Mediation: Producing better outcomes [Part 1]

I think the time for discussing how we can produce better outcomes in mediation is long overdue. Or if its not, it’s a conversation that has passed me – and I suspect many others – by.

When was the last time you asked yourself how you might have been able to contribute to producing a better outcome? Or discussed this with a colleague after a mediation has failed to produce a settlement? Do you normally see the lack of an outcome as the result of the other side’s inability to see reason and negotiate sensibly or, perhaps, the mediators lack of ability or lack of inclination?

Don’t get me wrong – it ‘takes two to tango’ and mediators can certainly have bad days…but it is very easy to fall into the trap of seeing everyone’s failure but your own.

Let’s start with some context. By “better outcomes” I mean more settlements and settlements more readily seen by the parties as objectively fair. Logically, every participant wants a settlement so long as they see it a subjectively fair (meaning, fair to them). Therein lies a problem. No settlement is likely so long as all parties negotiate from a perspective that ignores the needs of other participants.

Its at about this point that I can hear some of you saying ‘I only ever focus on what my (or my client’s) needs are and I often achieve settlements’. Ofcourse, what you are telling me is that position bargaining can work. I agree. But if you want to position bargain you don’t need a mediator (except perhaps to reframe things from time to time to help the dialogue continue) and you are not really grappling with the critical question which is whether position bargaining is the best available choice – either at all, or in the context of a mediation.

Most of us position bargain by default; there’s a horse trader in us all. So far as I can judge, most clients and their legal advisors have undertaken no special training or education in negotiation. Everyone has learned on the job, imitated others and thought the process sufficiently simple to continue in the same vein without any real reflection.

For more than 35 years of legal practice, I thought about negotiation in this very same way. I formed a judgment about prospects that informed a settlement range and I advised clients to bargain hard to secure results (if possible) within that range.

So, here’s the challenge: think about your last mediation. What prior thought did you give to what you (as a client or legal advisor) would need to do to achieve a settlement (or did you only reflect on what you or your client wanted)? If you did give some prior thought, were the things you contemplated doing done – if so, were they sufficient for the purpose of achieving settlement – if not, why not – if they were not done, what was the reason? To what extent was your plan for the mediation informed by any education (including reading) about negotiation? Are you really so sure that the fault lay only at the feet of your opponent/s or the mediator? What might you have done differently?

Next time: Understanding and explaining the process of mediation…