Negotiation for the Mediator.
Negotiation for a mediator has been compared to the act of herding cats. Few people are happy to be involved in a mediation, particularly when it has been ordered by the court. Occasionally, a mediator might luck into an opportunity to deal with amicable parties, which can make the negotiation a simple affair taking little time at all. Most times however, a mediator’s knowledge of negotiation skills can mean the difference between swift resolution and months of impasse.
Here is an example of effective mediation: Two men are alone working in a third floor office in a building near a busy intersection downtown. The Sun is beating hot and bright through the one window to the outside. One man finds the heat and still air stifling; he wants to open the window so he can work. The other man cannot concentrate with the noise of the traffic an open window would let into the room. He does not want the window open even just a little bit. A fan would blow their paperwork around and there is no window-shade to pull. These two men are at the classic impasse.
Your job as a Mediator is to show them they can open the door to their office, then open the window in the next room over.
In Mediation, who is the buyer and who is the seller can be a fluid concept.
ALL parties involved in the negotiation are selling, even if they are in the position of the buyer. Buyers are “selling” the sellers on the concept that what they have to offer, is of less value than the price. Like it or not, we are almost always in the process of selling ourselves, to one purpose or another.
Men attempt to sell women on the concept that they are worthy suitors. Women attempt to sell men on the concept that they are worth being pursued. The advantages to Men when they flip that script are enormous. That will be the subject for a different article, however.
When differing parties have exhausted their selling points, negotiations have ground to a halt or become completely circular – all sides simply repeating themselves in the vain hope that repetition equals persuasiveness – and there is no legal precedent or language which clearly supports one claim over another, a Mediator becomes necessary. Which, interestingly enough, puts the mediator in the position of the buyer.
All parties involved are going to attempt to sell the mediator on the merits of their position. All the rules posted earlier for negotiation still pertain: If at all possible, listen to each party individually and in detail, before sitting them down together for negotiations. Make absolutely sure you know their positions and arguments, clearly. Even if you see holes in one side or the other, hold your tongue until negotiations begin, or they will automatically assume you are “on the other side.”
If the parties being mediated remain calm and conversational, by all means do so yourself. If, however, they become heated during the negotiation… react equally. Some people feel that the best way to deescalate an argument is to just keep, speaking calmly. All that really accomplishes is angering people further. To remain calm in a heated situation is to imply that you are really not listening, or simply don’t care. That creates deeper frustration and escalates aggravation. While not advocating getting into a yelling match, sometimes maintaining rapport can require you to raise your voice. React equally, so you can maintain control of the negotiation; you are in charge, act like it.
Remember that as the Mediator, you are the Buyer; buying at the price you want to pay requires Selling. Start High. Remember that you want to deflate the seller’s expectations. When opening the negotiation, ask all parties involved to agree to the other side’s terms, or simply drop their claims altogether. They may laugh at you, but it is not unheard of for people to tire of their efforts and simply want to be done.
Your goal as the Mediator is to bring the entire affair to a mutually agreed upon End, as quickly and efficiently as possible; NOT to convince one side that the other side is right. They’ve already been trying to do that to themselves for awhile now, or they would not be needing a mediator. Yours should be the voice of Authority and Finality.
Take pains not to confuse yourself with a Judge. Judges’ rulings are based on Laws or Precedents, and do not require Agreement from those being judged. Often times, differences of opinion do not involve cases of Wrong vs. Right. They involve cases of Want vs. Want, or even Need vs. Need. Your job is to secure agreement where none has previously existed without the backing of the Police.
If you can secure signed declarations, prior to your negotiations, that all parties will abide by your solutions, well done. Your job is now simply one of determining what is most fair for all parties involved and putting it in writing. It’s still a rather heavy burden, because little in life is black or white. Remember, you wanted to be a Mediator, not a burger flipper.
If, however, you’re dealing with personalities or egos who feel you are just another “suit”out to deny them their desired outcomes, you are going to have to establish far more than simple rapport. You’re going to have to establish Dominance and know clearly what the underlying motivations are behind the positions the parties hold. How exactly to make that determination will be covered in Lesson Six: Motivational Psychology.
Editorial by Ben Gaul