For commercial mediators it is obvious that commercial interests such as the need to make a profit are the most important incentives for the parties to settle, in the context of course of their legal rights. But in practice and in theory, attention to psychological or personal interests (e.g. reputation, autonomy, status or acknowledgement) is often key to resolve commercial disputes.
The mediator in a multi-million rand divorce case recently demonstrated the power of an apology. The husband, a successful entrepreneur, had had a string of affairs after the birth of the couple’s first child. When the wife found out about his infidelity she immediately packed her bags and sued for divorce. The husband adamantly denied ever having an affair and his estranged wife responded by systematically increasing her claims against him.
At the mediation, the mediator asked the husband during a private session that if true, what would he fear most about admitting that he had the affairs. The attorney objected to the hypothetical question but relented after the mediator assured them that the private session is entirely confidential. The husband saw an opportunity in the hypothetical conversation to clarify his own fears. He said what he would fear most is that his wife would become even angrier than she already was. The mediator asked him to consider, counter-intuitively, whether admitting and apologizing may not have the opposite effect on her.
Two days later in a follow up session the husband broke the “news” to his wife that he had been unfaithful and apologized. For a moment the wife appeared shattered, the husband’s eyes were downcast. The mediator was about to call for a private session but the wife turned to her husband, “now I may one day be able to forgive the father of my child.” She did not want a private session. After many hours of tough mediation the material aspects of the dispute were settled in a way that would never have been possible if the husband had not made the apology.
Commercial mediators may pride themselves on being hard-nosed, but attending to the underlying personal (psychological) interests of the parties often paves the way for the parties to constructively settle the material aspects of their dispute. Or as Francois Botha, University of Cape Town’s mediation expert and musician prefers to say, “sets the tone for constructive negotiation.”
This article aims to provide detailed insight into the concept of mediation for corporations and likeminded entrepreneurs. Whether the dispute is over an amount of money owed or over the...By Mohammed Saleem Tariq