Successful mediations require that the mediator, parties and attorneys, to paraphrase an old adage, “Mind their Ps in mediation.” Principled negotiations are likely to lead to a satisfactory resolution of the dispute in mediation if all participants bring Perspective, Persistence and Patience without Panic to the negotiation. These Ps define a good mediator, an effective advocate in mediation and parties who obtain satisfactory results.
Principled negotiation overtly deals with the parties’ interests, not just their positions. The parties’ interests, including their positions, usually must be dealt with for effective and satisfying negotiations to occur.
Positional bargaining is an approach to negotiation that frames negotiation as an adversarial, zero-sum exercise focused on claiming money rather than creating value. Typically, one party will stake out a high (or low) opening position (demand or offer) and the other a correspondingly low (or high) one. Then a series of (often reciprocal) concessions are made until an agreement is reached somewhere in the middle of the opening positions, or no agreement is reached at all. (Patton, Building Relationships and the Bottom Line: The Circle of Value Approach to Negotiation 288 [Harvard University Press, 2004].) Negotiations conducted as purely positional bargaining are often unsatisfying for parties and attorneys; less likely to lead to resolution; and more likely to exacerbate the dispute if negotiations fail.
Principled negotiation is interest-based, not purely positional. Disputes almost always have multiple dimensions or, put another way, a variety of interests at stake. The opposing parties’ interests differ or there would not be a dispute; often, the parties’ interests are not exactly the same as their attorney’s interests; each party in a commercial dispute usually has more than one interest at stake. For instance, one or both parties may desire to maintain a business relationship while resolving the dispute as favorably as possible. One or both parties may believe that their business integrity is under question.
Lawyers and parties try to simplify their disputes, probably because simple, one-dimensional positions seem easier to resolve than a complex puzzle of competing and shared interests. A typical one-dimensional approach to mediation might look like the following: “This isn’t personal; it’s just about money. He only has to pay me what he owes me.” The dispute itself manifests more than one dimension. The other party probably disagrees that any money is owed or, if some is owed, not nearly as much as demanded. Contrary to a typical simplified introduction as “not personal”, usually at least one party, often both, believes the dispute to be intensely personal. Often, three or four separate interests or dimensions are revealed in mediation. As negotiations continue in commercial, construction and employment cases, the parties, attorneys and mediator begin to “peel the onion” by: finding interest in a continuing business relationship; concern about one or both parties professional judgment or reputation; perceptions of honesty; financial problems for one or both parties that caused the problem to grow into a dispute; different parties as the root cause of the dispute; and many others. While most mediations are resolved ultimately with money, they are rarely satisfactorily resolved without consideration of the other interests that appear on the table.
A mediator should elicit the interests of all the parties and attorneys with patience and persistence. No one has to agree that the any parties’ expressed concerns are legitimate, correct or even of any consequence. But all parties need to understand that each party’s interests exist and that they will impact the negotiations. Most interests of all parties will be dealt with in some form or fashion in a satisfying negotiation.