I recently responded to a request to chat with a city mayor to persuade her to support establishing a community mediation service in her city. She was not a supporter. When pressed, she said in her opinion there was skepticism on the part of so many that mediation works and that those who would benefit from it would even use it. She stressed how she felt that was the public’s opinion, not that of city officials. 

To what can we attribute those beliefs? I’ve given much thought to this and offer some personal opinions: 

1 – A desire for a certain closure.  Most people in conflict want it to end , which will happen in a trial or in an arbitration. And most of those people, I believe, want a decision made for them—many in the belief that any decision will obviously be in their favor because “they are in the right” or in the belief that “the law is on their side.” In mediation, there is no resolution unless the parties develop it themselves. That requires the parties to work together, and more often than not, means there will be compromises. Rarely does a mediation result in “winner takes all.” 

2 – An uncertain skill set. Most people believe themselves to be competent, if not skilled, advocates capable to staging strong arguments in behalf of their case. If fact, most people spend a great deal of time describing their conflicts to others in terms of how they are right and their counterpart is wrong. They’ve rarely given any thought to ways of reaching a solution that benefits both parties. When people discover that mediation will not be a stage to argue their case, but rather they’re expected to work together with an adversary to find a mutually acceptable solution, they question whether they have the skill-set to use that environment to reach such an outcome. 

3 – Unwilling to give up any power. I’ve met with any number of people who have been offered mediation who reject it simply because they don’t want to meet in a cooperative environment with their counterpart. They say, “We’ll meet in the courtroom.” It’s almost as if they fear meeting with their counterpart across the table.

 I think, then, the mayor was saying she believes the public doesn’t see mediation as a way to achieve the resolution they desire. Advocates of mediation, such as myself, stress the benefits to the relationship that mediation offers.

It may simply be that we are stressing a benefit that in the heat of a conflict is desired by the parties.

We may need to say up front that mediation is a fast and inexpensive way to resolve conflicts that also offers other long-lasting benefits.

In 1981, the book Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury, popularized the concept of principled negotiation. Principled negotiation requires that the parties involved develop a level of mutual trust, understanding and agree to cooperative principled negotiation. Only with mutual trust are negotiating parties willing to share information and forgo distributive bargaining tactics. 

Two of the defining aspects of principled negotiation focus on interests rather than positions and inventing options for mutual gain. Perhaps the major point of principled negotiation is understanding and addressing the interests parties hold that led them to the positions they take during negotiation. Fisher and Ury contend that parties should discuss their interests without debate over validity to arrive at options that satisfy their respective interests. Parties must be willing to share relevant information critical for effective solutions.

Many mediators encourage participants in mediation to utilize the principles of interest-based bargaining.

Justine Kirby writing in the Otago Law Review argued that principled negotiation simply does not recognize the Negotiator’s Dilemma, that is, principled negotiation promotes being more open, co-operative and seeking to meet the other parties’ needs. All behavioral characteristics more likely to be found in women who are then disadvantaged by “adherence to principled negotiation’s one-sided approach, which ignores the reality the hard decisions that must be made during negotiations.” 

Conflict scholars have long acknowledged that relationships involve both conflict and harmony. Some negotiation scholars also acknowledge that negotiation involves both cooperation and competition. For anyone to adhere rigidly to principled negotiation, they will be at a disadvantage with another party who acts both cooperatively and competitively. Negotiation during mediation realistically involves aspects of both cooperation and competition. Being skilled in both is more likely to benefit any participant.