An extract from the Program on Negotiation at Harvard Law School
The goal of mediation is for a neutral third party to help disputants come to consensus on their own. Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the underlying interests beneath their positions. Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances. Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
CHOOSE THE RIGHT MEDIATOR
When a negotiation escalates into a dispute, most managers understand the value of seeking out a mediator for professional assistance with the matter. The question of whom to hire, however, is less clear-cut. What type of expertise should your mediator have, and where should you look for him?
When choosing a mediator, keep in mind that you need not accept the proposals that he makes. In other words, you have total power to prevent mediation from leading to an undesirable outcome. As a result, the only risk of mediation is that you will expend time and money without reaching agreement. Indeed, many businesses firmly believe in the value of mediation that, as long as the other party seems to genuinely want a good-faith resolution, an experienced mediator would be able to reach an amicable settlement between the parties.
The talents of successful mediators comes from focusing on three key areas:
The key skill of a successful mediator is the ability to develop rapport a relationship of understanding, empathy, and trust with each of the disputing parties. A sense of rapport can encourage parties to communicate fully with the mediator, often providing him with the
information he needs to find a mutually acceptable settlement.
Another key talent of successful mediators is creativity, the ability to generate novel solutions. This ability clearly springs from a focus on interests. Only by understanding each party’s interests can a mediator generate creative solutions that satisfy each party.
It is also important that your mediator be patient, giving you and your opponent as much time as you need to fully express emotions and ideas, while at the same time focusing intently on the primary task, dispute resolution. Be tenacious and don’t give up. Sit with parties who claim they simply don’t see a way to a resolution. Sit for a while and think more on it. Most parties are loath to send the mediator packing, so they sit and usually think of something, especially if they occasionally throw out an idea.
LEARN THE STEPS
As compared with other forms of dispute resolution, mediation can have an informal, improvisational feel. Mediation can include some or all of the following six steps:
Planning and preparation
Before mediation begins, the mediator helps the parties decide where they should meet and who should be present. Each side might have lawyers, co-workers, and/or family members on their team, depending on the context.
With the parties gathered together in the same room, the mediator introduces the participants, outlines the mediation process, and lays out ground rules. He also presents his goal for the mediation, for example, to help the parties come to agreement on the issues under dispute and improve their relationship.
Following the mediator’s introduction, each side has the opportunity to present its view of the dispute without interruption. In addition to describing the issues they believe are at stake, they may also take time to vent their feelings.
Joint discussion and exploring
After each side presents its opening remarks, the mediator and the disputants are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns. Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.
If emotions run high during a joint session, the mediator might split the two sides into separate rooms for private meetings, or caucuses. Often, but not always, the mediator tells each side that the information they share in caucus will remain confidential. The promise of confidentiality can encourage disputants to share new information about their interests and concerns.
At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests, familiar ground for any experienced negotiator. The mediator can lead the negotiation with all parties in the same room, or he can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals. When putting together your settlement proposal ask the mediator for his advice. His conversations with the other side have probably given him knowledge of its interests that you can use when packaging your proposal.
About 80% of dispute mediations lead to resolution. Depending on the complexity of the issues, mediation might last mere hours, or it could take days, weeks, or months to resolve. Some resolutions will truly be “win-win”; others will be just barely acceptable to one or both sides, but better than the prospect of a continued fight or court battle. If the parties come to consensus, the mediator will outline the terms and may write up a draft agreement. If you fail to reach agreement, the mediator will sum up where you have left off and may engage you in a discussion of your non-settlement alternatives.
ENHANCE YOUR OUTCOMES
Negotiations have reached an impasse. You contend that your firm, which distributes office equipment throughout Eastern Europe, suffered a $10 million loss when one of your suppliers delivered laptop computers to your Warsaw warehouse that are too fragile to be sold. Denying that the computers are defective, the manufacturer has offered you only $100,000 in settlement, an amount it characterizes as the “nuisance value” of your $10 million claim. Both sides agree on one thing: you need help resolving the dispute. You engage a neutral mediator to do just that.
Now that you know how mediation works, here are some tips aimed at ensuring that you emerge from the process with a great deal.
Solicit the mediator’s opinion
The mediator’s private conversations with each party are likely to lead him toward a settlement framework that will please everyone involved. Some mediators volunteer settlement ideas; others, who are less activist, will not. Consider asking the mediator for suggestions regarding your own settlement proposal. This tactic not only assists you in identifying a proposal that would suit you but also takes advantage of the mediator’s knowledge of the other side’s interests—and helps you avoid making a proposal the other side will find offensive.
Suppose you plan to initially demand $9.5 million from the computer manufacturer and gradually reduce your demand to as little as $2 million. Rather than simply asking the mediator to convey this offer to the other party, you ask what he thinks of it.
“The other side thinks your current $10 million claim is outrageous,” he tells you. “An opening proposal of $9.5 million could make serious negotiations impossible. Here’s a suggestion. If you open at $7.5 million, I can point out the substantial amount by which you’ve moderated your claim. I’ll suggest that if the other side’s next offer is similarly moderate, each side will have demonstrated a good-faith desire to settle, and we should be able to do so.”
Although you’re under no obligation to accept the mediator’s advice, recognise that his private conversations with the other side have given him considerable knowledge about the other side’s interests. Taking advantage of that knowledge may lead to a settlement that’s high enough to satisfy you.
Give the mediator your great ideas
When talks escalate into a dispute, negotiators often develop negative opinions about each other. If only the other side was bargaining in good faith, you might think, we would have resolved this issue
long ago. Such views can lead each side to respond to the other side’s settlement proposals with scepticism, a tendency that psychologists have termed reactive devaluation. Obviously, scepticism does not bode well for agreement.
Your mediator can help you overcome this barrier. Imagine that your conversations with the mediator have led you to a novel settlement plan: you propose a joint donation of the fragile laptops to public school systems (which can bolt them down to make their fragility less of an issue) in the countries where you do business. This move could generate favourable publicity for the manufacturer and for you while also introducing schoolchildren (future computer buyers) to both companies.
Rather than taking the risk that the manufacturer will reactively devalue your idea, suggest to the mediator that he propose it as his own idea. If the mediator believes your plan is fair and has merit, he may help you refine it and present it in a way that minimises the other side’s scepticism.
Take a reality test
Sometimes the unrealistic views of your own team members will turn out to be the major barrier to settlement. If they fail to understand the other side’s interests or priorities, they may advocate standing firm and waiting for concessions. Or perhaps certain members of your team have an exaggerated view of the likelihood that in the absence of a resolution, a court will rule in your favour.
Your ability to persuade your colleagues of the unrealistic nature of their views is limited; after all, if you contradict them too strongly, they may doubt your loyalty. Therefore, when negotiating within your team, use the mediator to bolster your position by asking for his views on the internal debate: “How likely is the other side to concede? How likely are we to prevail in court?” Your team members
are apt to accord special status to the mediator’s neutrality and experience.