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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
AGENDA DEVELOPMENT (continued)
Logic
In some instances, issues will come up which are logically related to each other. In using this matter of organization, be careful not to focus unduly on past events instead of future possibilities.
While there are many ways to structure the agenda of discussion, the mediator must be prepared to take responsibility for setting an agenda based on what the parties have said. Generally, the parties will not be prepared to or capable of structuring the discussion. After all, if they were able to do so, they probably would not have needed a mediation in the first place. One of the greatest assets you bring to the mediation is your ability to create structure and develop a process to assist the parties' communication.
If the mediator neglects to create an agenda, the possibility increases that the discussion will degenerate into impasse, not because the parties necessarily disagree on all matters but rather because no one assisted them in focusing on and separating those items on which they agree from those about which they remain in substantial disagreement.
Generating Movement
After the mediator has developed the agenda for discussion and selected the first issue to discuss, the parties may still be stuck. At this point, the mediator's job is to assist the parties in thinking about their dispute in other ways to help them move forward. It is important to keep in mind that the parties are entitled to maintain a belief that they do not want to resolve their dispute in mediation and would rather pursue the traditional legal process. Your job as mediator is not to make sure that every case is resolved in mediation. Keep in mind that some parties may legitimately want a court resolution. It is your job to help the parties consider their options and make an informed decision as to how to resolve their dispute. In this section, we will discuss the ways in which a mediator may be helpful to the parties in reconsidering their "positions."
The basic definition of mediation is that it is negotiation in the presence of a neutral third person who is not involved in the dispute and who can assist the parties in discussing their concerns. Since mediation is based on negotiation, it is best to start with a brief discussion of the basic principles of negotiation.
Separate the People from the Problem
We all know people who we just don't like, that no matter what they say we will find something to disagree with them about. When we are in dispute with these people, we tend to lose sight of what is really important and instead focus on reasons the other person is wrong. When we are negotiating to keep the focus on the problem - not the people. When we are mediating, our job will be to help the parties separate the "people from the problem."
Focus on Interests not Positions
Generally, when stating a need, we tend to focus on our position, what we want. Often, the position we take will be at odds with someone else's position. Move beyond positions and move towards stating what our interests are and why we want it. An example used to illustrate this point is a negotiation over an orange. Two people want the orange (that's their positions). If one stays at the level of positions, there is no way to resolve the dispute without one (or both) of the parties "giving in." If one gets to the interests, however, more options open up. For example, if one party wanted to bake with the orange peel and the other party wanted to eat the orange, both parties could, by separating the peel, achieve 100% of their interests. If they bad focused strictly on their positions, they probably would have agreed to cut the orange in half, thereby obtaining only 50% of their interests. It will not always work out so smoothly and there may be times that the parties' interests are not able to mesh together, but more often than you think, helping parties to identify and discuss their interests will reveal useful information and assist the parties in working towards a resolution.
Generate a Variety of Possibilities Before Deciding What to Do
When we are in dispute or negotiation with another person, we will often identify quickly the way we think it can be resolved and then get stuck there. Encourage the parties to continue to brainstorm a range of ways the dispute may be resolved before choosing what to do. Even the simplest dispute can be resolved in a variety of ways. As a mediator, you should help the parties to think creatively of options, particularly if each one has identified a single option and the options are not the same!
Utilize Objective Criteria
Press the parties for a result based on objective criteria. Basically, this principle calls upon the parties to a negotiation to ground their offers and counter-offers in objective criteria, such as a book value for a used car. The premise is that it is more effective for parties to discuss a situation when it based on objective criteria rather than their own subjective notions. Again, this is a way to make things less personal, and thus, easier to discuss.
Know Your Best (and Worst) Alternative to a Negotiated Agreement (BATNA) and (WATNA)
All too often we will conclude a negotiation or a mediation and leave more money or better result at the negotiating (mediation) table than we could ever achieve in another forum. We do this because we have not taken the time to think through what is the best we can hope to do outside of the negotiation/mediation and what is the worst that may happen. Your job as mediator is to help the parties to contemplate the alternatives so that they can make an informed decision about what they want to do Beyond these negotiation tips, there are some other ways a mediator may be helpful to the parties in generating movement. The following are some options for you to consider to keep the mediation discussions moving:
At the same time the best and worst should be balanced with the most likely alternative to a negotiated agreement (MLATNA).
Alternate discussion of issues
This is useful so that one party does not perceive him/herself as "winning" everything. A sure way for someone to become recalcitrant and dig in his/her heels is if they believe that the other person is the only one who needs to make concessions.
Focus on the Future
It is helpful to remind parties that they cannot change what happened in the past, but they can decide how they want things to be in the future. Court resolutions focus on the past and determining what happened, a nice aspect of mediation is that what happened in the past is only relevant in helping parties determine how they want to behave in the future.
Be positive
Make the parties feel good about the progress they have made. People like to feel good about themselves. When parties come to a mediation, they are often frustrated with the other party, nervous about being in mediation, and stressed about having a dispute which has not been resolved. As mediator, you may be the only one who remembers that conflict can be positive - that it can offer an opportunity for the parties to learn from each other. By maintaining a positive atmosphere in the mediation and rewarding the parties for their successes, even small ones, the mediator can help the parties view their dispute as a learning endeavor.
Use of Silence
Most people are not comfortable with silence. Silence can be very powerful in helping parties reflect on the effect of a particular proposal or statement. As mediator, do not be afraid to "let silence ring" during your mediation. In particular, use silence when one party has made an offer or counteroffer. The mediator should not be the person who breaks the silence - give the other party time to respond.
Use of Humor
People become more flexible when they are laughter often reveals some comfort with oneself and the situation. But remember, humor should never be used at the expense of one of the parties.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),