Volume 7 | Issue 1

Putting it in context

A message from CDC Integrated Services, LLC

Making Things Better

Many practitioners providing conflict resolution services speak about mediation in terms of a process. I also talk about the importance of the process for the overall success of a mediation.  In every mediation I undertake, I walk the parties through the process so they understand clearly how mediation works. This is because mediations succeed much more often when the process is followed.

Much of the literature on the subject focuses on the importance of approaching mediation in an organized way. I’ve read a number of books and texts on the subject, some better written than others, and yet, all of them offered insights of one kind or another.

One thing I noticed about a number of these books is the lack of emphasis on negotiation. Some of the books I have touch on this tangentially, and a couple of others devote a couple of pages or less to the subject of negotiation. I found only one book on mediation that delves into the subject of negotiation in any meaningful way. While I am certain other books cover the subject in more detail, it is clear more than a few writers tend to avoid the subject to some degree.

I am sure that some of you reading my letter will point out that these are two distinct subjects, and that it is not the mediator’s job to worry about how the parties negotiate their differences. From the perspective of the mediation process that much is true. I’ve written in the past that mediators need to keep their “mitts” off the issues when the parties are negotiating.

And. Yet. The outcome of a mediation does hinge almost entirely on how the parties in the dispute conduct their negotiations. The mediation process is critical to providing the framework in which the parties can examine alternative solutions, but the settlement agreement will provide the parties with a strong foundation for moving forward, or it will contain weaknesses that will show up later, the agreement may fall apart, and the parties will be in conflict again.

In my books and articles I’ve reminded my readers that, in a negotiation, the power of the parties is never equal, and the balance of power will impact every negotiation that is at the center of any mediation. A mediator who is not proficient in negotiations or who has not trained himself/herself to understand what a good negotiation looks like, cannot ask the right questions at the right time that would aid in exposing the weaknesses that would otherwise be hidden.

It is unfortunate that many mediators overcompensate for this lack of experience or lack of perception by engaging in tactics that guide the parties, and by default, the negotiations to a point where a settlement agreement is written.

In my mediations I maintain the perspective of indifference to the outcome. This point of view is key to my neutrality.  

My impartiality is not compromised if I perceive one or both parties are missing a key point. That is what a mediator’s open ended questions are intended to do – get the parties to see alternatives more clearly.

In order for the mediator to see what the parties are missing requires that the mediator understand the dynamics of negotiation, and how power influences the way the parties examine alternatives. It is important for mediators to understand the dynamics of a negotiation because of the balance of power issue.

A trait exists in almost every negotiation. As sure as God made little green apples, the party in the stronger position will press his advantage to maximize the benefits for his side in the dispute, and do so when the stronger party thinks the other side is at its most vulnerable. When this happens, the examination of alternative solutions comes to a screeching halt.

The mediator can’t stop the stronger party from the inevitable chest thumping, but with the canny use of questions, the mediator can often delay the 800 pound chest thumping gorilla routine long enough to minimize its impact on the negotiations.

Every third party neutral needs to approach the mediation process strategically, and formulate his/her questions in a way that helps execute that strategy so that the parties achieve a settlement agreement they are satisfied with and can work with going forward. As another writer recently wrote…”the challenge is not to guide people towards an outcome, but expose possible avenues for progress”.

Successful leaders and managers learn how to resolve disputes in the workplace or they would not be in the positions they hold. They are where they are in the organization because they are able to use techniques similar to those used by mediators to work through conflict. For most of them it is an intuitive understanding and it works reasonably well in most cases. But not always.

Those of you reading this should take from this letter the basic notion that the third party neutral (you) does not own the outcome. The parties in dispute must create and own the outcome.

Food for Thought: “There are some people who see a great deal and some who see very little in the same things.” (T.H. Huxley)

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Houston, Texas 77042
346.561.0612
jerry@cdci-mediation.com