WHY CAN MEDIATION WORK EVEN WHEN NEGOTIATIONS FAIL

In  this February '14 edition of  NEGOTIATION STRATEGIES is a one-minute read in which we explain why mediation is worth considering even after negotiations fail. For your reading convenience, we also distill these lessons into a brief lessons learned at the end of the column.

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Very often, in both civil disputes and international conflict, we find that after all efforts in negotiation have been exhausted and have failed dismally, the dispute goes to mediation where it is magically resolved. Since mediation is defined as "assisted and facilitated negotiation", one must ask what is it about the process of mediation, and the skills of the mediator that can help to resolve a dispute that appeared intractable during negotiations?  What additional ingredients are added to the mix that were missing before mediation and appeared to make all the difference?  Why and how do the dynamics change once a third neutral party is introduced?

Although there is a range of forces at work and a variety of techniques and disciplines at play when a skilled mediator enters the fray, I will highlight but a few in this column. My intent is to educate the discerning public and to instill confidence on the part of the consumer, in mediation, as a very viable, effective and efficient alternative in the dispute resolution process continuum.

Many negotiators do not have a negotiation process that they follow and their approach is an ad hoc one. A "process vacuum" develops and under those circumstances, negotiators typically react to one another rather than guiding and leading the negotiations with a productive, constructive and efficient process. This "reactionary" negotiation usually becomes adversarial, emotional and unproductive.

A well-trained mediator can direct the negotiations with a tight process framework that funnels and focuses the discussions, questions and information at all times. This results in an efficient  and purposeful proceeding,  productive dialogue and constructive communication. As such, one of the critical roles of the mediator is process expert and manager which allows for otherwise stalled negotiations to advance successfully.

In many disputes, emotions are at the core of the dispute, and if not at the core, at the very least, obstruct resolution when left unchecked. Typically, litigation proceedings that attempt to resolve disputes based on legal principles alone, often exacerbates the emotional element of the dispute and only  delays serious settlement discussions. 

When parties who have not been trained in effective negotiation technique, attempt negotiation, it usually spirals into a cycle of adversarial posturing and defensive tactics which also exacerbates the emotional element.  When emotions are not being addressed, resolution will be elusive.

A skilled mediator works her magic - she understands the toxicity of emotions and how they obstruct resolution. She is capable of managing and addressing those emotions in a way that diffuses them without becoming explosive and destructive. She is  able to recognize when the emotions have adequately been dealt with so that she can then redirect the parties towards collaborative problem solving. 

Often parties in a dispute become locked into their particular perceptions and positions and have difficulty seeing it in any other way. These positions are usually polarizing and fuel the conflict rather than douse it. In negotiations, this sort of dynamic can lead to impasse quite rapidly - a situation which untrained negotiators will have difficulty extracting themselves from.

Good mediators have the ability to re-frame old problems in new, innovative and refreshing ways and unanticipated perspectives. For example, in a custody dispute with warring spouses each claiming the other to be an unfit parent, a skilled mediator may re-frame the issue by articulating two very different parenting philosophies, each  quite legitimate in its own right, even if not championed by the other. Or in a dispute between two business partners, a competent mediator may identify two very different but legitimate management styles at the core of the dispute. Often, the new perspective will be the key with which to unlock the negotiation and advance a mutually acceptable resolution.

Even when negotiations are not producing results or seem to have reached an intractable impasse, consider mediation as a very viable alternative to resolve the dispute without the extremely costly, excessive  and unattractive option of fighting in court!

• When negotiations fail, consider mediation as a high potential alternative

• In selecting a mediator, ask him or her about the process they advocate and how they intend to manage it 

• Question them about how relevant they think the emotional component is and how  they  might deal with it 

• Request examples of how they unlocked seemingly intractable disputes in previous mediations

• Look for signs of an innovative and creative approach