The Mindset for Successful MediationApril 2019 – Insight
The proverb is true – it does take two to tango.
It is equally true in mediation. For adversaries to reach a resolution, they need to come to terms on the merits. To maximize the chances of a successful resolution, they should also be of the correct mindset. I have found that one mindset maximizes the chances of success.
By definition, parties come to mediation with a dispute. Frequently, the parties are embroiled in litigation. The inherently binary nature of litigation – for Party A to win, Party B must lose (and vice versa) – is an impediment to settlement. Trial is an excellent place to determine a “winner” and a “loser.” By contrast, mediation is a terrible place for a “win/lose” approach. Why? Every party seeks to “win.” But how often does a party agree to an outcome that makes it a “loser”? Never. Because neither party willingly dons the mantle of a loser, a “win/lose” approach to mediation is doomed to failure.
In 1981, a major advance in bargaining theory appeared with Getting To Yes by Roger Fisher and William Ury. This book spawned the phrase “win/win” which is now firmly embedded in the lexicon of lawyers and lay people alike. Over time, however, a drawback to the “win/win” approach has cropped up in mediation. The same mindset that keeps a party from agreeing to a “losing” proposition also generates a reticence to create a “winning” scenario for an adversary. Parties phrase it differently but the theme is the same: “We spent all this time and money in litigation because the other side should lose, and now you’re telling me I need to find a way for them to win???”
To find the path out of this thorny mess, try borrowing a page from the Rolling Stones: “You can’t always get what you want, but if you try sometimes, you’ll find you get what you need.” Here’s what I mean. You might want the other side to lose, but we know “win/lose” won’t work. So begin with serious introspection – what do you really minimally need, i.e., what’s your “win”? Next – if you walk out of the mediation with your “win”, what should you think about the other side? Try this for an answer – “So what if they “won” too. Who cares?”
The beauty of this approach is its symmetry – the other side can do exactly the same thing. It can focus on it getting the “win” it needs without concern over whether you “won” or “lost” or something in-between.
This approach also helps the mediator get both parties to “yes.” The mediator can skip past counter-productive outcomes – depriving either or both parties of what they need – and focus on bilateral “winning” solutions.
No doubt, some mediations have a “zero-sum game” element. This is particularly true of disputes which focus on an amount of money. My suggested mindset does not tell any party to quit bargaining when it reaches its bare minimum “win.” It merely reinforces the central tenet – you will leave the mediation as a “winner” so don’t deprive yourself of that “win” by worrying about the other side.
So try a “win/_______” mindset to mediation. You will find your clients are happy because they “win” more often and more quickly. As for the other side, ... who cares?