Good negotiators can learn a number of lessons from the dynamic of the mediation process.
How does mediation help?
A conflict is often identified as being ready for mediation when the parties themselves are no longer able to find constructive ways forward. The fact that most mediations end up in resolving a dispute suggests that there must be something about the presence of a mediator or the dynamics of mediation which facilitates the negotiation process. Understanding these dynamics can help parties to negotiate more successfully in the future.
What tends to happen?
By building rapport with each party, the mediator can make the parties feel comfortable with the process and start to build a dialogue first with each party and then between the parties.
The mediator can encourage the parties to start to look forward rather than just looking back, encourage them to avoid terms like blame and fault and to recognise the ways that both parties may have contributed to the problem.
When put under the pressure of trying to get the best deal they can by the end of the day, parties tend to be more “realistic” in their objectives. Very few parties relish the idea of continuing to live with the stress and cost of continuing with the conflict if the mediation fails. They recognise the benefits of achieving a “certain” outcome rather than running the risks of going to trial. Often both parties gain from reaching a deal.
Offers can be formulated in a more constructive manner - a mediator can give immediate and independent feedback to a party wishing to make an offer giving an indication as to how it might be perceived by the other side. The parties move more quickly to a realistic position.
At that point, the appointment of a mediator, who will be someone independent from the dispute, can help the parties to separate their own interests and needs from their stated positions.
In addition, face-to-face meetings offer a much richer vein of inter-personal communication that can be achieved through “without prejudice” correspondence. Since the mediator has no “history” within the conflict, and is usually highly trained in techniques of listening and re-framing, the mediator becomes very good at being able to elicit what a party might really want even before they have told their own lawyers.
Often, once the lawyers get involved in representing a client, all communication between the parties is handled by the lawyers. A mediation can allow the parties themselves to regain control of the process and the communications. The court system and many of the lawyers who operate within it tend to be adversarial. Often the representativies for both parties will have been in “broadcast” mode, rather than “listening” mode and will have been seeking to persuade the other party to their point of view... without success!
However, a good mediator will encourage the parties to adopt a more collaborative and problem-solving approach. By getting the parties to identify underlying interests and needs a mediator can encourage them to adopt an integrative approach, making sure that every opportunity to create additional value is explored, moving the parties from a win/lose mentality into a win/win mentality involving principled but open-minded negotiation.
Six key points that a good negotiator can learn from these techniques
- Identify mutual gain: Look for opportunities to create a strong mutual purpose to having a dialogue. It is often in both parties’ interests to resolve the conflict rather than pursue it.
- Identify barriers: Get a sense of whether there are absolute barriers to negotiation (e.g. power imbalances) or perceived barriers (reluctance, “not the right time”); seek to identify and then address concerns over the “process” of resolving the dispute by negotiation.
- Be realistic: Have a realistic view about the merits of your own arguments. If necessary, seek a second opinion. It can be really difficult to step back from the detail and look at the bigger picture, but a good negotiator needs to find a way to remind himself constantly of the biases which can apply. You do no-one any favours by running arguments which are unlikely to succeed. Recognise your own biases.
- Maintain the dialogue: Representatives of the parties, in particular, need to learn how to become part of the solution rather than being a cause of the continuation of the problem. The more adversarial the approach the more difficult it becomes to remove barriers and create opportunities to try and negotiate a resolution. Wherever possible adopt a collaborative/problem-solving approach.
- Communicate effectively: Recognise that face to face meetings will nearly always be more productive than endless, lengthy, correspondence. For those who are confident, they offer a really good opportunity to address key issues.
- Recognise when to mediate: There can be many situations in which people choose not to negotiate, such as when there is a strong power imbalance between key stakeholders, where there are outstanding fears, major difficulties in communication, a lack of information or polarised positions of opposing parties. In those situations, one party will not be confident about being able to represent themselves properly in negotiations. The use of a mediator who is aware of these problems can dilute the impact of these barriers to constructive dialogue.