dispute resolution

COMPROMISE

A key word in any mediation is “compromise”. It’s one of the main keys to successful mediation and one of the hardest to achieve.

Each party to a mediation has a history. They could have been hurt by harsh words or the unreasonable behaviour on another. They could be “stonewallers” who find the word abhorrent and cannot compromise in any situation. They could feel that they have been subject to unjust treatment.

Whatever the starting point, the mediator is always trying to find some room for manoeuvre; trying to find some space within which s/he can operate. This never comes by asking straight questions, as they will tend to provide negative responses and can entrench positions.

So, how can you find the room you need when the position of each party is so firmly held that they can’t help themselves? 

Every mediation is different. Each set of parties comes with its own views about why they are with you and their own wishes for the outcome. It is essential, at first, to understand each party and where they are coming from.  In a typical mediation, the first few face to face chats, are intended to get to know that person and how they work. To find out a little about their character and how best to approach difficult issues with them. Each party to a mediation is there voluntarily, so you start with the advantage that, even if they have attended reluctantly, they must see the possibility of a settlement. Even if they think the chances are miniscule, the fact that they think that there may be a solution, is where the hope lies.

A typical “stonewaller” will refuse to move and that will become clear after one or two conversations. If the mediator cannot see any movement, then the only reason they are there is to have the other party concede everything. That may be possible and so the issue may be capable of resolution. In this case, the mediator will use a change of wording or a change of emphasis, to allow parties to accept a situation. The changes may be subtle, but the mediator will always look for them. It is still possible to conclude a successful mediation, even with the most entrenched party.

Typically, most parties don’t want to fight, most will move their positions and the last thing they want is a long drawn out and expensive legal battle. These are the elements that all mediators use to get their parties to find the compromise that is, usually needed, to get the job done. Frequently, the compromises are obvious, especially when you can hear both sides of an argument and, by listening, the mediator should get to see what they are and, can then make suggestions.

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