By Deborah Hopkins

Mediation is an interesting thing. Most disputes resolve without litigation, but for some reason we don’t seem to talk as much about that as we do about the cases that get to hearing or the courts. Obviously, the cases that go to litigation also provide us with our case law so we would be remiss if we didn’t spend a lot of time and energy teaching that stuff.

But, we want to make sure we spend some time talking about other methods of dispute resolution. I recently attended mediation for a private sector employment dispute. While a few of the details were different than what a federal sector employment law dispute would cover, the general formula is the same.

The mediator was a former circuit court judge in Virginia, and he has been an attorney for 49 years. Can you imagine that? What a long time to be an attorney! In his opening script he stated that he believes the objective of finding a “mutually agreeable resolution” is a misstatement, and that the better way to look at things would be to aim for a “mutually disagreeable resolution” since neither party was going to get exactly what it wanted. He also explained that his success rate was a whopping 97%. Little did the parties (or at least, one of the parties) know that this mediation would fall into the remaining 3%.

Why did the mediation fail, you might ask? Well, it’s because one of the parties arrived that morning completely unwilling to budge from its position. The outcome: after seven hours, the only people who benefited were the attorneys (who got paid) and the mediator (who got paid). Neither side was anywhere closer to a resolution because one party refused to consider anything less than what he wanted from the beginning. He was so stuck on his position (being “right’) that the mediation proved to be a complete waste of time. [Editor’s Note: Some agencies exacerbate this problem by mandating that line supervisors are required to participate in the mediation of discrimination complaints. As Deb well points out, it is a waste of everybody’s time and money when one side or the other has no intention to compromise. Mediation should be voluntary on the part of all parties. If it is not, then it is not going to work.]

There are two primary types of negotiation: position-based and interest-based. Let’s a take a quick look at each:

Position-Based Negotiation (PBN)

This type of negotiation focuses on the stances taken on each side of the dispute. Each party takes a position, and then spends its time arguing from that position. Throughout the process, each side makes concessions until an agreement is finally reached. Benefits to taking this approach include clarity of standpoint, strong anchoring during stressful negotiations, and clear, defined roles of the parties.

But, there are some major downsides to classic PBN:

  • Any final agreement may not be very wise; it may instead be a product of the interactions of the negotiators rather than the logic of the arguments pro and con whatever is being negotiated.
  • The more the parties argue position, the more they become committed to the position, thus impacting flexibility and open-mindedness to alternative resolutions. (The more attention is paid to position, the less attention is paid to underlying concerns. This = bad news.)
  • PBN can be inefficient. Because they know they’ll likely end up meeting somewhere in the middle after making a series of small concessions, parties in these cases are tempted to start off with extreme positions.
  • It strains relationships. Often involving a contest of wills, in PBN one side generally wins, which means the other side loses. Being nice is not a good answer to this problem, because then the goal switches from reaching a wise agreement to just reaching any agreement. Plus, it’s rare that both sides act nicely, so the nice people generally get taken advantage of in these scenarios.

Position-based negotiation has its place, for sure, but is not always the best approach.

Interest-Based Negotiation (IBN or IBB)

This type of negotiation approach is drastically different because the parties separate the people and relationships involved from the problems that are in contention. Rather than present a position on why they should prevail, the parties instead discuss their interests and what is important to them. IBN is based on assumptions of mutual gain and is designed to generate high-quality solutions while enhancing relationships. Sound like a pipe dream? Well, believe it or not, it sometimes works.

Interest-based negotiators provide a variety of resolution options before the parties decide what to do, and generally set timelines to promote efficiency. Strengths in the IBN process include greater confidence and self-esteem, more control, and influence over strategic decisions.

IBN is not perfect, though. Sometimes the partnership process can be slow. Other times, IBN’s use is limited to softball issues and not major points of dispute. For example, parties have encountered problems dealing with contentious issues – such as the types of issues normally handled through adversarial bargaining – and management and the union sometimes have divergent views of how negotiations should work. When considering this approach, then, it makes sense to think about the issues to be addressed, the parties concerned, and their relationships.

One of the primary requirements for a successful mediation is for each party to come with an open mind. If either party is uncooperative, then it’s a waste of time for everyone – not to mention expensive. Productive negotiations during mediation have a few similarities:

  • They result in a wise agreement
  • They are efficient
  • They do not damage the relationship between the parties (and in some cases, they improve it)
  • They focus on the future, not the past

The mediation I attended was derailed by one party that would not abandon its position. A learning experience, to be sure. I’ll likely attend the upcoming trial, so stay tuned for my observations on that! Hopkins@FELTG.com

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