Conference on Mediation

March 29, 1996, Geneva, Switzerland

The Dynamic of Mediation: Is Creative Genius the Key to Successful Mediation?
by Stephen B. Goldberg
President, Mediation Research & Education Project, Inc.,
Northwestern University School of Law
(Chicago, United States of America)

According to a recent American research study, approximately 75% of those business disputes which go to mediation are finally resolved as a result of that mediation (1). This finding, which is consistent with the views of most knowledgeable observers, is really most remarkable when one realizes that parties typically do not go to mediation unless they are at impasse. They will have negotiated among themselves for some time in an effort to resolve their dispute, and only after having been unable to do so will they be willing to bring in an outsider. Under these circumstances, resolving three out of four mediated disputes is quite impressive. It is even more impressive when one realizes that the mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.

What is the reason why mediation has achieved such success in resolving U.S. business disputes? One possible answer to that question is that American business mediators are highly skilled in the art of bringing about settlement, perhaps even settlement geniuses.

I reject that explanation. Other studies have found essentially the same success rate in mediations that take place in many different subject matter areas, and in mediation programs that handle hundreds of labor, family and neighborhood disputes per year (2). There are not enough geniuses to be responsible for that type of widespread success.

Another possible explanation for the success of mediation is that the mediator has many tools at his or her disposition to move the parties from impasse to agreement. For example, the mediator may:

• Encourage the exchange of information
• Provide new information
• Help the parties to understand each others’ views
• Let them know that their concerns are understood
• Promote a productive level of emotional expression
• Deal with differences in perceptions and interests between negotiators and constituents (including lawyer and client)
• Help negotiators realistically assess alternatives to settlement
• Encourage flexibility
• Shift the focus from the past to the future
• Stimulate the parties to suggest creative settlements
• Learn about those interests that the parties are reluctant to disclose to each other
• Invent solutions that meet the fundamental interests of all parties

While these techniques surely aid the mediator in assisting the parties to reach resolution, I believe that they fail to capture the core reasons for the success of mediation. For example, it is easy to say that the mediator should "invent solutions that meet the fundamental interests of all parties," but how does the mediator do so? After all, the parties will have been involved in their dispute for some time, and will fully understand the business context in which the dispute arose, yet they will have been unable to "invent a solution that meets the fundamental interests of all parties." Why should the mediator, who typically enters the dispute with little or no advance knowledge of the facts or issues, be able to do so?

To be sure, the mediator may also understand the business context of the dispute and may have a perspective that the parties lack. I think that does account for some of the success of mediation, but it also comes perilously close to the "genius" theory of mediation success. As you think about the area in which you do business or practice law, ask yourselves how many people there are who you know, and whom you could call upon to invent solutions that meet your fundamental interests, and the interests of all the other parties to a dispute, and that you and the other parties could not have come up with on their own. There may be a few, but I would be surprised if there are enough to deal with hundreds, if not thousands of disputes. Yet it is in dealing with that volume of disputes that the 75% success rate that I referred to has been achieved.

It is my judgment that while some of the success of mediation lies in the many different tools at the mediator’s disposal, and some lies with the creative genius of a small number of mediators, the ultimate reason for mediation’s success lies in the dynamic of the mediation process.

Initially, by the time the parties have reached impasse, and called in a mediator, they have typically ceased listening, in any meaningful sense to what each other is saying. The strain, and often bruised emotions engendered by a failure to reach agreement, will have seriously impaired communication. The mediator, however, a new player on the scene, must be educated about the facts and issues in controversy. This forces the parties to communicate and sometimes forces them to explain their dispute in a matter which is understandable by a newcomer, often in simpler, less technical terms then they have been using among themselves. This may often be true in an intellectual property dispute, and is certainly true when the mediator is not an expert in the subject matter of the dispute.

The very process of re-phrasing the matters in dispute and responding to the questions of a newcomer to the dispute re-opens communications and may lead the parties to develop new perspectives that will lead to settlement. For example, I recall one dispute in which, after I had finished asking a series of questions to help me to understand the substance of the dispute, why the parties were in disagreement, and precisely what they wanted from each other, the defendant suddenly called for a recess. On returning to the conference room, counsel for the defendant said that until his clients heard the plaintiff responding to my quite uninformed questions, they had not realized how little would be required to satisfy the plaintiff. Defendant’s counsel then said, "If that’s all plaintiff really needs, we’ll be happy to do it."

While occasionally no more is required for dispute resolution than the introduction of a mediator or other outsider who will force the parties to alter their focus somewhat, that is by no means typical. More often, while the mediator’s questioning aids the mediator in understanding the matter, and gives the disputants some perspective, it is far from enough to bring about a resolution. In the great majority of disputes, after the mediator has become educated as a result of joint conferences with the parties, the mediator must then meet separately with the parties. In my judgment these separate sessions are typically at the core of a successful mediation.

As many of you are aware, a little book called, Getting to Yes, by Roger Fisher and Bill Ury, suggests, as one of the keys to successful negotiation that one should "separate the people from the problem". What Fisher and Ury mean by that is that one should not let one’s feelings towards the other negotiator distract one from the issue to be negotiated. Still, that is not a rule which is easily followed after many days, weeks, or even months of unsuccessful negotiation. Frustration can easily lead to a genuine belief in the other party’s stupidity or bad faith, and that belief, in turn, impedes both communication and successful resolution.

The separate meetings that many mediators use implement the Fisher and Ury suggestion, and improve communication by literally separating the people from the problem. Instead of being the same room as the adversary, a disputing party now finds itself dealing with a friendly, empathic mediator whose goal is to assist that party in reaching a satisfactory resolution. The change in emotional climate is striking, and often leads to great eagerness to communicate. The mediator who takes advantage of this eagerness to ask appropriate questions should be able to determine the underlying concerns or interests of each party, as well as how each party prioritizes those interests.

These are matters that one negotiator will rarely be willing to share with another, particularly in the context of a dispute. If you tell the other party how you prioritize your interests, and what you regard as most important, there is always the risk that the other party will take advantage of your openness to make you pay dearly for something that you care about very much and that it cares about very little. Suppose, for example, that we have one bowl of chocolate ice cream and two bowls of vanilla ice cream to share, and disagree about how to share them. In a spirit of openness, I tell you honestly that I much prefer chocolate to vanilla. You are indifferent to flavor, but you take advantage of my openness, and tell me that you, too, much prefer chocolate, and will only let me have the one bowl of chocolate in exchange for both bowls of vanilla. My openness has cost me dearly.

Recognizing that risk, many negotiators are reluctant to share their priorities, or other sensitive information, with the other negotiator, and that reluctance sometimes impedes settlement. The parties will, however, often share their interests and priorities, in private, with a trusted mediator, and their doing so may enable the mediator to obtain an agreement that the disputing parties could not obtain on their own. This does not necessarily occur because the mediator is more creative than the negotiators, or in any respect more skilled, but is primarily a function of the fact the mediator is in possession of more information, as a result of his/her position, than any of the negotiators. Possession of this greater knowledge will sometimes make it possible for the mediator to obtain an agreement that the parties could not reach on their own.

I could give you numerous examples of this, but one rather simple one should suffice to make my point.

Some years ago, I was asked by a judge to mediate a dispute involving alleged housing discrimination. According to the plaintiffs, an African-American couple, they had been refused the opportunity to rent an apartment because of their race. They testified that after a representative of the defendant housing management company had told them that there was no rental space available in a particular apartment building, they had contacted a private group that investigated complaints of housing discrimination. That group had sent a white couple to the apartment house, ostensibly for the purpose of renting an apartment, and the white couple had been told that there was space available. On that basis, a suit was brought for violation of U.S. laws prohibiting discrimination in housing.

At the time I became involved in this dispute, the plaintiffs were demanding $500,000 in damages and the defendant had been offered nothing by way of settlement. In meeting privately with the plaintiffs, I learned that the reason why they were demanding such substantial damages was not because they had been particularly harmed as a result of the alleged discrimination. In fact, they were very desirable tenants who had rented another apartment quite quickly. They were, however, concerned about others who might not be as well off as they, and wanted to teach the defendant company a lesson so that it would not again discriminate against African-American housing applicants. Thus, they wanted defendant to pay enough money to serve as a meaningful deterrent to future discrimination.

In meeting privately with defendant I learned that it had refused to offer anything in settlement because it feared that any settlement would be taken as admission of discrimination, and that such an admission would cost it dearly in both the rental housing market and its reputation in the community.

Armed with this understanding of the interests of each party, a solution was not difficult to find. The defendant housing management company agreed to make a substantial contribution to the group that investigated complaints of alleged housing discrimination. The plaintiffs saw this as providing that group with the resources necessary to protect others from discrimination by both this housing management company and others. The defendant company saw it as showing both its commitment to fair housing, and that it had nothing to fear from the increased scrutiny of its rental practices that would follow from making greater funds available to conduct such scrutiny.

Why didn’t the parties to this dispute develop, on their own, the solution that resulted from mediation? Initially, neither really understood the interests of the other. Each, as was typical in stalled negotiations, was not focusing on the concerns of the other, and how to satisfy those concerns, but only on getting its own concerns met. Further, each was reluctant to share its core concerns with the other. As a result, those concerns were not being met. The parties were arguing about the amount of money to be paid by the housing management company to the plaintiffs when that was not the core concern of the housing management company. Learning that, as I did made resolution fairly simple.

There was yet another barrier to settlement in that dispute and in many other disputes. Typically, advocacy has a chilling effect on creativity. The more entrenched one becomes in supporting one’s own position, the less one is capable of thinking creatively about mutually acceptable solutions. If I represent the claimant in a dispute, particularly when I think that the other side fails to recognize the strength of our arguments, so is either ignorant or in bad faith, I am likely to focus my energies either on persuading them that they are wrong, or on developing solutions that will give my clients what they want, not on what will give the other side what they want. Being in a position of representing one party to a dispute tends to inhibit the crafting of mutually acceptable solutions. Instead, one searches for solutions satisfactory to the party represented, solutions not often acceptable to the other party.

The mediator, however, who does not represent any party to the dispute, is not so hindered in making settlement proposals. The mediator can make whatever proposal he or she thinks might resolve the dispute, without fear that that proposal might be more advantageous to one party than the other. This is not a matter of being more creative than the negotiators, but simply of being in a position in which the representational or advocacy barrier to creativity does not exist.

Next, there is the phenomenon of what has been called "reactive devaluation" (3). It is not uncommon, particularly in a dispute, that any solution coming from the other side is treated with great suspicion, if not immediately rejected, because it came from the other side. Thus, another strength of mediation over unassisted negotiation, regardless of the ability of the negotiators, is that when the mediator does make a proposal, his or her neutral status encourages the parties to listen to that proposal with an open mind.

Finally, there is mediator creativity. Creativity is a very important mediation skill, and can be of great aid in bringing about successful dispute resolution. Unfortunately, as already pointed out, there are not enough highly creative people to make mediation successful as a widely utilized process across the disputing universe. There is, however, an alternative skill to genuine creativity, and that skill, which any mediator can develop, is listening. Intense listening, even without creativity, can aid in generating mutually acceptable resolutions.

Two examples might be useful:

• Jimmy Carter at Camp David

What did President Carter, a careful listener, propose as a solution to the dispute over the Israeli settlements in the Sinai?

• Labor-Management negotiations regarding the opening of foreign operations

What would you, as a careful listener propose as a solution?

In sum, I think that it is the dynamic of the mediation process, growing out of the disputants’ private meetings with the mediator, the mediator’s neutrality, and the possession of listening skills by the mediator, that explains the great success that mediation has had in resolving disputes. While this may be bad news for those mediators who would like to market the mystique of mediation and their creative ability to make mediation function, it is certainly good news for disputing parties who are contemplating mediation. It does not take a genius to get disputing parties to agree.

Notes

1. Jeanne M. Brett, Zoe I. Barsness and Stephen B. Goldberg, "ADR in the Private Sector," _ Negotiation Journal __ (forthcoming).

2. See, E.G. William L. Ury, Jeanne M. Brett and Stephen B. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (Program on Negotiation, Harvard Law School, 1993); Craig McEwen and Stuart Maiman, "Small Claims Courts in Maine: An Empirical Assessment," 33 Maine Law Review 237 (1981).

3. Robert Mnookin, "Why Negotiations Fail," 8 Ohio St. J. on Disp. Res. 235 (1993).

Discussion

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