Reflect for a moment on the question of whether it would be valuable to the owner of a business (and to the ‘bottom line’ of that business), to have an alternative means of resolving consumer, business and legal disputes in a manner that is less time consuming then the court system, and/or, less costly then the retention of legal counsel. Would having a conflict resolution process that is quick, time/cost effective, and controlled by the disputing parties, valuable? I hope you would agree that the answer is, yes. Engaging in business is engaging in countless interpersonal relationships. And throughout the course of a relationship, no matter how large or small, conflict is natural and will arise between employees; management and employees; management and suppliers/vendors; management and customers; owner and their competitors; business co-owners and/or investors. Conflict is almost unavoidable and the only means of protection is to have a plan of action for when there is conflict. And that plan of action should be able to address the various levels of business relationships. An alternative dispute resolution process that can assist businesses deal with the inevitable conflict, while positively transforming turbulent relationships between parties is mediation. Also, within a business, an internal mediation process can also be used to increase productivity and good will throughout a business culture, should there be levels of discourse that permeates throughout that business.
Mediation – A resource for discourse.
Often, people in business conflicts will first attempt to directly discuss and negotiate with the person or entity representative they are having a dispute with. This can work, and is the best means of resolution when the parties are able to communicate effectively. Unfortunately, a number of obstacles to effective communication are often present. These obstacles include lack of trust; widely different perceptions of what is fair, ethical or just; personality conflicts/clashes; inequality of negotiating acumen; and a failure on one or both sides to appreciate fundamental interests. When any of these obstacles are present the available options are often thought to be either legal action, or the unhappy acceptance of the unresolved conflict. An alternative option and far better process exists, mediation.
So what is mediation? Mediation is when disputing parties agree to use an unbiased third party trained neutral (the Mediator) to assist them reach their own resolution. The mediator will not, and cannot, force the parties to do anything other than respect the process of mediation and to encourage they try to resolve their issues. The mediator sets the stage for resolution and is a neutral person engaged to facilitate better communication efforts so a problem can be resolved. When neutral facilitation is allowed to work, issues and perspectives can become clearer, communication becomes more effective and positive which usually leads to a resolution that the disputants have reached themselves.
“Win-Win” versus “Cutting the Pie”
We all know or think we know the meaning of the phrase “win-win”, but parties in a dispute seldom think it applies to them; that it could be possible given the unreasonableness of the “other person” who is of course, wrong. Consider for a moment, how most of us have traditionally thought about disputes. Usually there is an economic component and each party, convinced that he is right and entitled to quantity “X” is sure in his own mind that there is a pie on the table that must be cut just so that he gets “X”, because if he doesn’t get “X” a terrible injustice will have been done. It always follows, of course, that if one party gets “X”, the other party has to be satisfied with “Y”, which is merely what is left of the pie (almost always a much smaller piece).
One of the things a mediator does, however, is to invite the parties to reexamine the idea that there is merely a pie to be divided, as opposed to a huge world full of opportunities in which agreement might accomplish far more than just that finite slice of a limited quantity. When intelligent men and women begin to put their minds together, instead of just butting their heads, amazing things can happen and a little pie can be transformed into something entirely different, maybe a big pie, or even something resembling a growing tree with a variety of profitable branches.
While not all mediations succeed, the vast majority do in fact end more positively than realized. There is an opportunity here, and taking advantage of that opportunity is what good business people do. “Win-win” is not a cliché, it is a reality, a solution created by people who are themselves creative, or helped to be so through neutral-facilitated communication, i.e., mediation.
What are some other advantages of mediation?
Winston Churchill said: “Where you stand, depends on where you sit.” When people find themselves in a conflict, especially if they are angry about what the other person said, or did, or intends to do, they go into a state of “selective perception in making evaluations”. There is probably not a human alive who does not have this tendency in a serious dispute, and most of us succumb to it even in disputes that are trivial. He marshal’s his weapons, he polishes them, he reviews his battle plan, and he intensifies his convictions of his righteous cause. Busily focused upon his own point of view, from “where he sits”, he has no time to examine the other side’s arguments or concerns. No successful salesman who wants to make a deal, would practice such an approach to overcoming resistance for he knows that it is more likely to intensify that resistance.
Mediation provides, not only a “time out” from all this saber sharpening and pistol polishing, but it insists upon a more than token listening to the opposing side. A mediator will not prevent you from exhibiting your strengths and best arguments, for those are what your opposition needs to consider in arriving at a solution. But, the mediator will challenge and encourage you to take the additional useful and often critical step of carefully listening to the opposing arguments and discussing them in a dispassionate and respectful way.
Think of it this way. You want to persuade the other person to your point of view; to accept the resolution or something close to it that you propose. As every salesman knows, the other party will be more willing to listen to you if he feels that you have listened to him, that you have respected his viewpoint; that you understand and care about his needs or his specific interests. When one shows such respect and caring attitude there is typically a positive reciprocal response. This is the heart of effective communication. It is not a giving away or a showing of weakness. Quite the contrary…. One who conducts a negotiation in this manner actually shows fearlessness plus an earnest motivation toward reaching agreement.
A psychologist’s term, “reactive devaluation”, refers to a common problem in negotiation. When a party makes a suggestion for a resolution, there is a tendency on the other side of the table toward a devaluing reaction, i.e., to think that if the other side is proposing it, it must be better for them than it is for us. A feature of human nature, studies tell us, is that we tend (and it is a tendency not a constant) to take less than the best in order to avoid allowing our opposition to profit more than us. A proposed resolution that achieves a good outcome for a party will often be rejected by that party out of a perception that it benefits the other party more. This fits with other research findings that people tend to consider “fairness” to be synonymous with “equality”. Therefore, for many, if the two sides do not appear to benefit to precisely equal degrees, then the deal is not precisely fair. From a neutral position the mediator is able to help each side make a more rational, i.e., less visceral assessment of the settlement options and avoids unproductive and self defeating decisions.
Conclusion
The complexities and vagaries of conflict in our supercharged and complex world are largely the result of ineffective communication, a problem with which mediation is superbly equipped to deal. Helping to clear the clutter of those humanly natural traits and tendencies that get in the way of rational thinking and effective communication is what mediators are trained to do. The businessperson with a disruptive conflict that seems unlikely to yield to direct discussion and negotiation has a next best choice in mediation. Once an agreement is obtained between the parties to cooperate in mediation, the “process” takes over and with relatively minor cost it is highly likely that resolution will be achieved to the satisfaction of the parties and to the profit of the business person(s) engaged in the process. Mediation works in a variety of industries, and complex business transactions would benefit from using it as an alternative to litigation.
