The American Arbitration Association reports that over 85% of all mediations result in a settlement. This is true even where all prior attempts at resolving the dispute have failed and where the parties are pessimistic about the prospects of a resolution. So why does mediation work when the parties have been unable to settle the dispute themselves? Here's six ways:
People in the middle of a battle often don't feel free to speak their minds in the presence of the other, either because they are intimidated (power imbalance) or they are typically interrupted by the other party. A mediator ensures that each party gets to speak without interruption or intimidation. In this context, the mediator acts as a "referee" and can control and direct the conversation if necessary. Having a neutral third-party present for the discussion can give someone a voice who hasn’t felt heard before. In some cases, where the mediator feels one or more parties doesn’t feel safe to speak their mind, he may request to speak with each party individually outside the presence of the other party. This can be an effective way of making each party feel like they are truly being heard. This caucus technique can really free up the conversation and make negotiations much more productive.
Fostering Productive Conversation
Typically, when two or more people have been in conflict for an extended period of time, their history and expectations create a vicious cycle of anger and resentment. They become reactive. This prevents each party from truly hearing the other. This happens in all kinds of relationships, from couples to business partners to friends and family. The role of the mediator in this dynamic is to keep everyone focused on the actual issue in dispute, focusing on resolving it as opposed to falling backward into who did what to whom, and who’s at fault. It is extremely difficult and often impossible for those who have a history of heated or deep-seated conflict to find resolution. No matter how much one is certain the other is to blame, there is no value in rehashing old differences when the focus is on a resolution.
Addresses the Needs and Interests of Both Parties
Personal attempts at resolving disputes can fail because people tend to hold a certain position: either not wanting the other side to have their way, or being unable to see how any other option would be in their best interest. This, again, is rooted in their shared history. The parties aren’t able to see another option because their emotional needs are not being met. For example, when one feels they have been hurt by the other and they feel like their pain or suffering has never been acknowledged, they may refuse to settle, but what they really want is an acknowledgment from the other party of what they did, and/or a sincere apology. I have seen an apology open doors to communication and mutual consideration where there was seemingly little hope of progress. Another example is when each party is holding firm to an offer they have made to the other in a contract dispute. After the mediator helps illuminate each party's justification for their positions, the parties are able to see each other’s perspective and adjust their positions. In custody or elder care disputes, the mediator would keep the conversation focused on the best interests of a third party who may not be present.
One of the most significant obstacles to bringing a third party (mediator/court of law / administrative hearing) into a conflict is the fear on both sides of sharing or voicing personal or private information. Nobody wants to be judged for holding a certain position or expressing their true emotions around an issue. The beauty of mediation is that mediators are bound by confidentiality. This means they are not allowed to share anything that is said or done in mediation with someone who is not a party to the mediation. The only exceptions to this are if there are any statements or actions by the parties that could give rise to criminal sanctions. Examples would be legitimate allegations of assault and battery or child or elder abuse. In these cases, the mediator is required to notify the appropriate authorities.
When parties in a dispute realize whatever information they share in the mediation will not leave the room, they are more willing to speak their mind and explore options they were previously unwilling to explore.
Another aspect of mediation that people may be unaware of or forget is that the process is completely voluntary. This means that neither party will be asked to agree to anything they don’t want to. Conversely, if the dispute is decided by a judge or arbitrator, the parties are bound by whatever decision that third party makes for them. Similarly, if a judge or arbitrator is making the decision, typically there is a winner and a loser. Conversely, the purpose of mediation is to see that both sides get at least some of what they want. Any compromise is up to the parties. It’s a true win-win!
When those in the middle of a conflict feel they are finally being heard and their needs and interests are being met, they are able to let go of some of the tension and animosity towards the other party. This has the potential of improving the relationship moving forward, whether it be personal or business. This could be the best incentive of all to consider mediation.
The bottom line is mediation is a viable alternative to resolving conflict that works a vast majority of the time and can save you a hell of a lot of time, energy and money.