Lockdown Dispute Resolution 101 #9: Learning from the art of mediation – how mediators facilitate party negotiations

Negotiation 1

Looking at the ways in which mediators intentionally put the mediation process and theory into practice is a useful way to explore the skill of negotiating to help us to communicate more effectively in lockdown and to positively prevent, manage and resolve disputes.

This post identifies some of the ways in which mediators assist the parties in a mediation by facilitating the negotiation process for them.

Facilitating parties’ negotiations

Mediators contribute expertise in numerous dimensions to assist parties to negotiate more constructively, efficiently and productively – managing and influencing the parties’ bargaining efforts. All mediator functions, in particular those relating to conduct of the process and assisting with the parties’ communications (see post #8), have bearings on the progress of negotiations.

The role of facilitating the parties’ negotiations is prominent in the process stage of mediation commonly referred to as exploration – which occurs after the problem-defining (or agenda setting) stage of mediation. The mediator brings focus and refinement to the parties’ negotiation efforts, systematically going through each of the items on the agenda and supporting the parties to communicate effectively about them. These discussions then enable problem-solving and option generation leading to the possibility of mutually acceptable decisions about the issues that were previously in contention.

Iceberg 1If the parties adopt positional or argumentative approaches, mediators attempt to divert them into an interest-based or problem-solving mode. This requires interventions which shift the focus from positions (or in other words, what a party wants) to interests, needs and priorities (or why a person wants what they want). Positions are the tip of the iceberg, it’s only once the mediator helps the parties to mutually explore and understand their divergent interests that more diverse options for resolution can be generated.

Mediators use strategies such as encouraging the parties to separate the interpersonal aspects of disputes from substantive aspects, they look for and identify areas of common ground between the parties and they use objective criteria to develop settlement options. Mediators also stimulate parties to take account of future needs and interests. They act as catalysts for creative problem-solving by brainstorming with the parties about possible options or alluding to settlement options emerging from similar past situations.

When parties persist in positional bargaining mediators assist with predictable problems, such as responding to ‘final offers’ or ‘crossing the last gap’ (the last gap is a final issue on which the parties refuse to budge from their position or compromise). A mediator might secure the parties’ advance commitment to ways of dealing with the last gap, or when it does occur suggest procedures for dealing with it – such as referring to an expert or using random chance (for example, drawing options out of a hat or tossing a coin). Mediators assist parties in linking tradeable issues, making conditional offers or exchanging some losses for other gains. They educate parties about negotiation realities, for example by normalising difficulties in making final concessions for fear of losing face or jeopardising reputation. Mediators coach parties in separate meetings on how to make apologies or how to respond to apologies from the other side.

Mediators also have the function of assisting the parties to disclose their interests. This is important because people in conflict or dispute often conceal their real needs (and why they want what they want) from both the other side (and sometimes even their own advisers). In addition, sometimes it’s the case that the parties’ needs become obscured in the heat of discussions. When these things happen, the mediator works to assist the parties to articulate their substantive, procedural and emotional needs using skills such as clarifying questioning, active listening and reframing. Mediators also acknowledge the parties’ needs, and seek each party’s recognition of the other’s needs, in order to reorient each towards the other which helps the parties to develop new and shared perceptions of their problem and their relationship. Finally, mediators have the function of assisting parties in clarifying and defining disputed issues. The development of joint conflict definitions can provide a basis for developing settlement options beneficial to both sides.

Mediation skills and techniquesThe mediator function of facilitating party negotiations is extremely skilful and represents the true art of mediation practice. It requires a deep functioning knowledge and appreciation of the theories and practices of positional and interest-based negotiation – so that mediators can impart constructive techniques for the parties’ benefit. It is difficult to capture the art of facilitated negotiations in mediation in a way that is easily replicable by us in our homes and virtual offices while in lockdown.

The expert mediator might be absent from our homes and virtual offices, but there are definitely some positive take-home messages from the theory discussed above that can help to improve the way we approach lockdown communications and negotiations. Here are some key points.

We can enact our dispute resolution agency in lockdown communications and negotiations by:

  • Adopting an interest-based or problem-solving mode.
  • Ensuring we look not only at what people in the conversation want, but also why they want it.
  • Separating the interpersonal aspects of disputes from substantive aspects.
  • Identifying areas of common ground.
  • Using objective criteria to develop settlement options (for example, recognised authoritative research on a point, information made available by the Government, or the law).
  • Taking account of future needs and interests.
  • Creative problem-solving and brainstorming about possible options.
  • Looking at past successful options to inform the present situation.
  • Negotiating ways to deal with the last gap in advance of commencing a discussion or negotiation (such as referring to an expert or using random chance (for example, drawing options out of a hat or tossing a coin).
  • Working on ways we can improve how we make apologies and how we respond to apologies from other people.
  • Ensuring we disclose our interests and don’t keep them hidden.
  • Proactively ensuring we use effective communication strategies such as clarifying questioning, active listening and reframing (discussed in future posts).
  • Acknowledging and recognising our own needs, as well as the needs of other people.
  • Ensuring we proactively look to develop new and shared perceptions of a problem and of relationships.
  • Actively working to clarify and define the issues in dispute or contention.

Posts in coming days will continue to explore negotiation practice and theory a little more deeply.

Endnote: If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre.  You can see the schedule for courses coming up here – during COVID-19 lockdown all courses will be conducted online.

Tomorrow’s Blog: Learning from the art of mediation – understanding more about effective negotiations in lockdown

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 102-104. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Negotiation image 1: Daksya Learning

Iceberg image: Negotiation Experts

 

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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