Abby Tolchinsky and Ellie Wertheim, New York Law Journal
July 28, 2014
The virtues and versatility as well as the limitations of mediation, have been brought into focus in recent weeks. On the world’s stage, there is a complex negotiation over Iran’s potential nuclear capacity in the long- and short-term. In the Middle East, the mediator Martin Indyck resigned in frustration, leaving the Israeli/Palestinian conflict not only unresolved, but violent once again. In local news, a federal mediator’s recommendations were rejected by the union in the Long Island Rail Road labor dispute (though the dispute was resolved at the 11th hour thanks to face-to-face negotiations).
In our own practice, we continue to reflect on recurring themes and patterns in mediation. All of which leads us to address the question: What are the signposts for resolving conflict in mediation? That is, what are the ingredients for both the parties and the mediator—and they can be quite different—that increase the likelihood that parties will reach agreement? And, given that mediation is an elastic process, intended to bend to the needs of the parties while staying true to its essential tenets, how can such flexibility be employed so that parties have a greater chance of reaching agreement?
Negotiation theory guru Daniel Shapiro, professor of both Harvard medical and law schools, asserts that “there are two basic approaches to negotiation: the rational approach and the emotional approach.”1 He recognizes emotion as an innate component of conflict, one that must be acknowledged in order to obtain a resolution that resonates for the parties. While providing trainings on his theory worldwide, Shapiro reflects that, “The world has globalized. The nation state has been flattened. More and more conflict in our world is based on identity.…It is a hot war! A messy, emotional war!”2 The extent to which emotion—be it fear of mistake on the global stage or mistrust rooted in family betrayals—is engaged and taken into account is an essential task of the mediator. Failure to do so limits the mediator’s connection to the parties and impedes the possibility for resolution.
With that in mind, the most important element for parties and mediator is, simply put, motivation. But motivation to do what? To settle outside of court. To achieve agreement. To listen to the other party’s perspective, even if you disagree with it (or, better, especially if you disagree with it). To shift the dynamic in the relationship, perhaps in the most fundamental way, or at a minimum, to be open to the shift.
These aspirations may seem grand or unrealistic in the face of a long and difficult history between the parties. Consider, for example, the Iranian nuclear negotiations, in which the parties have a decades-long history of enmity, but are newly back at the table, announcing small steps forward. In our practice we observe that making small agreements, perhaps even “micro-agreements,” can give parties the fortitude to believe that they may ultimately reach agreement on more substantive issues—and thus they stay at the bargaining table. For instance, at the outset, parties may agree on the discovery process, how they are paying for mediation, exchanges of money on an interim basis, or a gag order, all while they are negotiating.
A motivated mediator, thoughtful about the dynamic between the parties, their history and culture, can bring tremendous energy into the process. The key is a determination to understand fully the conflict as it is understood by each side and to help both sides imagine possibilities that may address their most pressing needs in the scope of a resolution.
Mediator motivation goes to the core of the process—in stark contrast to driving the process. A recent example is Secretary of State John Kerry’s months-long effort to secure agreement between the Israeli government and the Palestinian Authority—surely, he is invested in a peaceful outcome, but he did not foist a solution on either side. Similarly, in a family conflict, the most effective mediator will remain in the room, helping the parties to understand their options, and each other, but remain detached from substance of the final resolution, as long as it is reached with integrity to the mediation process.
Indeed, the parties may exercise autonomy and opt for an alternative forum for addressing their conflict, and the mediator does not pressure them to stay in the process. So too, the mediator may himself withdraw from the process if the parties are not sufficiently motivated to participate meaningfully—to actively listen and compromise.
Role of Emotion
The mediator needs to be vigilant of her own emotional triggers, assumptions and judgments. Essentially, the mediator is operating on two tracks simultaneously. Most obviously, the mediator is observing what is happening between the parties by way of what they are discussing and how they are relating. The second track, less apparent (or not apparent at all) to the parties, is how the mediator is reacting internally. A mediator may be confronted with a party whose values are in stark contrast to her own, thus triggering offense, anger or personal hurt.
Personal reactions could be triggered by how a party approaches the discussions. Or whether they seem to be participating fully and productively. Or whether they are “good” listeners and can put themselves in the shoes of the other side. The challenge for the mediator is to continue to work with the parties while observing and managing her own internal reactions—and then making an added effort to achieve a neutral balanced position in light of that internal reaction.
Similarly, the mediator must listen with full attention and intention, an open sense of curiosity. For example, a party may be making a claim for an asset of value to which there is no legal entitlement and which seems over-reaching to the mediator. Rather than reacting and labeling such a request as legally untenable, thereby cutting off a discussion about values and interests, better to ask why—thereby broadening the conversation, understanding, and, in turn, the possible outcomes. More often than not, such demands are rooted in an emotional aspect of the conflict and a party’s desire to be made whole in a manner that reflects their sense of fairness. Indeed, mediation is meant to be an out-of-court process that affords parties the freedom to craft individualized and creative settlements.
The absence of compassionate connection by the mediator with the parties—in favor of a more tempered and a rational approach—has its own risks. That is, if there is a shuttle diplomacy and “horse trading” bargaining style, there are missed opportunities, not just for connection but also for creative outcomes. Moreover, parties can be left feeling empty. A striking example: Daniel Shapiro conducted an oil price-setting exercise with a training group, in which two “countries” must set the oil price for sale to a third “country.” One group chose to maximize their own profit despite a guarantee that it would destabilize the other nation. The other group took into account the repercussions of a purely self-protective result and chose to maximize benefits to all.
The different choices led the first group to regret their approach—it soured the relationship between the two “countries” and fostered feelings of betrayal.3 All of which is to say, how decisions are reached sometimes matters just as much as what results they yield. In mediation, understanding aired between both sides can bring about more flexible and thoughtful options.
In our practice, parties often come to the room with concrete proposals, which may be received with skepticism or outright rejection. Time and again, we have observed that when parties have had the benefit of airing concerns and interests, they ultimately circle back to an initial offer; having gone through the conflict, they are then poised to settle on terms that resonate both intellectually and emotionally.
Of course, there are roadblocks. Often they come in the form of repeated grievances, unwelcome patterns that are ingrained. The need to address and set right a grievance is indeed a powerful one that a mediator must engage. Itamar Rabinovich, a former Israeli ambassador to the United States and chief negotiator with Syria, addresses the mediator’s role in understanding and framing deeply held grievances when describing the current conflict between Hamas and Israel: “That’s what you need mediators for—you find that magic formula, constructive ambiguity, that enables both parties to claim achievement. Right now, those actors are not there.”4 In other words, when a mediator reflects the given history, in all its complexity, he can lay the groundwork for moving forward, away from conflict.
Similarly, a mediator’s refraining from judgment and instead trying to understand how a party feels he has been wronged—nothing more, not trying to resolve an age-old hurt—can inject a great deal of understanding into the negotiations. It affords the parties an opportunity to hear the issue reframed through a neutral voice. Ultimately, it is for the parties themselves to determine whether they can prioritize settlement and let go of past wrongs just enough so that they can get to “yes.”
All forms of conflict resolution entail significant risk. On the global stage, political careers, national security and economies are in play. In other arenas, reputation, relationships and assessing possible outcomes in available forums are considered. There may always be a nagging worry about appearing weak, ceding the moral or political high ground, and, of course, being dead wrong.
In conflict resolution, there are no absolutes and no pure wins. We often advise couples to strive for something they can live with as opposed to a decisive victory on a macro level. The essence of negotiations is the work of simultaneously holding the opposing view and allowing it to co-exist in tension with your own. The move from that posture to a final deal has inherent risks, and, so too, may it offer both closure and a new paradigm for the future.
1. Negar Azimi, “The Teaching Cure,” New York Times Magazine, Sept. 19, 2008. http://www.nytimes.com/2008/09/21/magazine/21DUBAI-t.html?pagewanted=all.
2. See supra.
3. See supra.
4. Jodi Rudoren, “A Push Into Gaza, but the Ground Has Shifted,” The New York Times, July 18, 2014. http://www.nytimes.com/2014/07/19/world/middleeast/israel-gaza.html?_r=0.