Why Traditional Mediation Methods Do Not Work

Paving the Way for Skilled Mediation

In 2020 much of life in America, and across the globe, came to a screeching halt as the coronavirus spread, closing courthouses as well as schools and businesses alike. The closure of state and federal courthouses left many litigants in a state of perpetual fear and uncertainty. With their cases suspended in mid-air for the foreseeable future, litigants faced the reality that resolving their differences in Court was no longer a viable option.

Hence, the increase in alternative dispute resolution. Alternative Dispute Resolution (ADR) provides individuals with a multitude of ways to resolve their disputes without a trial. It can include mediation, arbitration, as well as formal and informal settlement conferences. The global rise of mediation as an effective mechanism for resolving complex disputes grew during the pandemic years and continues to grow still. As the overall aggregate settlement rate of mediation continues to grow, we find more and more litigants choosing the mediation route as opposed to the traditional court trial.

But not all mediations- and not all mediators- are created the same.

Traditional mediation today is often led by mediators who are not formally trained in the art of negotiation. As a result, their version of “mediating” is simply “splitting the pie”, often leaving both parties dissatisfied. These mediators choose to mediate upon the belief that all available answers appear to lie along a straight line between the parties’ respective positions. Often the only “creative thinking” they exhibit is to suggest splitting the difference.

Inventing options does not come naturally. Well-trained mediators educated in professional negotiation strategies understand that inventing options is the foundation for a successful mediation. Negotiation as an academic field has grown dramatically in the last ten years. Ten years ago, very few professional schools offered courses on negotiation, now they are commonplace. Traditional mediation methods often leave clients feeling exploited and bitter. However, the new approach to mediation is one of learning principled negotiation skills. The method of principled negotiation was developed at the Harvard Negotiation Project and has been used to decide issues on the merits rather than through a haggling process focused on what each side says it will and won’t do.¹ A skilled mediator who engages in principled negotiations will lead the mediation by identifying and engaging in four straightforward points to define the negotiation:

1. Separate the people from the problem.
2. Focus on the interests and not the positions of the parties.
3. Invent multiple options for mutual gains before deciding what to do.
4. Insist that the results be based on some objective standard.²

Mediation is truly a skill that must be taught and learned just as any other professional skill would be. There are many common mistakes made by traditional mediators in their negotiations that would be entirely avoidable if the mediation process were to be seen as one that requires skilled learning. For instance, one common mistake in mediation we often see is a party making the first offer when they are not in a strong position to do so. Another common mistake is making a first offer that is not sufficiently aggressive or making greater concessions than the other party did. A skilled mediator will help you assess and consider all plausible alterative options you might pursue if you are unable to reach an agreement with the other party. By estimating the value associated with each alternative, you can then select the best alternative- which in mediation we refer to as your BATNA- The Best Alternative to Negotiated Agreement.³ Without a clear understanding of your BATNA, it is impossible to know when to make an offer, when to accept a final offer and when to walk away.

Equally as important as your BATNA, is considering what we refer to in skilled mediation as your “Reservation Point” or your RV.⁴ Your RV will be your “walk away point in the current negotiation.” A skilled mediator will assist you in identifying the lowest offer you would be willing to accept. A careful and thorough assessment of your BATNA is essential to determine your reservation value. Having identified your BATNA and your RV, a skilled mediator can now assess for you what we refer to in mediation as the “zone of possible agreement” or the ZOPA.⁵ The ZOPA encompasses all possible deals that would be acceptable to both Parties. A skilled mediator will search for mutual gains within the zone of possible agreement.

In sum, a skilled mediator will assist the Parties in inventing new solutions to traditional problems. While traditional mediators generally assume that differences between two parties create the problem, skilled mediators see that those differences lead to solutions. Agreement is often based on disagreement and a skilled mediator knows that creative agreements reflect this principle of reaching agreements through differences.⁶

¹ APA. Fisher, R., Ury, W., & Patton, B. (2006). Getting to yes (2nd ed.). Penguin Putnam. Page xxviii

² Id at page 11