By:Harold Coleman, Jr., Esq., SVP, Mediator/Executive Director, AAA Mediation.org
Neil Carmichael, M.A, Vice President, Education, Educational Services, AAA
Reaching a mutually acceptable outcome—or at least a sense of gratification—through mediated settlement discussions primarily depends on two key variables.
- Pre-mediation preparation—substantive, emotional, and attitudinal, and
- The willingness of the parties to work together cooperatively, rather than adversarially.
Essayist and philosopher Henry David Thoreau advised that throughout life, people should seek “simplicity, simplicity, simplicity”; throughout mediation, counsel and mediators should strive for “preparation, preparation, preparation.” They must help parties understand that it is not only preparation of their cases that is important but also priming their mindset to cooperate. This involvement will increase parties’ respect for the process even if the result is not all they wanted.
William James, another groundbreaking thinker and educator, posited, “It is our attitude at the beginning of a difficult task which, more than anything else, will affect its successful outcome.” Cooperation requires as much attitude adjustment as it does substantive preparation. People seem to be hardwired for competition when embroiled in conflict.
Following are ways in which counsel can help set the stage for a more accommodating and less combative mediation experience through purposeful preparation--substantively, emotionally, and attitudinally, each as important as the other.
Consider Whether the Case is a Dispute, a Conflict, or Both.
The terms dispute and conflict commonly are used interchangeably, but it is very helpful when preparing for mediation to draw a clear distinction between the two. A dispute is an argument or debate over contending views, positions, or interests and is related to rights and responsibilities. A conflict is discord or strife resulting in a severance of friendly relations. With a dispute, the outcome parties likely are seeking is resolution of the issues, whereas the outcome sought for a conflict centers on reconciliation of the relationship. If both exist, participants must prepare for both resolution and reconciliation.
Understand the Client’s Interests and Create Options for Meeting Them.
One of the most important things that counsel can do—and help parties do--to prepare for mediation is to ascertain the needs and interests of their client. This requires separating interests from positions (i.e., proposed solutions). An interest is what one wants to gain from mediation, that which must be satisfied in order to say “yes” to any proposal, counterproposal, or settlement offer. A position is how one expects an interest to be met. Interests can be satisfied in many ways; a single position prescribes only one of those ways.
What are the party’s core needs? concerns? fears? motivations? aspirations? Identifying and expressing these variables will help clarify why you and your client are pursuing mediation in the first instance and are foundational to the objective assessment of alternatives to a mediated settlement.
Consider the options that might satisfy your party’s interests and needs--then prepare to adjust them as the mediation process unfolds. This exercise will help you to be open to and flexible in finding solutions and can increase your chances of arriving at an outcome that also is acceptable to the other party.
Remember: options do not require a commitment or a decision when under initial consideration. Rather, an option is just one possibility that when further explored could lead to a workable agreement or part of one. People can shut down inventive thinking and bring the momentum of the mediation to a grinding halt by shooting down options too quickly.
Consider The Other Party’s Interests as Well.
Mediation is a solution-making process--finding solutions that will work for all parties. Thus, the greater the understanding of the other party’s feelings, perspectives, needs, and interests, the better one is able to create a solution on which everyone can agree. Take time before the mediation to try to understand what a solution would look like for the other party, to anticipate their essentials and non-essentials.
To be more creative in developing options and finding solutions, look for shared goals and interests. Many times parties come to mediation with very similar goals and interests, but have very different positions or ideas about meeting them. When both parties begin to look for mutual ways that benefit the other, the mediation process becomes a powerful opportunity for resolution and reconciliation.
Acknowledge but Manage Emotions.
Conflict produces emotions, so emotions at mediation are inevitable. Impasse at mediation often is caused by mismanaged negative emotions.
Therefore, it is unwise to disregard the effect that emotional issues can have on the effectiveness of the mediation process. Mediation is not just about the law and the facts; it is about people. To maximize the opportunity for mediation success, both mediators and counsel must become aware of their own emotions as well as those of the parties and constituents they serve at the mediation.
Preparing people mentally for mediation is crucial; counsel and mediators must help parties to appreciate the impact their emotions can have on decision making and negotiated problem solving. Parties should be primed before the mediation session to the need for open-mindedness, flexibility, and creativity. They need to be sensitive to how emotions can drive poor mediation strategy (anchoring too high or low, demands for attorney fees or punitive damages, negative outbursts, or ad hominem (against the person and not the position) attacks, just to name a few.
Consequently, people need to get and stay focused on a common goal of achieving an objectively reasonable resolution (and, when desired, genuine reconciliation), not a one-sided, short-sighted “win.”
Gather and Organize All Pertinent Information.
Prior to the mediation conference, counsel for both parties should gather all pertinent information sufficient to make informed decisions about options for resolution and/or reconciliation. Both parties should ask for and receive any information they need in a timely manner. It is common for the mediator to help with these informal information exchanges.
Know What is Essential to Your Party
When trying to resolve a dispute or reconcile a conflict, it is crucial to know what is essential to your party and what is not. This knowledge will keep the discussion focused and on track and prepare counsel and parties to be flexible and creative in reaching a reciprocally satisfactory outcome. It also is helpful to think through the best and worst outcomes should you not reach a mediated agreement.
One Party “Wins” Only When the Other Party “Wins”
No mediated settlement can be reached without the consent of both parties. It is, therefore, imperative that attorneys assist their clients in collaborating to craft a mutually acceptable outcome. Proceeding to mediation with this mindset will be extremely beneficial and greatly enhance the likelihood of resolving the issues, reconciling relationships, or both. Hopefully, a settlement will result; however, with this approach, participants likely with conclude the process with a greater sense of satisfaction.
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