Originally published in the Scotsman on October 20, 2013
Identifying all the possible ways forward and assessing these rationally is the hallmark of good mediation, says John Sturrock
The stalemate in the US Congress, now resolved–hopefully, has attracted much comment from those interested in how disputes can be resolved. The US press had openly called for mediation to be used, leading to discussion about what mediation could achieve and how it actually works.
Although mediation is much talked about and increasingly used in Scotland, as it is in the US, it is not yet fully understood by many.
The key to mediation is to identify the real issues which concern the protagonists. What is really troubling them? What lies behind the smokescreen of the media hype, the megaphone politics?
It is surprising how often the underlying motives, concerns, aspirations or objectives of key players are obscured by the fight. In the US, of course, the underlying cause seems to be resistance by Republicans to President Obama’s healthcare reforms. But if you strip away another layer, what lies beneath? Resentment at President Obama generally? Republican fear that the demographic shift in the US means their electoral base is eroding?
In a court case, the claims can often be symptoms of other unaddressed needs, which the litigation system cannot address. How often do we see money sought because money represents the only remedy available when, in reality, what the claimant needs is an apology, an explanation or some other outcome which a court cannot provide? In a case reported recently, a girl injured at school six years before said: “I never got an apology… not a personal apology from anyone.” Despite being awarded damages, she was still unhappy.
While mediating a commercial case of considerable monetary value recently, it became clear the real issue was that senior level people on both sides felt that their counterparts had shown disrespect towards them in handling a complex contract. When the two sides locked horns on a series of contractual claims, it was difficult for them to do what is often necessary and costly only in terms of loss of face – to apologise, or at least acknowledge relations had broken down, and recognise the impact that had on commercial dealings.
What is also essential, of course, is communication. In the US, the refusal of politicians to meet and talk about the difficulties seemed scarcely credible. These are key players in the world’s largest democracy. They are elected to serve.
“Why didn’t we have this conversation a year ago?” are words I often hear in mediation. And yet we all recognise the symptoms. At home, at work, in business, in politics, we struggle to engage with those by whom we feel undervalued or towards whom we feel antagonism. No doubt the same applies in the US Congress. Even President Obama, a proponent of mediation, with the appearance of being shrewdly above all of this, is human like the rest of us and might default into more primitive behaviour when under pressure or feeling threatened.
This behaviour tends to reinforce opposing positions. However, what we really need is to identify common interests. Longer term, what is in the real interests of the people of the US? Setting aside the political paradigm of win/lose, what are the options for achieving a sustainable outcome? Rationally, what do they need to do? It was fascinating to see that the Chinese have intervened: they now have a real interest in the functioning of the US economy and, paradoxically, the US now probably needs to keep China onside.
Similarly, in commercial negotiations, there can be outside constituencies which have a real interest in the outcome. These might be investors, board members, other partners in a firm, employees, sub-contractors or trades unions. Writing the “victory speech” to satisfy their needs is not easy, just as satisfying one’s political hinterland cannot be easy for those in Congress.
Finally, what can be missing in negotiations is a thorough examination of the options. We live in a binary world, of yes/no, right/wrong, black/white. But, of course, the world is rarely so simple. Complexity abounds. The “answer” may lie in some undiscovered gem and only digging among the dross will find it. Identifying all the possible ways forward and then assessing these rationally against objective benchmarks ought to be the hallmark of good problem-solving. But, as in Congress, many of us are still locked into a fault- or blame- based theory of negotiation. Unfortunately, the resulting zero-sum outcomes serve very few of us well.
Enabling effective communication, identifying the underlying issues, searching for real interests and assessing options. That is what a good independent mediator should help parties to do. Maybe, unknown to us, there was such a role played on Capitol Hill. We may never know.
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