Why mediation works when negotiations don’t

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Among other skills, the mediator removes from the negotiation the barriers to agreement which plague any negotiation between determined advocates and their clients. John Dawson Foley & Lardner

The short answer to the title’s question is: “It may not.”

But the high probability that a skilled mediator can facilitate agreement between parties who think agreement unlikely is exactly why this method of dispute resolution continues to attract professional attention and the appreciation of users who have saved substantial time and expense in doing so — and who have reached an agreement which is more satisfying and useful than either reasonably could expect were they forced to resort to the blunt bludgeon of litigation.

To understand why and how a mediator can foster an atmosphere of cooperative agreement between parties determined to disagree is to understand why, in most cases, the parties have been unable to negotiate a resolution on their own. After all, it surely is the case that most disputants, no matter the cause and no matter the adversary, would prefer to conclude the matter by tailor-made agreement than by court order.

So, what does the mediator add to the mix? The answer to this question is fairly simple and far from profound: Among other skills, the mediator removes from the negotiation the barriers to agreement which plague any negotiation between determined advocates and their clients. So unburdened, the parties frequently find themselves able to reach an accord which might have seemed impossible just hours earlier.

The barriers to a successful negotiation are many and common. These barriers pervade virtually any conversation between two people trying to advance their own or their client’s interest. They share the pernicious truth that, even though recognized, they eliminate common ground or, at the least, make it less attainable. This article examines what the author believes to be the principal barriers to agreement and summarizes how the mediator can facilitate resolution in spite of them.

“I Do Not Want To Be First”

Many people, and that includes lawyers, think it a sign of weakness to be the first to venture the possibility of settlement. That reluctance to open the door to constructive negotiation often is the only barrier to an entirely satisfactory settlement. We all have heard about, or been part of, exhaustive (of both mind and body) pre-trial litigation preparations without any thought being given realistically to the possibility of settlement; a process which actually makes settlement less likely the more work that is done (until the inevitable court house steps loom large) because of fear that a “belated” proposal reflects a conceded weakness confirmed by trial preparation.

This lack of communication is addressed immediately and eliminated by the process of mediation itself. By confirming in front of both parties that each is there because of his/her recognition of and desire for the possibility of settlement, the mediator can accept responsibility for the ongoing discussions and relieve the parties of the burden of having been the first to blink, while simultaneously affirming, each to the other, that both desire and consider settlement a welcome resolution. That hurdle cleared, the possibility of mutual understanding and dialogue is significantly enhanced.

Emotions, Ego, and Style
Often Get in the Way

This observation is almost an intuitive truism. All disputes generate protectionist reaction, and disdain for the other side’s ridiculous, baseless arguments. This fact of life is particularly true if the antagonists are themselves responsible for whatever conduct lead to the dispute.

Here, the process of mediation under the hand of the mediator soothes competing egos and serves to dampen emotional reactions. Most mediators, not all but most, agree that allowing the parties to vent emotionally their feelings to the other is essential to the process, but that having done so once, the tone of conversation thereafter should be more constrained and decorous. Once shorn of the baggage of emotion, the parties can be assisted to understand their real interests and to assess more objectively and realistically their actual, achievable objectives in the negotiation.

In unassisted, direct negotiation, the lawyers as well as the parties often conduct themselves in ways which prevent agreement, or at least make it unlikely. I speak here not only of intemperate behavior
or inordinate demands, but of unrealistic appraisals of the other side and the inability to get beyond the tunnel visioned “But I am right” mentality. The mediator, by his/her very presence, tends to dampen the waves of enthusiasm and excitement which can frustrate even the most determined negotiator, and will also provide the invaluable service of being the “third party” to whom the parties can safely vent, if they choose, without consequence.

Destructive Focus upon History
Rather than upon the Future

Almost all negotiations begin with each side emphasizing how badly the other side has behaved; how egregiously the speaker has been wronged, and his/her “rights” trampled by the other side; and how determined the speaker is to see “justice” done. The only successful negotiations are those in which the parties are able to move beyond the past, and their respective insistence upon the perceived vindication of “rights,” and focus upon their interests going forward. It is here that the facilitative mediator offers the greatest service.

Typical negotiations involve attempts to “divide the pie”; to pull and tug to make sure the pieces are “evenly” or “fairly” sliced. Many negotiations fail either because the “pie” is wrongly described or because it simply cannot be divided in a way which satisfies both sides.

A skilled mediator will assist the parties in looking at the problem, and alternative solutions, in a collaborative, value added way which enables both sides to realize success and to satisfy at least an acceptable portion of their real interests. Any combination of factors which allow each party to achieve something better than the probable best result in litigation, including the avoidance of the time and expense, and the risk of loss, associated with litigation, is a good result — for all parties.

Such “win-win” solutions actually do occur, although usually not without the intervention and assistance of an objective third party, like a mediator. Instead of damages for breach of contract, for example, the “claimant” may be better off with a revised contract more favorable in some respects, and perhaps less in others. The “respondent” in such a hypothetical case may be better off avoiding the risk of damages by agreeing to a revised contract which is less favorable in some respects than the existing agreement, but more so in other respects. Perhaps an entirely new agreement or business opportunity can be explored or promised, either with each other or with a third party introduced to the mix. The only limit to the range of alternatives preferable to the “one wins, one loses” consequence of litigation is the imagination of the parties, aided by the mediator.

The Impediment of “Selective Perception”

Potential litigants, or parties involved in negotiation, tend to make principled agreement difficult to achieve by overestimating the merits of their own position and devaluing the position of the opposition. Objective assessment of both sides to a dispute is among the most challenging of exercises for any advocate — so much so that many, if honest, will concede they do not really try. As studies conducted by the Harvard Program on Negotiation and other institutions show, self-interest and what psychologists call “selective perception” make it extremely difficult for interested persons, and their lawyers, to objectively evaluate the merits of competing positions. Just as litigators learn that jurors tend to make up their minds early and thereafter view all evidence through the prism of a pre-determined point of view, parties themselves, and counsel, tend to accept and rely upon facts/law which support their position and to discount, or even ignore, facts/law which do not.

Here, the mediator’s objective reaction to and assessment of the parties’ arguments, and the consequent steering of discussion and recognition of issues which enables each party to better understand the strengths and weaknesses of their own and their opponent’s position, greatly enhances the possibility of reasoned agreement. Even the fully facilitative mediator, if qualified, can ask questions and suggest options which will challenge a party to more carefully and realistically assess its position. It tends to be true that cases settle, if at all, only after the parties reach appraisals of the competing positions which are more realistic than the ones they started with.

The Impediment of “Reactive Devaluation”

Any negotiation, even one between mutually respectful and well motivated parties, is burdened with some level of cautious hesitancy. If it is conceded that each party is motivated by self-interest, it follows that every idea, agreement, or proposal either party makes is considered by that party to be in its best interest, and therefore not necessarily, or even particularly, in the interest of the other party. Even justifiable skepticism therefore threatens every negotiation. If the stakes or the hostility or the previous conduct of the parties causes such normal skepticism to blossom into full blown antagonism and actual mistrust, agreement is rendered all but impossible.

The reader will recognize as true the phenomenon of a party rejecting a proposal by an adversary just because the proposal was made
by the adversary. This well recognized tendency in human psychology is called “reactive devaluation.” We tend to discount as unworkable, unworthy, wrong or even sinister any suggestion from the opponent, just because the opponent is the source of the idea. “If they want it, I do not,” sounds juvenile, if not infantile, but in fact this reaction to an adversary’s proposal is common, predictable, and often the single greatest barrier to negotiated agreement.

Recognizing this, the mediator tries to inject ideas, proposals or suggestions into the structured negotiation of a mediation without disclosing the source of the concept, or treating as his own an idea which actually originates from one of the parties. Freed of the “rejection by association” induced by reactive devaluation, the receiver of the proposal is able to consider the proposal objectively, on its merits, and without the emotional impediment of distrust which otherwise would prevent considered evaluation.

When a Bird in the Hand is
Worth Less than Two in the Bush

Another barrier to a negotiated agreement which can be neutralized, or even avoided, in the process of mediation is related to the “reactive devaluation” phenomenon discussed above. It is an observed facet of human conduct that we tend to devalue goals or objectives the instant they become actually available. In common parlance:

“The grass is always greener on the other side of the fence.” That is, until one climbs over the fence. This phenomenon is exacerbated if “the other side of the fence” is offered by the other side. In that situation, not only do we tend to distrust the substance of the offer, as well as the motive of the offeror, we realize instantly that if it is actually attainable we want more and we can surely get more.

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The mediation process, and a skilled mediator, can help the parties side-step this mine field by withholding final offers until all of the elements of a solution are already on the table and accepted in principle, by couching proposals and actual offers as merely suggestions or possibilities, and by disguising the source of the suggestion in the first place. Agreement is significantly more likely if the parties think they each are agreeing with the mediator, than if they realize they actually are agreeing with each other.

Conclusion

Certainly it is true that not all disputes can be, or even should be, subjected to the process of mediation. But when the possibility of voluntary agreement is acknowledged, there is no question but that in most instances of determined adversaries a mediator can greatly facilitate a negotiated settlement and that in many cases mediation offers the only realistic chance for agreement.

John Dawson is a partner with Foley & Lardner in Milwaukee, and is a member of the Wisconsin State Bar’s Mediation/Arbitration Program Steering Committee. Dawson has served over the past year on the committee of State Bar members assessing for legislative introduction the Revised Uniform Arbitration Act. John also has experience in commercial litigation and regulatory issues, including technology licensing; telecommunications; antitrust; and intellectual property.