Don’t Settle. Mediate.

Some people wonder why they should mediate a dispute.  After all, they think, we’re smart enough, we know the issues.  We know how to negotiate.  Or, maybe: we’ve got lawyers, and certainly lawyers know how to negotiate.  Why is mediation any better than plain old negotiation and settlement?

Let’s start at the … end.  What do the parties want to have accomplished when they’re done?  In traditional bargaining and settlement, each party starts from the idea of maximizing his own position.  Each party wants the outcome to leave the two sides as far apart as possible.  The instinctive attitudes are that I’ll hope to offer less and less and you’ll hope to demand more and more.  Those mindsets naturally take you down a track where the rails separate as you move forward.  There would be a derailment very quickly, so both sides have to act counter to their own attitudes.  They have to “give up” something; they have to “compromise” so they can shrug their shoulders, swallow hard, bite the bullet and “settle” for something they really don’t like, but which they have to accept.  In traditional negotiation, each side feels constantly pressed to concede, to lose, to act against his or her own position.

In mediation, the hope at the beginning of the process is expressed as a very different end or goal.  The parties undertake mediation — with the help of the neutral third party, the mediator who has no stake in the outcome — in order to mutually find solutions to their disputes that satisfy both parties’ interests.  The parties, together, express and consider their own and the other side’s underlying needs and concerns.  The parties, together, try to state the core of the disputes they face.  Subtly, Party A’s problem is no longer Party B, and Party B’s problem is no longer Party A.  Instead, as the mediation unfolds, A and B together define one set of problems that they share.  Now, their creativity is not focused on beating each other up to get the best for themselves.  Rather, they focus, together, on finding solutions that actually address both their needs, workably resolving a particular set of problems that they have newly managed to articulate and corral.

If there’s that different attitude and goal-setting when the parties enter into mediation, how does that change things during the negotiations?  For one, it is no longer true that every win for me has to be a loss for you.  There are results that can benefit both of us.  There’s the famous story of two sisters in the kitchen, each wanting the one orange.  Half an orange isn’t enough for either, so the position of each sister is that she needs the whole thing.  They decide they have to “compromise” and “settle” and cut the orange in two, benefiting no one.  At the last moment, Kate explains that she needs all the pulp for her cake, while Sue explains that she needs all the zest for her sauce.  By expressing their interest in the different parts of the orange, rather than their position that they needed all of it, both sisters were both able to satisfy their goals and got everything they needed from the orange.

Mediation is increasing popular for divorce and family disputes, in New York City, New York State and around the United States.  Money can certainly be a source of great friction in divorce, but divorce is an obvious area where there can be varied, wide and deep sources of strain, conflict and disagreement.  On the other hand, the parties have a history with each other, some of it probably good.  They were, let’s hope, once in love and they put a lot of stake in their relationship.  They are likely to be dealing with each other into the future, certainly if they have children.  In traditional divorces, the negotiations are in the familiar mold: one wants to pay the least and the other wants to receive the most; each wants to come as close as possible to his or her own desired time with the kids, etc.  Any benefit to one comes at a cost to the other.  More diverging rails.

Mediation handles those disputes differently.  For example, if each spouse says that he or she wants as much time with the kids as possible, that’s their positions.  In standard “settlement negotiations,” the discussion tends to become horse-trading.  “OK,” says Mom.  “I’ll give you another week night, but in that case, I get to choose the summer camp.”  Much of that instinct comes from a deep human feeling that if I give something up, it’s only fair that I get something else back.  Often when we see that haggling, though, those parents have lost sight of what really matters to their kids and even what is truly important to him or her.  Good family and divorce lawyers can go some way in helping their clients stay real, but in the gunslinger negotiating room, spouses are conditioned to expect to fight.  In mediation, the spouses are conditioned to work together.  The kids’ and parents’ schedules get tacked to the wall and actually become relevant.  In talking about it, Mom may realize that if Dad has the kids one extra weeknight, it allows her more flexibility to do what she wants and needs to do.  The conversation about who chooses a camp can lead to the discussion of what they want their kids’ summers to be like and how much they can afford to spend on summer activities.  And so on.

Anyone want some bullet points on Settlement vs. Mediation?  Here you go:

Settlement is to Mediation as…:

Win and lose is to Solve;

Positions are to Interests;

Fight is to Collaborate;

“My Problem is you” is to “Our problem is out there”;

Zero-sum is to Create;

“I” is to “We”.