How Mediation Works, Part Two: Expanding The Problem - August
19, 2009
by Joe Salama
Although an exploration of underlying interests is
important to get the parties away from position-based negotiation,
often the underlying interest for both sides is the same, and
it doesn't lend itself to simple resolution. This is when the
underlying interest of the parties is about money.
A classic mediator approach to this type of situation
is to separate the parties into separate rooms and begin telling
each of them, using well-reasoned legal arguments and case law
examples, why they will not win in litigation, and why they
must therefore compromise their respective positions. This approach
typically involves long sessions and lot of back-and-forth bargaining,
with each party being made to feel progressively worse about
their opening position. The parties often get to a point where
they have bridged 90% of the distance between their opening
numbers, and then they stop making progress. A good mediator
will have seen this coming in advance, and may be able to get
the parties past this point. But sometimes the conflict will
not resolve, through no fault of the mediator, despite that
the parties are only 10% apart. Make no mistake, this is not
an easy process for anyone involved, and it takes much skill
on the part of the mediator to obtain a settlement under these
circumstances.
One alternative to this approach is known as expanding
the problem. This is based on the premise that there must be
something else besides money that has value that each party
can offer the other party/parties that can be put on the negotiation
table. Let's say we have a contractor who built a house for
a couple on a lot. The couple prepaid for all of the materials
and the labor. The couple was unhappy with a substantial portion
of the result, claiming that it was not done according to specifications,
and hired another contractor to redo it at a cost of $50,000.
The couple simply wants to recover the $50,000 they had to spend
to correct what they perceived as deficiencies.
Rather than simply going back and forth on a dollar
amount that the contractor will pay the couple, if any, and
argue over the extent of the deficiencies and whether the work
that was redone was necessary, the mediator can try to find
other things that the couple could want from the contractor
in lieu of money, or a portion of it. Perhaps the contractor
could extend the warranty on the work that was performed to
couple's satisfaction or build a further minor addition to the
house at no charge, in conjunction with a lower dollar
amount than the $50,000. On the other side, maybe the couple
could agree to be a reference for the contractor and even allow
potential clients of the contractor in to see the house by appointment.
Further, the terms of payment of the settlement amount can also
be a way to expand the problem. For example, perhaps the parties
would be willing to settle for $50,000 if it is paid
in monthly installments over several years. Several of these
things could even be offered simultaneously.
Although it may seem like introducing more variables
is making the problem more complicated than it needs to be,
it is doing just the opposite: it is making settlement more
attainable than it would otherwise be. Expanding the problem,
if possible, increases the chances that the mediation will successfully
resolve.
When you select a mediator to resolve your conflict
or your client's conflict, try to ascertain whether that mediator
would be open to expanding the problem. A little more time spent
selecting the right mediator could make the difference.
© 2010 Mediation with Joe Salama
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