Overcoming Clichés in Mediation

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One of the most difficult tasks for a mediator is to find ways to help parties overcome impasses.

Mediators face many reoccurring clichés that if not addressed and corrected early, can ultimately derail a mediation. 

A mediator must be an educator throughout the entire mediation process in order to move the mediation forward and keep the parties motivated to reach a settlement.  Skilled mediators identify the roadblocks and find ways to educate the parties on how to overcome them.  For example, in the international bestseller, Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher, William Ury, and Bruce Patton of the Harvard Negotiation Project explain that “principled negotiation” rather than “positional bargaining” results in parties mutually attacking the problem instead of each other.[1]  The “principled negotiation” approach separates the people from the problem; focuses on the merits and interests rather than positions; encourages the invention of options that allow for mutual gain; and insists on using objective criteria as much as possible. Id.  A mediator that is able to educate the parties on this sort of approach early on could prevent many of the cliché impasses parties encounter. 

Extremely common obstacles a mediator must overcome involve getting the parties to decide who makes the first offer; disclosure/exchange of information; and a party’s contention that the other side is not there is good faith.  However, skilled mediators can overcome these cliché obstacles by educating the parties through their impasses.

Who goes first?

All too often, mediators encounter parties that refuse to take the lead in making the opening offer.  This could be because they feel that they would be betting against themselves if they begin too high/low, they are afraid the opponent will be offended by their offer, or they simply believe the societal notion that whoever makes the first offer loses the negotiation.   However, contrary to popular belief, parties that make the first offer tend to obtain a more favorable outcome.

For example, in a study regarding the correlation between the opening offer, and the end result of the negotiation, researchers from Duke University, the University of Michigan, and the University of Houston asked MBA students to negotiate a single-issue price deal.[2]  Who made the first offer, the amount of the offer, and the deal outcome were recorded.   The negotiators that made the first offer stated that they “felt more anxiety . . . and, as a result, were less satisfied with their outcomes.”[3]  However, their results were better from an economic standpoint. 

The reason for this is based on the concept of “anchoring.”  Anchoring is “a cognitive bias where people rely too much on the first piece of information they have.”[4]  People tend to respond to and structure their next move off of something significant that has been brought into a negotiation – like the initial offer.   Research by Adam Galinsky, assistant professor of Northwestern University’s Kellogg School of Management, and Thomas Mussweiler of the Institute of Psychology at the University of Wurzburg, Germany have proven that making the first offer provides a bargaining advantage.[5]  Mr. Thomas stated that “when a seller makes the first offer, the final settlement tends to be higher than when the buyer makes the first offer.”[6]

Additionally, allowing the opposing side to “extract concessions from you” can not only help achieve a more favorable outcome, but it can also increase the opponents’ satisfaction because they feel that they were able to get more out of you.  If a party believes that they have been able to “force” the other side to make more movement, generally they will think they got the better deal.  They may think that the other side had to give up more than they really wanted, when in all reality, because the opponent proposed the initial offer significantly above their target, they were able to make generous concessions. 

“They’re not here in good faith!”

Maintaining trust between the parties may be one of the most important aspects of a successful mediation.  The second people feel that the other side is not there in “good faith,” they generally give up on the rest of the mediation.  They revert back to their individual positions which in return heeds progress.  They believe that no matter what they say, the other side will not agree or is being unreasonable, and for that reason will begin to bottle up.

There are a number of ways a skilled mediator can reel a party back from completely giving up on the mediation.  Some of them include: (1) challenging the parties to consider their opponents point of view; (2) having the parties ask “trust landmines” – questions they already know the answer to in order to test the other side; (3) taking more breaks; and/or (4)  keeping the parties talking.

Often parties are so focused on their individual positions that they forget to take into consideration how their opponent may feel about the situation.  They come in with a zero-sum approach and fail to consider that their opponent is looking to achieve something in the mediation as well.  In Getting to Yes, the authors explain the success of encouraging the parties to “sit on the same side of the table.”[7]  Instead of approaching the problem as adversaries, successful negotiations and mediations result when the parties approach it as equals like judges working on a joint opinion.

“Trust landmines” are another option that a skeptical party can use to test the trustworthiness of their opponent.  The Harvard Law, School Program on Negotiation explained that a party can “ask some questions to which you already know the answers.”  If a party avoids the question or outright lies, then that is a good sign that the opponents is in fact not there in “good faith.”  Alternatively, if the opponent is willing to answer the question thoroughly and truthfully, they are more than likely willing to work out an agreement in the best way possible.

Additionally, something as simple as suggesting more breaks throughout the mediation can help calm the parties down.  The American Bar Association explained that  “a break can provide a welcome respite for everyone involved, during which the parties can re-evaluate their positions. Refreshed after the break, the parties or the mediator may come up with a new approach, some creative way to break through an impasse.”[8]   A break provides the parties an outlet to clear their mind and re-group in situations where the discussions were becoming unproductive and/or contentious.

Lastly, if a party decides that “this case isn’t going to settle,” they will shut down.  The exchange of information and development of options inevitably breaks down.  In addition to some of the above-mentioned avenues available to a mediator, keeping the parties talking can be crucial.  Inviting the parties to come up with as many options as possible, asking “what if” style questions, or even clarifying previously exchanged information will keep the parties engaged in the mediation.  Keeping the parties talking and engaged lowers the chance of them giving up on the mediation.

“I Can’t Tell You Everything”

Just getting a party to show their cards can be a daunting task for a mediator. 

Fearful of giving the opposing party a “smoking gun,” parties often withhold a lot of information.  Many parties, especially attorneys, claim that they are not going to give the opposing party “free discovery” in anticipation of the case going to litigation.  Which is pretty counterproductive considering the point of mediation is to resolve the matter before having to resort to litigation.  What people fail to realize is that the more information there is on the table, the better chances there are of reaching an agreement.   Unfortunately, by holding on tightly to information, the parties begin to lose sight of the clear benefit and advantage that disclosure can have.

Now, there are times where it is understandable that a party is unable to disclose certain information – i.e., their client or boss did not give them authority.   However, a majority of the time the parties are simply afraid of giving up too much information.

A mediator can first facilitate the exchange of information by emphasizing the mediation confidentiality.  By explaining that all mediation communications are confidential and cannot be disclosed outside of the mediation, unless the parties agree otherwise, a mediator can instill confidence in the parties to divulge more information that could help resolve the matter at hand.  Then, a mediator should explain the major benefits of disclosing more information such as identifying each other’s needs and interest in order to make appropriate offers.

For example, if the parties in the mediation do not exchange any sort of information, there is no basis to make offers.  How would the parties identify each other’s needs and interests?  Notwithstanding prior communications leading up to the mediation, the parties would be negotiating blind.  Exchanging information allows for the generation of many more options that they parties would have never considered had they simply jumped in to making offers with no information gathering. 

Conclusion

The cliché’s discussed above are just as few of the countless issues that must be overcome to be an effective mediator.  A mediator must not only be the team manager of the mediation, but also the front office, HR, legal, and the equipment personell all in one.  The bag of tricks a mediator must have at their disposal that allow the parties to focus on the specific dispute at hand, and not on “winning” the mediation are extremely crucial to the success of the mediation. 

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[1] Penguin Books, Ltd. 2011

[2] https://www.pon.harvard.edu/daily/dealmaking-daily/resolving-the-first-offer-dilemma-in-business-negotiations/

[3] Id.

[4] https://www.businessinsider.com/how-to-negotiate-make-first-offer-2014-5

[5] https://hbswk.hbs.edu/archive/when-to-make-the-first-offer-in-negotiations

[6] Id.

[7] Id. note 1.

[8] https://www.americanbar.org/groups/litigation/committees/young-advocates/practice/2017/how-to-get-past-impasse-in-mediation/