Tip #3
Be Patient
Mediation involves change.  Parties in a dispute typically see the dispute differently. Each party may or may not understand his or her own interests and needs and those of the other party, and each may have unrealistic expectations.  It takes time to address these issues, and it takes time for minds to change.  It is important for parties in a mediation session to allow time for these changes to occur. 

Tip #2
Build a Deal
The primary goal in mediation is to create a deal that all parties can accept.  This is fundamentally different from the goal of litigation, which is to win.  This fundamental distinction can perhaps best be understood by way of two contrasting mental images. The first of these mental images is that of an archer preparing to fire an arrow.  The archer’s concentration and mental horsepower is on such things as the location of his or her target, the conditions that will affect the flight of the arrow, his or her stance, the bow, the prospects for an arrow coming back from the opposing archer, etc.  The archer’s mental horsepower is on hitting the target and, in essence, eliminating the opposition.  The second of these mental images is that of an engineer attempting to build a bridge.  The engineer’s concentration and mental horsepower is on such things as the reason for the bridge, the nature of the subsoil, the options for materials, the critical prevailing weather conditions, etc.  The engineer’s mental horsepower is on creating a way to directly traverse from where one is to where one wants to be. 

Kendall C. Reed
©2007
My purpose in this article is to provide advice for parties in mediation.  The suggestions I make below are not an exhaustive list of potential useful ideas, but these seven can result in considerable improvement in effectiveness.  These suggestions are not particularly remarkable, but at the same time they might be described as “uncommon common sense.”

Tip #1: 
Prepare
It is important that participants prepare for each mediation session.  One is always tempted forgo preparation in an effort to save money, especially given the informal nature of mediation.  This is, however, usually a mistake. 

It is very important for the decision makers to be present and participate in a mediation, and it naturally follows that the decision makers should be advised in advance about the nature of the mediation process, the issues and decisions that will be faced, and the logistics of the process.

It is important that critical documents be present.  It is often the case that mediation results in changed perceptions, and this frequently involves the interpretation of critical documents.  Such a discussion is considerably easier when the important documents in the room at the Mediation session. 

It is important that each party thoroughly understand its interests and needs with respect to the underlying dispute.  If settlement is to be achieved, it will only be because the underlying interests and needs are addressed, and it is extremely difficult to address interests and needs if they remain ill-defined, assumed, and submerged.  For the same reason, it is no less important for each party to understand the interests and needs of the other party.

This article will be posted over the next few weeks with a new tip offerd each week. 

By Kendall C. Reed
© 2008. All Rights Reserved
The mediation process and the mediator’s work have been well described and discussed by others, including Baruch Bush and Folger , Cloke , Krivis , and Moore .  These authors provide a great deal of valuable information and guidance and should be studied.  At the same time, I have found in my own practice as a mediator an approach that is somewhat different from those suggested by these authors.  The purpose of this article is to describe this approach in the hope that others may also find it useful.

I call this approach the “Mediator’s Triangle” (not to be confused with the Bermuda Triangle, which one would hope is an entirely different subject). The first side of the Mediator’s Triangle is Facilitation.  The second side is Overcoming Barriers.  The third side is Creating Motivation for Resolution.  I suggest the image of a triangle because I want to avoid the thought that these are serial steps.  Rather, they are all relevant all of the time.

Facilitation
A mediation session is much like a musical performance.  It takes place at a particular time, at a particular place, and for a particular purpose.  In order for the performance to be successful, many decisions must be made, efforts coordinated, and directions given.   Some of this occurs as preparation and some during the performance itself, but it is all important (two varying degrees) for a successful performance, and without attention to such matters, the performance could very easily be a disorganized mess.

As with a musical performance, a mediation session presents certain “structural” and “behind-the-scene” considerations that are not the direct subject matter of the event, but are prerequisites for a successful event.  Some such considerations include : 
 
     The necessary participants and attendees;

     A conducive date, time, and place;

     Attention to creature comforts;

     The agenda and how the process will move from beginning, to middle, through to an end; and

     Identification and implementation of specific mediator interventions.
I find it helpful, both while planning for a mediation session and during the session itself, to focus on such structural issues as a distinct subject.  Doing so allows me to focus on the tools in the toolkit that directly relate to these issues. 
Overcoming Barriers

Sometimes it is enough that a dispute be facilitated well; however, in my experience this is rare.  Rather, parties in dispute often are unwilling to let go of the fight or are unable to do what is necessary to move past the fight.  I call these reasons “barriers,” and if resolution is to be achieved, these barriers, whatever they may be, must be overcome.

There are many types of barriers.  There are barriers that arise from an interest in continuing the fight, and there are barriers that arise from perceptual and cognitive errors.   In either case, they constitute resistance, friction, and headwind to resolution.  Some of the more common barriers are:

A lack of information; a participant is unwilling to move off his or her position because he or she do not have enough information to know whether doing so is wise or foolish;

     A lack of knowledge about the relevant law;

     A lack of experience with what is likely to happen without a voluntary resolution;

     A fear of being played as a fool by the other participants ; it can be a great deal safer to continue fighting than risk the decision to stop;

     A fear of appearing weak or foolish in the eyes of some important third-party; a fear of losing face ;

     A desire to cause pain in the other participants by way of the fight;

     An unwillingness to admit a prior mistake in starting or maintaining the fight;

     Poor conflict competency skills; the problem of a bull in a china shop;

Being caught in the fundamental attribution error ; one should not be required to dance with the devil;

     Being caught by the natural tendency to overvalue one’s position and undervalue the position of the other participants; and

     Engaging in unproductive cross-talk.
As with facilitation, I find it useful to focus on the issue of barriers as a separate and distinct subject in preparing for and conducting a mediation session.  I find it useful because the tools that I find useful in overcoming barriers tend to be different than the tools useful in dealing with facilitation issues.
Creating Motivation for Settlement

It is sometimes enough to successfully deal with facilitation issues, and it is sometimes enough to deal with barriers.  However, in my experience, more is usually needed.  The participants must be motivated to change.  Think about the space shuttle sitting on its launch pad.  All the structural issues are dealt with and there are no barriers to launch, but without more, the ship is not going anywhere.  It needs thrust.

This is the arena of interests identification, options generation, and problem-solving.  What do the parties want and need? What are the available options?  How can a solution be structured that gives each participant enough of what he or she wants and needs such that all will all agree to end the fighting.

Much has been said in the literature about these subjects, and it need not be reviewed here.  However, and again, I find it useful to focus on motivations for settlement as a separate and distinct subject because I find that tools useful for this are different from the tools useful with respect to Facilitation and Overcoming Barriers. 
Conclusion

Many useful models have been put forward about what a mediator should do.  It is my belief that the Mediator’s Triangle, consisting of Facilitation, Overcoming Barriers, and Creating Motivation for Settlement, is a very effective way of organizing one’s efforts. 

Use Mediation or Arbitration Instead– Faster, Cheaper and Better
Ways to Resolve Business Disputes

RESOLUTIONS-360™
Kendall C. Reed, Esq., LL.M.

I’ll sue! This might be your first thought when faced with a significant business dispute. However, I suggest you think twice before doing so. It could be faster, cheaper, and better to mediate or arbitrate.

Disputes arise in the ordinary course of business; this is a given and it happens despite our best efforts to the contrary. Fortunately, most business disputes are successfully handled by simply talking things out. As we all know, however, this does not always work, and when it doesn’t, lawyers are often called in. When the initial skirmishes between the lawyers don’t solve the problem, litigation is often the inevitable next step. It is important to note that this sequence is by its very nature escalatory and involves increasing cost, loss of control by the parties themselves, and perhaps worst of all, a threat to valuable business relationships.

Is there a better way? I believe there is, and it is to use mediation or arbitration.

What is mediation? Mediation is a process whereby a third party helps those in conflict to find their own solutions. Such a third party can bring many useful attributes and skills to bear on a problem. A mediator is neutral to the dispute. He or she is not blinded by partisan biases, and as such, can better see the reality behind the dispute. People embroiled in a dispute can be remarkably unrealistic in their perceptions of their situation, and skewed perceptions generally lead to foolish actions. A mediator can help the parties see reality.

A mediator can provide a means for people to back down from extreme positions. Have you ever noticed that people in the heat of a dispute play one-upsmanship? This can result in the parties placing themselves out on a limb. A mediator can provide a way back by making non-partisan, sensible suggestions about possible solutions.

A mediator can act as a buffer between the parties. It is human nature that each move by one party tends to be seen as provocation for a stronger counter-move by the other. In this way, and very quickly, an emotional storm can be whipped up. As a result, people can very quickly become enemies, and sadly, this process can even lead to violence. A mediator can step between the parties and control the flow of information such that any provocative aspect is left out. This can cause emotions to cool and reason to return.

A mediator can encourage parties to engage in productive problem solving. In many disputes, emotion and one-upsmanship take over such that noting else is going on. When these issues are controlled, problem solving can begin. This is useful because the parties are usually in the best position to develop solutions. The parties are most intimate with the underlying problems and are the only people who know what will count as an acceptable solution.

One problem solving tool is worth special mention, and this tool is the identification of interest. Most of the time, people in a dispute are very clear and forceful about what they want. Unfortunately, most people don’t realize that what they say they want is, at best, only one option for getting what they really want, and this type of fixation can prevent flexibility.

Let me give you a hypothetical example of this distinction between positions and interests. Let’s say that my wife and I are talking about where to take our next vacation. I want to visit my family in Colorado. My wife, on the other hand, wants to go to the beach. These are our positions, and on the face of it there is no middle ground. However, instead of arguing back and forth about which of our positions is better, we might shift our focus to our respective underlying interests. If we do so, we might find that I want to visit my family because I want to experience family dinners and recapture a sense of closeness. We might also find that my wife wants to go to the beach so she can experience quite, sunshine, palm trees, and tropical breezes. Viewed in this way, our disagreement might not be a disagreement at all. There might be any number of ways for each of us to get what we want. One possibility might be for us to organize a joint family reunion in Hawaii. A good mediator is adept at encouraging parties to look past their positions and explore their interests.

Having said all of these good things about mediation, it is not always appropriate. Some disputes require a decision. When this is the case, litigation can be appropriate because this is the essence of litigation – a judge or jury decides the matter. At the same time, this benefit comes at the cost of the negatives I mentioned above, such as cost, loss of control, lawyers, etc. Fortunately, even when a third party must decide a dispute, litigation is not the only option. You can use arbitration instead.

What is arbitration? Arbitration is a process whereby a private third party makes a binding decision, but all other aspects of the process are within the control of the parties. The parties are free to choose an arbitrator who knows the subject matter of the dispute or the industry in which the parties work. A knowledgeable person is less likely to be fooled by one side or the other. The parties are free to set the date for an arbitration hearing, rather than waiting many months or years in the court system. Nothing prevents the parties from having a hearing a week after a dispute arises, which can be extremely useful in the context of an ongoing relationship and where a fast decision is necessary. This is a process used today in the construction industry to great effect. The parties are free not to use lawyers, which can result in a considerable savings.

Arbitration can cause bad feelings, just like litigation, but in arbitration this can be minimized. A quick, inexpensive, and fair decision between parties who have an honest disagreement can allow everyone to move on with minimum damage to their working relationship.

So, the next time you think – I’ll sue! – I urge you to follow that thought with – but let me first consider mediation or arbitration.