How Mediation Works, Part One: Identifying Underlying Interests
- August 17, 2009
by Joe Salama
There are many different philosophies and styles of
mediation, some more suited to specific applications than others.
But, despite these differences, the basic concepts behind how
mediation itself works are relatively straightforward. One of
the most important concepts in resolving a dispute is to distinguish
between positions and real interests.
Each party has taken a position before entering the
mediation. The position is based on weeks, months, or sometimes
years, of disagreement with the opposing party/parties, and
is well-entrenched. Examples of these positions might be something
like the number of weeks vacation offered to the employees of
the company in a labor dispute, or the total number of computers
that need to be shipped to a retailer to make up for a deficiency
from a prior month in a commercial dispute. And the parties
have been arguing over these positions with little or no success,
precipitating the call to the mediator.
The key for the success of the meditation is for the
mediator to ascertain the true interests of the parties underlying
these positions. This is, generally speaking, not always easy
to do.
Intertwined with the positions, of course, there are
often several layers of emotion, including: Avoidance, blame,
hostility, ego/fear of showing weakness, saving face, and the
list continues. Often, a large part of the mediation involves
getting through these emotional barriers. It is important for
the mediator to be delicate, focused, positive, and to keep
things moving in the right direction in order for the mediation
to survive this part of the session, or else one of the parties
may walk out or otherwise withdraw from the mediation. Once
these aspects have been addressed, the interests of the parties
can begin to surface.
The number of weeks of vacation time offered to the
employees may have actually been a position that was taken because
of an underlying interest in avoiding another unpaid week of
vacation - in other words, it was a an affordability/productivity
issue rather than simply a vacation issue. Now that it has been
identified, it would invite a possible solution that was not
otherwise ascertainable by allowing the employees to earn extra
vacation time, maybe even two extra weeks, based on how many
hours they work during the year.
The total number of computers that need to be shipped
in the commercial dispute - it may turn out that the retailer
simply had an interest in protecting its reputation with one
big customer, which was ruined because of the deficiency last
month, and the retailer may have even overinflated its current
month's needs as a way of penalizing the wholesaler. A possible
solution which now presents itself would be for the parties
to work together to make that particular customer's computer
needs feel especially met for the next few months at a much
lower cost than what the retailer's opening position initially
was.
In the real world, it is not always possible to ascertain
the true underlying interests for each of the parties, not all
parties are always open to a rational exploration of possible
solutions to their problems and, unfortunately, not every conflict
is always resolved through mediation. But it always astounds
me how often people tell me that I will never get the other
side to agree to mediation, and the other side jumps on the
opportunity. Suffice to say, the chances are good that all sides
to a conflict are equally frustrated, and willing to try a different
method of resolving their conflict. Further, mediation continues
to enjoy an amazingly high rate of success.
One final comment, although it is important that you
find a mediator with experience in the type of dispute you would
like resolved, it is also very important that you feel comfortable
with the mediator you select and can communicate effectively
with him/her. Do not simply select a mediator based exclusively
on reputation without first speaking with him/her to see if
the mediator can truly understand you and your interests.
© 2010 Mediation with Joe Salama
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