Mediation is a process in which a neutral third party is brought in to assist a negotiation.
The question arises: why can't the parties negotiate the matter themselves? And why would a third party help things?
The answer is that traditional two-party negotiations suffer from a number of inherent barriers to successful negotiation. A mediator comes equipped with a process, techniques and knowledge designed to dismantle these barriers. Read on the find out how.
The first barrier to negotiation success is that parties to a negotiation are inherently biased.
Human brains are wired to take a number of shortcuts when processing information, known as 'heuristics'. These shortcuts often lead to systematic inaccuracies, which can have significant ramifications in negotiation.
One example of a negotiation bias is overconfidence. Studies show that parties to a dispute will consistently overestimate their own chances of success, for example if the dispute were to go to trial.
In a legal dispute, if both parties believe they have a 90% chance of success in court, they can't both be right. The bigger the difference in perspectives, the less likely they will be able to agree on a fair settlement of the dispute.
As a neutral party, a mediator is not affected by these biases when assessing the situation (at least not in the same way). Furthermore, many mediators will be trained to recognise these biases and know how to deal with them.
While a mediator will rarely offer an evaluation the chances of success for the parties, they can help the parties to see things more objectively through gentle guidance and techniques such as reality testing.
A second inherent barrier to successful negotiation is that there is unequal information between the parties.
The key to success in any negotiation is to deveop an understanding of the other parties' underlying interests and to find a mutually beneficial way to satisfy those interests.
However, this is very difficult when the parties mistrust one another. Without trust, the party may be reluctant to 'give away' too much information, for fear that it will be used against them.
This is where a mediator steps in. There are a number of tools and techniques a mediator can use to help build this trust and to identify the real interests in the dispute.
For example, in some commercial mediations where the information is sensitive, the mediator may hold private meetings with each party as part of the mediation (known as caucusing). The parties can then share the confidential information with the mediator privately.
Equipped with this information, the mediator will have a stronger understanding of what is required for an agreement, and can guide the parties in this direction.
Even without private meetings, the mediator can still help build trust between the parties by framing the issues in a positive and constructive way to encourage dialogue.
In many the cases, the very presence of a third party will encourage collaboration, as each party wants to be seen in the eyes of the mediator as being 'the good guy'.
Emotions and the Blame Game
A final barrier to negotiation is the fact that in many negotiations, the parties may be emotionally invested.
This can derail effective communication and prevent the parties from engaging in constructive dialogue. In 'principled negotiation' terms, this prevents the parties from separating the people from the problem.
The hallmarks of a good mediator are emotionally intelligence and excellent communication skills. These skills are invaluable in a negotiation, as the mediator can help the parties to focus on the problem, and not get bogged down in wasteful exercises of blaming or even name-calling.
Each negotiation is different and the mediation techniques used are many and varied. Sometimes the dispute may simply be a result of poor communication and the mediator can help the parties express themselves more effectively.
Even in a commercial situation, the parties may be more emotionally invested than they let on. The very fact that there is a structured process in place will prevent the parties from getting sidetracked from the core issues. If the mediator recognises things are getting out of hand, they can intervene, reframe the conversation and get things back on track.
Learn More About Mediation and Negotiation
Mediation is many ways a catalyst for successful negotiation. It provides the framework to dissolve structural barriers to agreement and achieve a more efficient and mutually beneficial outcome.
These are just some of the ways that mediation can help, but there are many more. For example, a mediator will also be trained to help the parties brainstorm and generate creative solutions, which can increase the chances of a win-win outcome.
This isn't just theory either. Statistically, mediation is likely to successfully result in agreement. In the UK, CEDR recently reported an aggregate settlement rate from mediations of around 86%.
This effectiveness has resulted in the rapidly growing popularity of mediation around the world. Governments in particular have sought to encourage it as an effective way to reduce the public cost of litigation, and the costs to the parties themselves (a win-win!).
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