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The Uses of Mediation
Lela P. Love & Joseph B. Stulberg
Editors’ Note: How’s your negotiation going? Would using a mediator perhaps be helpful? This chapter shows why and when mediation can help negotiators reach an agreement. It also explains the different types of mediation goals, and how each of those goals can affect the process. This should be read in conjunction with Honeyman on Working with Mediators.
Imagine a time when you negotiated with someone, either for yourself or as someone’s representative, and it ended in an impasse. You walked away from the discussion even though you sensed that a negotiated outcome was in your best interest or that of your client. Perhaps your negotiating counterpart called you a name or accused you of something that you or your client did not do. Maybe an insulting offer was made. You may have been tired or depressed and working on a “short fuse.” Perhaps it was simply too hard, acrimonious or polarized even to establish a time to meet again with your counterpart. For whichever reason, the negotiation did not succeed. In that same scenario, something different might have happened if you had added a mediator.
Why Add a Mediator to Negotiations?
Negotiations are neither self-generating nor self-sustaining. One party might want to talk, but others refuse to do so. Some talks never start—or collapse—because participants lack effective negotiating skills or advocates engage in strategic but misleading posturing. Other discussions reach impasse due to misunderstandings, hostile comments or perceived rigidity. These familiar dynamics can disserve parties whose interests lie in resolving their dispute. Understandable—all too human—reasons cause negotiation meltdown.
Negotiators can be trapped by other pitfalls. Sometimes participants refuse to initiate direct negotiations (or to request mediation) for fear that their counterpart would interpret that move as a sign of weakness. Some take extreme public positions to protect themselves and their reputations, but in so doing undermine consideration of workable options. Some make inaccurate assumptions about aspects of the situation or their counterpart’s motivation. Some fail to determine their priority interests. And some, because of such psychological phenomena as loss aversion or overconfidence in their own judgment, make sub-optimal decisions.
A skilled mediator, particularly with assistance from an insightful, strategic advocate, can defuse or transform these roadblocks into building blocks for movement by promoting constructive participation, minimizing misunderstandings, crystallizing significant interests, framing issues thoughtfully, urging parties to be realistic, and expanding discussion of possible outcomes. How?
What Does a Mediator Do?
A mediator is a neutral intervenor committed to assisting each negotiating party and their representative to conduct constructive conversations. She helps structure discussions. She stabilizes dialogue. She injects an attitude of hope and “going the distance.” She prods participants to clarify interests, establish priorities and transform rhetoric into proposals. She develops discussion strategies that minimize misunderstandings when tensions run high. She helps parties understand one another when ill-chosen words create bitterness between them. She uses reframing and reality-testing to encourage participants to examine and evaluate their assumptions and conclusions. She performs these basic tasks in order to help all parties involved enhance their collective understanding, spark creative problem solving, and settle the controversy.
A Posture of Optimism
Former Senate Majority Leader George Mitchell, when referring to his intervention as a mediator in Northern Ireland and the Middle East, states, “Conflicts are created and sustained by human beings. They can be ended by human beings.” (Mitchell 2002: 4, 6). In mediating the....
For full contents please purchase The Negotiator’s Desk Reference.
Alfini, J. 1991. Trashing, Bashing and Hashing It Out: Is this the End of “Good Mediation”? Florida State University Law Review 19: 47-75.
Bush, R. A. B. and J. P. Folger. 2005. The Promise of Mediation: The Transformative Approach to Conflict. San Francisco: Jossey-Bass.
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