By Patricia Barrett, CFP CDFA Mediator
“Dovetailing” is a very desirable method used in mediations wherein the interests of one party can be satisfied at little cost to the other party. Or conversely, is there a solution that costs you little but satisfies the other party? Sometimes differences in beliefs, attitudes and priorities can allow compatible dovetailed solutions. If such solutions can be offered, you can offer an easy decision where a difficult one existed before.
It is never too early to start drafting an agreement, even if it is early in the negotiating process. This can help to organize the event and your thoughts.
Try to base a proposed solution on precedent, on another similar situation. The other side will usually agree to go along with something they consider fair and honorable. If they perceive a solution as the right thing to do, they are much more likely to agree.
Although you should avoid threats during mediations, it is entirely appropriate to include a description of the consequences of not agreeing to a settlement. Perhaps you can include a method of improving the consequences from their viewpoint.
Try to invent a solution to which the other side can answer “yes”, where the outcome would be realistic and achievable. Creative inventing of ideas is essential to an outcome to which both parties readily agree.
Use objective standards in arriving at a proposed solution in order to reach a solution based on principle and not on pressure. The more you can bring scientific measure, expert opinion or research into the mediations, the more likely you are to produce a solution agreeable to both parties. Since a battle for dominance often occurs during mediations, the use of objective standards can make it easier to deal. This can strengthen the relationships among the negotiators and make agreement possible.
Objective Standards for Mediation:
Try to frame each issue within a search for objective standards. Agree on which standards are appropriate and should be applied. There may be more than one standard that applies to an issue. If more than one standard is suggested, try to decide among them logically based on merits and appropriateness to the situation. This allows both parties to agree in principle without giving in to pressure.
The mediator should develop appropriate objective standards prior to the session in order to be prepared to present them at the proper time. Obviously, the standard must be unbiased in either side’s favor and be legitimate and practical.
If no objective standard exists to further a discussion, consider using “fair procedures”. This is the age old practice of one person cuts the cake, while the other chooses which slice. For instance, in a child custody dispute, both parties could agree on the visitation rights prior to deciding on the actual custody. In this manner, both parties have a vested interest in reaching an equitable agreement on visitation rights.
Another method for breaking a stalemate in deciding on a solution is to utilize the services of a third unbiased person, either a mediator or arbitrator. The latter, the arbitrator produces a binding decision.
If the other parties apply pressure in the form of manipulation or threats, allow them to state their reasoning, and apply an agreed-upon objective standard. Refuse to compromise except on the basis of that standard. It is simpler to stand firm on a principle than an arbitrary demand on their part. Principled mediation allows you to remain fair but firm.
When the other side is more powerful, principled mediation can protect you against making an agreement that is unfair to you. It can also afford you the tools with which to maximize your own assets so that you can satisfy your interests as much as possible.