The focus shifts for a moment from the discussion with the adversary to one’s own position and realistic considerations.

The result often is that consequently a party can also offer the other party more direction as to what might be a desired solution. The bar can also render good services in another respect. When attorneys are present in a mediation and riding a high horse of their conviction that legally they have a very strong case, it can be illuminating – in caucus and preferably in the presence of their own client –  to ask them to also go over the four options mentioned in the bar. This may be of great help to bring back the reality of that nothing is certain in life, the future can not be foretold and in the end it comes down to what the client wants in terms of priorities and risk taking.  Finally the bar can also be used to invite parties in a joint meeting to together  go over the various options in the bar in order to come to realize the situations they will find themselves in if it would come to the actualization of either of those options.   

What the four options do entail is being discussed with a party. This goes as follows.

IDEAL: It is a Sunday afternoon. You find yourself in your garden. The sun is shining. The birds sing their song and there is a gentle breeze. On the table next to you there is your favorite drink. It is a perfect world and you may design the perfect solution for the problem you have with the other party. You dream up the exact way you would like the situation to be solved, everything completely according to your wishes.

There is but one problem: somewhere else someone is also in a garden with his or her favorite drink on a table while the sun is shining and the birds are singing their song. This person is also coming up with a perfect solution but that solution is almost certainly not the same one. Changes you may be able to achieve your perfect solution therefore are very slim.

DEAL: Then in becomes Monday again, it is raining and you have to go back to the office. You return to the reality of every day life, meaning that positions, desires and needs of others are to be taken into account. Compromises are unavoidable and most of the time one does not get things exactly the way one would want them to be. It comes down to realizing as good a deal as one can, which normally does not consist in the perfect solution and does not meet all of one’s objectives.

BATNA: What if you are unsuccessful to come to a deal? What in that case is the best alternative to a negotiated agreement? What price are you willing to pay to decline reaching an agreement with the other party? What price can you afford? In what predicament will you find yourself or what predicament will you get yourself into in case no settlement will come about? At what cost will are you willing not to reach an agreement?

WATNA: What if things get totally out of hand and the worst comes to the worst? What is the worst alternative to a negotiated agreement? If such a situation would occur, what will then be your situation? It helps to keep this scenario in mind as long as there is still reluctance to come to an amicable settlement, even if it would not be reached in amicableness.

As a result of the tension which will come with participation in a mediation process and the involvement therein of the other party and orientation on the other party, the bar may be of help to bring the paradigm back to one self and get one’s ducks in a row again.

The bar can do exactly what is considered to be one of the objectives of mediation and that is to restore the autonomy of a party and help it to come to decisions based on independent considerations from one’s own values, priorities and means.

                       

Martin Brink

Martin Brink PhD is an attorney at law with Van Benthem & Keulen at Utrecht in the Netherlands, substitute magistrate in the The Hague Court of Appeals, arbitrator and mediator (MfN, IMI, CEDR Global Panel) and Chair of the Dutch Mediation Association.   MORE >