Revised August 26th, 2021
Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.
So a mediator, serving as an impartial third party can guide the parties to a dispute through the use of Fisher and Ury’s “principled negotiation”…let’s look at how that can happen…
Don’t bargain over positions. Arguing over positions produces unwise agreements, is inefficient and endangers ongoing relationships. Mediation is the process that follows these principles established by Fisher and Ury.
Separate the People from the Problem. This can be accomplished by asking each party to walk the mediator through the history of the conflict—observing this discussion, rather than participating [battling] in give and take, may have profound effects. Even an apology, in the right context and setting, can be most effective. Note that an apology is not always required, or even desired. However, it is beyond question that effectively conducted examination of the disagreement without reliance upon personalized invective often unlocks the parties’ ability to see solutions they can accept.
Focus on Interests, Not Positions. More often than not, almost always, in fact, there are common threads or desires which each side can accomplish without any cost to their opponent. The simplest; end the fight and the legal bills; or allow refocus on productive activities that the dispute has diverted each side away from.
Invent Options for Mutual Gain. This often requires thinking beyond the legally proscribed Remedies learned in Law School and legal practice…often in caucus but sometimes in joint session, one party, in discussion with or through the mediator brings up a beneficial element for the other party that has been masked, if you will, by the fight. This is NOT just telling the other guy what he/she did wrong but moving towards mutual problem-solving in a positive environment.
Insist on Using Objective Criteria. Mediators can [re]introduce objective criteria as a basis for negotiation [Market Value, Precedent, Scientific Judgment, Costs etc.] Often these are NOT new to the parties…sometimes they and counsel are too long in the fight; and sometimes the client is no longer hearing the good advice counsel has been offering all along.
Recommended Reading: Getting to Yes Negotiating Agreement Without Giving In Roger Fisher and William Ury with Bruce Patton Editor, 1981, 1991