As mediators we’re often told by lawyers that their clients have tried to negotiate business exec to business exec and that hasn’t worked and therefore the client feels that there’s no point in trying mediation. But, of course, we all know that the positional negotiation that may have taken place is a very different thing to facilitated negotiation where client needs and interests can be unravelled and a broader picture revealed. The results, in a high percentage of disputes, can be compromise and settlement but how can you convince clients to give mediation a go?
When should mediation take place?
Your client might feel that before going down the mediation route they need you to get all the facts sorted and decide on the strength of the case so you’re almost ready to go to litigation should settlement not be reached. However, it’s good for them to know that they can mediate at any time. It’s simply an opportunity for them to move away from the ‘who pays who what?’ conversation to a facilitated dialogue where wider issues can be discussed in a confidential space and without prejudice.
The longer they leave mediation, the longer the dispute cycle will go on and the higher the costs for your client. Wouldn’t they rather settle their dispute at mediation in a day – which often happens – rather than running up a year’s worth of legal fees? For clients, it can be particularly disappointing in lower-value cases where legal costs can very quickly outweigh the value of the claim.
Exploring the hidden costs of a dispute
Mediators can dig deep to uncover information that may not have any legal bearing but can play an important part in the client’s, or the other side’s, decision-making process. For example, at one mediation I started exploring the broader costs to one of the parties and he told me that his wife was bedridden with arthritis and that if he spent a year in litigation it would have a massive impact on her health. His revelation highlighted a personal need that had nothing to do with whether he was right or wrong or could win or lose but determined a level on which he could make a decision regarding settlement.
Even in purely commercial litigation cases there’s always some kind of non-financial cost to the parties to a dispute – a cost to their family life, their relationships, their mental health, their business. Mediation can unearth those hidden costs and help clarify what’s at stake for all the parties. And, even if settlement remains elusive, all parties will have gained a better understanding of the issues and what might be needed to reach agreement.
Understanding conflict escalation
Most disputes start out with a breakdown in communication and can quickly descend into all-out war. Friedrich Glasl, an Austrian conflict expert and recipient of the Sokrates Award for Mediation at Cologne’s Centre for Mediation, identified nine stages of conflict escalation that highlight how a conflict can go from a ‘win-win’ to a ‘lose-lose’ scenario.
As each stage progresses, parties becomes less empathetic and more combative towards each other. Discussion and debate is replaced by a need to gain control, save face and ultimately overpower the opposition. The longer a dispute continues, the more entrenched the parties – and their lawyers – become so that they are unable to see beyond their own perspective. And one thing that happens in all conflicts is that the other person gradually becomes dehumanised, leading to the final stage of conflict escalation – annihilation of the other side at any cost.
Mediation and humanising the client
Mediation can help to de-escalate a dispute. It’s a way for the parties to get back into the zone where a constructive conversation, even if it’s with a third party in the middle, becomes possible and viable.
I remember a construction mediation where two former colleagues had fallen out with each other and at the mediation they had their coats on ready to walk out. One party felt a very strong need to tell the other party how they felt and how the other party’s behaviour had impacted on them, their business and their family. Using the mediation process to manage the dialogue in a safe environment, the two parties ended the day in a wine bar discussing doing future business together.
In contrast, I did a recent mediation where one party hid behind their lawyer and didn’t actually participate and the other party attended but without their lawyer. It was a complete mismatch and they didn’t settle. If only they had come together to give their perspective and talk about how they felt then the gap may have been bridged.
Revealing the bigger picture
Mediation is an opportunity for clients to take control of their dispute. There’s a real sense of empowerment in being given the space to tell the other side their perspective, to explain the impact the dispute has had on them and to be acknowledged. It allows both sides to see the bigger picture and to understand the human side of their story.
A dispute isn’t always about the money. It’s often about what the money represents in terms of how badly your client feels or the injustice they believe has been thrust upon them. Where mediation moves the conversation beyond ‘who pays who what’, it can pave the way for more creative solutions and an exploration of other options a party can offer. For example, is there a possibility of future business or could one party give the other side something that’s of value, such as an apology?
Yes, mediation often means compromise. But without it your client could be heading for Glasl’s final stage of conflict escalation – annihilation of both sides and into the abyss together.