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Mediation: Managing A Negotiation (Part I)

Mediation is the process by which participants in opposition acknowledge, consider and attempt to resolve their divergent interests by negotiation. Negotiation is a fluid dynamic subject to the gross environmental influences and personal perceptions of the participants. The act of negotiation is to present persuasive argument in a controlled environment confined to an established set of standards communally accepted as relevant to the subject matter at hand; it is persuasive argument presented by one participant with the intent to influence the decision making process of the other to garner a favorable outcome. The act of negotiation becomes art when a participant understands those elements that motivate and influence the other participant’s decision making process and controls and manipulates those elements to achieve an intended goal.

The mediator, as opposed to negotiator, is not driven to influence the decision making process, but rather control the environment within which the negotiation takes place. It is the mediator’s role to provide a monitored environment that allows each participant the opportunity to present and represent their own interests in a neutral impartial nonthreatening controlled setting. The mediator is the ringmaster that directs the process without participating or directly influencing either the negotiation, the participants decision making process or the outcome. Controlling that gross process without influencing the outcome is the goal and burden of the mediator.

Accepting that the purpose of negotiation is to influence the decision making process of the opposition with the objective of directing the outcome, it is not, nor should it ever be, the role of the mediator to negotiate. Rather, the mediator’s goal should be to provide a structured neutral, non-threatening environment conducive to reasoned debated. The obvious obstacles to the mediator doing so are the participants themselves. Mediation participants, much the same as litigants, come to the process with their own anger, perceptions of wrongdoing, biases, frustrations, needs and wants – and desired outcome. They are subject, as we all are, to the anxiety and emotional turmoil associated with conflict. Creating and maintaining a “neutral non-judgmental structured environment” that encourages participation to settle differences without fear of recrimination requires an understanding of not only the dynamics of conflict, but the emotional experience that fuels it, because while it is material interests that creates conflict, it is emotional attachment to perceived wrongs that sustains it.

“Emotional experience” versus “material interests” is analogous to “wants” versus “needs”. “Want’s” are subjectively defined by each individual’s perceived needs. “Needs”, as opposed to “wants”, are comprised of those elements that aid in or ensure the entity’s (i.e., business’/organization’s/individual’s) survival. Because resolution can only be found by balancing the equities (“wants versus needs”), and because emotional attachment stands as an obstacle to resolution, the mediator must address the emotional experience without losing impartiality or neutrality. To create an atmosphere conducive to resolution the mediator must maintain neutrality and objectivity while balancing the participants objective interests against their subjective (read emotional) perceptions; understanding that it is usually their subjective perceptions that stand as an obstacle to resolution. Because mediation is a voluntary process, actual or perceived loss of neutrality, impartiality or objectivity by the mediator delegitimizes the mediator and fatally flaws the process.

Although many courts (of varied jurisdictions) now mandate participation in mediation, a participant cannot be ordered to settle, nor can settlement by mediation be dictated. Resolution by mediation is, without exception, voluntary. As mediation is purely voluntary, resolution can only be achieved if the participants willingly continue to participate and do so in good faith; again, understanding that typically it is not the objective interests, but rather the intractability of position realized by subjective perceptions that stands as an obstacle to resolution. It is important to understand that it is not the mediator’s job to address or explore the emotional elements that brought the participants to the table. It is, however, critically important to allow the participants an avenue of expression to vent their frustrations so as to prevent those emotions from poisoning the negotiating pool and becoming an insurmountable obstacle to resolution.

In most conflict, at least one, if not both parties are frustrated by what they believe to be a breakdown in communications. The lack of effective communication poses an obstacle to resolution. The breakdown of communications weakens the process itself. Although necessary, providing the participants opportunity for emotion based expression risks losing control of the structured environment and inviting chaos into the process. Therefore, if necessary, such expression should be permitted, but must be carefully managed, confined to a clinically controlled environment and time limited. The sole intent of allowing such expression is not to ease the pain of the participant, but rather to provide them the opportunity to believe that they have been heard. Although “venting” is “subjective dialogue” that is typically, although not always, accusatory, opinionated and, of course, one sided; it may be expository…so pay attention. Additionally, because emotion based dialogue is usually cathartic the mediator should consider it as a device by which to diminish the negative effect brought to the process by the underlying frustration of ineffective or faulted communication.

Much the same as emotion based dialogue – fixed positions, posturing, hostile aggression, belligerence and dishonesty are anathema to the process and must be managed throughout the mediation. Failure to do so may fatally poison the negotiating pool. Participants are sensitive to falsehoods, misrepresentations and self-serving opinion, in all forms, and once identified will lead the listener into a defensive posture. It is the mediator’s duty to keep both the participants and the process – honest – understanding that we are neither omniscient nor privy to the all the truth, and that resolution founded in anything less than the truth is fundamentally flawed. Establishing the value of being truthful is often difficult because of self-imposed perceived safeguards. Some participants are reluctant to expose the truth for fear of revealing perceived weaknesses that may be used against them. For others the truth is self-revealing posing the risk of exposing the inner-self. It is, however, in the “truth” that the purity of the process, the integrity of the mediator and the value of the resolution will be found.

The great benefit of exploring, seeking and delivering the truth, regardless of the individual participant’s positional wants and needs, is to establish the integrity and unassailable neutrality of the mediator. Honesty, integrity and neutrality are the stock-in-trade of the mediator and must be preserved at all cost. Perhaps the most difficult and rewarding job of the mediator is to establish and maintain those values in the eyes of the participants. Honesty, integrity and neutrality are mere words until such time that the participants themselves bestow them upon the mediator. Those qualities cannot be bought or demanded, they must be earned, and will only be earned when they are ingrained in the fabric of the mediator’s philosophical base.

Simply put, mediating is about controlling the process, the participants and the environment without influencing the outcome. It is about recognizing those environmental influences that poison the negotiating pool, and preventing them from doing so. It is about keeping the process and the participants honest so that the outcome is sustainable, enforceable and fair. It is always neutral. It is never judgmental. It is not about dictating or directing an outcome that suits the mediator’s needs. It is never about the mediator presuming that he or she knows what is best for the participants. It is no more and no less than providing an atmosphere where the participants can negotiate a settlement in a neutral, non-hostile, non-threatening environment conducive to settlement.


Gene D. Barr

I came to being an attorney late in life. I was a commercial contractor for 35 years and at age 38 had no formal education. After suffering several knee and shoulder surgeries I was told to find another occupation or suffer the consequences later in life; taking that warning seriously,… MORE >

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