By Patricia Barrett, CFP CDFA Mediator
Mediation is the process of communicating back and forth in order to reach an agreement. A wise agreement is one which meets the legitimate interests of both parties as closely as possible, resolves conflicting interests fairly, and will be long-lasting.
Positional bargaining: Both side take a position, present their arguments, make compromises, and reach an agreement. Since both parties concentrate on their individual positions, they neglect the real underlying problems to be solved. Refusing to compromise, stonewalling and other negative behaviors are common, possibly causing a breakdown in mediations.
Positional bargaining usually results in animosity between negotiating parties and discontent with the whole mediation. The result is an agreement lacking the qualities of a wise agreement, or worse, no agreement at all.
To better serve the negotiating parties, a method is available to address the individuals’ real “interests”, not locking them into their “positions”. Without having a “bottom line” to defend, they remain open to hearing discussions and options. Their interests are the underlying factors leading up to the problem being solved, the reasons behind their positions. Interests provide the framework for mediations, allowing parties to concentrate on the real-life situations bringing them to the bargaining table.
The method is called “Principled Negotiation”, wherein the mediator separates the people from the problem and focuses on interests, not positions. Additionally, numerous possible solutions to the problem are presented, encouraging each party to contribute. A specific “standard” or criteria is used to assure fairness. For instance, comparable sales to establish the value for a home or rule of law or expert opinion can all be methods to establish a standard. To summarize this method, utilize the following basic tenets in each stage of mediations:
Separate people from problem
Focus on interests not positions
Utilize a specific standard to assure fairness
Present numerous possible solutions
In order to separate the people from the problem, it is necessary to handle the mediation as a group of people all trying to solve the same problems, not as adversaries. In this manner, we can acknowledge each person’s feelings and beliefs, yet keep returning to the underlying problem.
Parties usually enter into mediations with specific “positions” to which they firmly adhere. This sets up a meeting for animosity with little area for face-saving in mediations. A position has underlying issues or interests. Such interests can produce varying positions. Differing yet complementary interests can form the basis for an eventual agreement.
The specific standard should be one recognized by all present as the expert opinion, law or measurement. This removes individual positions and uses these guidelines to help form consensus on certain items of mediation. Instead of focusing on what one party must concede or is unwilling to concede, the standard provides an area for agreement, even if only for a portion of the mediations.
Ideas generated should attempt to find solutions that will allow gain for both sides. As the entire group attempts to brainstorm, develop many options to discuss later during mediations.
There are three stages to mediation:
During the analysis, you want to identify interests of each side, acknowledge any emotional issues or misconceptions. You gather information and organize it, making note of any options already presented by either side. The standards of comparison are also presented and noted, thereby providing a chance for some agreement on the method of measurement or rule of law.
While in the analysis stage of mediation, you should still use the four basic premises of Principled mediation:
1. Separate people from problem
2. Focus on interests not positions
3. Utilize a specific standard to assure fairness
4. Present numerous possible solutions