Mediation: The Better Way

To fully understand the mediation process it is first necessary to discuss some different ways in which people can negotiate or bargain and to compare and contrast the process with litigation.  There are two principle ways that people can work through a dispute.  These are Positional Bargaining and Interest Based Negotiation.

What is Positional Bargaining?

Positions are similar to demands in that they are specific statements about what we want.  For instance, if a party to a dispute says “I want $ 100,000” and the other party says “I will offer you $10,000,” those are their positions.  Litigation then is an attorney assisted process of positional bargaining.  In litigation, clients are typically advised to seek extreme positions knowing that ultimately there will be some “meeting in the middle.”   Holding positions works well for wearing down the other side, but it also fuels the conflict by creating uncertainty, fear and distrust.  Additionally, positions leave us little room for creativity in crafting solutions.  Positional Bargaining, then, is one of the principle reasons that litigation can be such a protracted, expensive, emotionally draining and damaging process because people simply “dig in.” to their positions and are unable to find a creative way out.

Then how does Mediation differ?

Rather than placing us in positions, the mediation process has us identify our underlying interests. Our interests are formed by our principles, beliefs, values and needs.  For instance, as we noted above “I want $100,000” is a position. But underneath that statement is the real interest of a desire for financial security.   Interest Based Negotiation then is a method of looking beneath positions to find one’s interests.  Financial security, flexibility, certainty, fairness, respect and meaningful time with children are all examples of interests found in most family conflicts.  Importantly, interests are concepts that can be heard and understood by the other party in a negotiation.  Mediation then is a mediator assisted process of interest based negotiation that can help you to creatively explore your interests with the other party.  Where positions will invite resistance and stonewalling, properly expressed interests will invite solutions.  It is the expression and understanding of interests that tends to draw both parties involved into mutual problem solving.  This is why mediator assisted Interest Based Negotiation is so effective.

How does it work?

Many parties in a dispute may feel hopeless, betrayed, misunderstood, angry, or frightened.  The mediator creates a setting where the parties are able to talk about themselves, their issues and their interests in a safe and non-accusatory fashion.  Rest assured, all will get to give their point of view - but with some general ground rules.  To keep the environment safe and to allow all parties to be heard the mediator will limit interruption and recrimination.  The mediator will work with the parties to explore their needs and assist them in seeing their true interests.

In creating a safe and respectful environment, the mediator can help you to creatively explore solutions to your conflict that will work for everyone involved.

A note to parents:

Every couple with children has a common interest.  For children, the divorce itself may not present the greatest risk to their well-being.   Children are smart and resilient. They can understand that mom and dad have difficulty living together and they can adapt to separate residences.  Conflict is what destroys them.  Pulled in two directions and raised in continuing parental conflict, the child may ultimately “act out,” engage in addictive behaviors, or become antisocial.  Later, as they near adulthood, the child may realize that they were used as pawns in their parent’s conflict and grow up to be not only alienated from their parents, but also unable to engage in meaningful relationships of their own.  Consequently, parents have tremendous common interests in stopping their conflict and keeping it stopped.  During the course of family mediation, the mediator will explain and teach good communication skills to their clients so that these skills can be used for future problem solving.  Using the mediation process as their example, parents can change the way they communicate.  They can remove the children from the middle of their fighting and reduce the overall level of conflict in their lives to the benefit of the entire family, especially their children.

At Dispute Resolution Professionals we are committed to helping you craft a working agreement that will not only settle your dispute as quickly as possible, but will also give your entire family a chance to heal in the best possible way.




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Colorado ADR Services

Miles E. Davies, JD has been a practicing mediator and arbitrator in the Denver area since 1996.