Many people perceive mediation as a process where one person demands 20 and the second person offers 10, so they split the difference and settle for 15. Author Chris Voss writes in his excellent book “Never Split the Difference” that you should never split the difference. (Maybe that’s where the title came from.) He tells a great story to highlight this point. In the story, a husband and wife are going out for the evening. The wife wants the husband to wear black shoes and a husband wants to wear brown shoes. So, what do they do? They compromise and they meet halfway. He wears one brown shoe and one black shoe. They split the difference, which is the worst possible outcome. Splitting the difference may sometimes be the best outcome, but in many situations, skilled mediators must help parties to recognize their underlying feelings and beliefs about the conflict before they can get to a place where they are receptive to a resolution, and possibly split the difference.
Mediation is an informal way for parties to discuss a disagreement and hopefully reach a resolution that is agreeable to both sides. Mediation is less formal than court but more formal than an argument at the office. Mediators help parties to vent and speak their mind, while also keeping the parties focused on the issue at hand rather than turning the discussion into a mud-slinging, free-for-all. To quote Harold Coleman “Be tough on the problem, not on each other”. The issue is to stay focused on the problem. Be hard on the problem. Work the problem. Mediators spend a lot of time in gathering information about the parties, their concerns and what they would like to see happen in the mediation. The try to answer the question “What is the emotion behind the objection?”
Transformative mediation can work for most types of cases. I have been asked whether transformative mediation can work for personal injury lawsuits. The answer is yes. From the plaintiff’s perspective, not all insurance adjusters are out to get you. From the insurance
company perspective, not every plaintiff is a greedy fraud.
I do much of my work in the arbitration of medical claims. When I mediate medical claims, I speak to claims adjusters and we sometimes discuss the types of claims being submitted. We discuss how not all insurance claims are fraudulent. From the claimant’s perspective, we discuss how it’s the insurance company’s job to pay only valid claims and that sometimes adjusters will question claims that have been submitted. The purpose of transformative mediation, in these types of cases, is to get both sides to a position where they are receptive to resolving the cases and to see the issue from the perspective of the other side. Certain cases must be tried and must go to an arbitration decision. That will always be the case. However, the vast majority of the claims are valid can be resolved through mediation and the parties can be placed in a better position to discuss these types of claims in the future.
It has often been said that the parties to the dispute are usually in the best position to resolve the dispute. The job of the mediator is to understand the party positions and to delve into what is really blocking them from communicating. They are with you because they have reached an impasse. Why are they stuck? Where did they get stuck along the way? Is there anything that they agree on, something upon which they can build. Several factors come into play. What are the emotions behind the objections? How can we understand these emotions so that we can get the parties to a point where they are in a state where they can communicate?
Another aspect of transformative mediation is to understand how the relationship of the parties will look after the mediation is over. When this mediation is over, will the parties have to interact on a daily basis? What will that look like? What issues will they encounter as they move forward? Before the mediation concludes I like to discuss those issues that can be anticipated. I ask the parties if we can we discuss those issues now. Can we put a system in place to deal with those anticipated issues? We then have a framework in place to deal with unanticipated issues. If things go wrong, and they can and sometimes will, what steps do we take? We don’t want the entire agreement to blow up the first time something goes wrong. I ask the parties if we can agree to a process to deal with unanticipated challenges, when or if they arise.
In the breakup of a small business, we discuss a division of profits and receivables. Are the parties able to agree on where the clients will go? What happens if a client starts out in the new business with Person A and then wants to switch to Person B? How can we handle that now, so that there is one less thing causing animosity in the future? Can we get the parties to agree that there will be non-disparagement, so that both parties have a chance to build thriving businesses? Is there a way for both sides to be supportive of each other? The more we can anticipate, the more we can resolve before these issues even arise. And it’s not just about the resolution, it’s about the relationship going forward.
If the parties do want to have an ongoing relationship, or in certain familial relationships where they need to have an ongoing relationship, how can we look at those relationships so that they are productive and positive rather than a constant source of angst.
There are many types of mediators and many types of mediations with many different issues, and in most of those mediations, you really can’t split the difference.