Mediation Game Changers
Mediation presents an opportunity for disputing parties to engage in purposeful dialogue that can effect change. Changes in opinion, understanding and perspective can have a groundbreaking impact on the mediation process and the outcome of negotiations. Below, I discuss three mediation game changers and their potential impact on effecting change.
Game Changer #1: Information Synthesis
During the course of litigation, parties forage for and gather information that supports and bolsters their position. Typically, this is done through the exchange of documents and oral discovery. By the time the parties get to mediation, particularly if they’ve been through discoveries, their legal theories and positions have become entrenched and hardened. Mediation often presents the parties with the first opportunity to collectively and collaboratively share, weigh and evaluate the entirety of the information amassed on all sides of the dispute.
This process of information sharing and synthesis provides the parties with an opportunity to formulate a more complete view of the conflict and gain enhanced insight into the relative strengths and weaknesses of their case, weigh the chances of success at trial and explore the potential ingredients needed to fashion a fair and reasonable negotiated outcome.
Game Changer #2: Understanding Intentions
Attribution theory teaches us that people tend to see the worst in others and the best in themselves. To illustrate, when a person feels wronged by another, they may infer that the other person’s actions are the result of a character flaw (such as, selfishness, vindictiveness or carelessness). On the other hand, when a person wrongs someone else, they may blame the circumstances (including the lack of better options, the actions of a third party or simply being in the wrong place at the wrong time).
The mediation process encourages disputing parties to challenge their assumptions about one another and explain the intentions behind their own behavior. When each party is able to understand their counterpart’s intentions, they may be more inclined to negotiate with that person. This deeper understanding has the potential to turn an emotionally charged negative exchange into a positive and productive interest-based conversation.
Game Changer #3: Perspective Shift
At its core, conflict involves a difference of perspective. A productive mediation session should offer each disputing party with an opportunity to see the conflict through their counterpart’s eyes, But, parties entrenched in their positions tend to view the conflict only from their own vantage point, with a focus on settlement options that meet their own needs. Parties with this mindset may rush through the early stages of the mediation process - past the information and interests sharing stages - to resolution. Unfortunately, these people miss the heart of the mediation and the opportunity to fully voice, challenge and shift perspectives. Conversely, a party that can acknowledge and understand their counterpart’s perspective will be better equipped to shift from entrenched positions, consider shared interests and explore outcomes that address each party’s needs.
Maximize Mediation
As the old saying goes, there are (at least) two sides to every story – two sets of information, intentions and perspectives. The litigation process discourages shared understanding and movement towards a mutually beneficial outcome. But, utilizing the three game changers in mediation may help to stimulate engagement at the negotiation table, enhance negotiation flexibility, and facilitate the development of more durable, interest-based outcomes.
