Friday, March 21, 2008

Stupid Mediator Tricks (2)

One of the justifications of mediation with a neutral over straight negotiation between two parties is the ability of the mediator to reduce strategic behavior. That is, if in a negotiation without a mediator a party is engaging in negotiating tactics that are frustrating the settlement process and the other party objects, then the conflict simply moves to the meta-level of whether the negotiation is proceeding in good faith. If a mediator calls a party on the carpet for engaging in divisive tactics, preferably in caucus, the mediator's impartiality can have greater effectiveness.

But, of course, all parties use negotiating tactics that seek to promote their own welfare in every mediation, and the mediator has to be alert to not only recognize strategic behavior, but also to be frugal in calling timeouts over the overly self-interested negotiator. No one likes a nag, and a mediator loses all moral authority if the mediator nags to no effect. What to do?

Part of the mediator's responsibility is to have the parties not only identify their own interests and objectives (and understand how the current conflict is denying them the ability to achieve them), but also understand the other party's interests and objectives. If a party understands the other party's interests and objectives, a party can understand how the conflict is a joint problem, in which any proposal must not only advance the party's interests but also satisfy the other party's interests. The parties are connected by a conflict, which is a social bond as much as any other.

Sometimes, I will ask a party, whether in caucus or in open session (although usually first in caucus) "How does that proposal (or statement, or question etc.) solve our common problem?" The usual answer, which need not be spoken, is that it doesn't, it merely advances the party's own self-interest. If I get the sense from the opening statements that the parties are too entrenched in advocacy mode (say 10 out of a scale of 10, rather than the normal 8 out of 10), I will use the "summing up" mediation tactic in open session, in which I try to replay back to each party what I heard each party say, but I will try to massage my reading with an interpretation that identifies certain interests as shared interests, and the conflict as a common problem. Then I will finish this summation with the question, "I am now interested to hear how we are going to solve our common problem."

Usually this invites slightly pained expressions from the parties. But as my high school athletic trainer used to say, "If it hurts a little, that's good!"

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