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Don’t Compromise in Mediation – Try Collaborating!

By Chuck Doran

At the start of a mediation I conducted a few years ago, one party made the following statement: “We’ll be done with this mediation when both sides are equally unhappy.” I thought that the parties could do better and it reflected a prevailing mindset many people have when they enter into mediations and negotiations. Compromise is often considered the gold standard or the best that they can do, and meeting somewhere in the middle seems like the fairest and most realistic path to settlement.

However, I think that’s a pretty low bar. The party’s pessimistic view of compromise is actually a fairly accurate representation – everyone gives up a little of the available value in order to reach some sort of resolution. Listening to the radio one day, I heard a Miller Lite ad that really made me think about this. The ad ends with the tagline, “We believe that if you compromise on taste, you can taste the compromise.” We refuse to compromise when it comes to the taste of our lite beer, so why settle for anything less when we are negotiating about things that are so much more important?

Rather than idealizing compromise, I aim to help parties in mediation and participants in MWI’s mediation trainings try a different approach: collaboration. When we work to collaborate with the other side, we strive to identify and capture all of the available value while also improving the relationship. It takes an investment of time and energy, and it is also a learned skill that takes practice and development. To start improving your ability to collaborate in negotiation, try implementing the following ideas:


Identify your shared goal

Embedded in the word collaboration is co-labor, and collaboration requires both sides to work together towards a shared goal. In the book Getting to Yes, the authors explain this process as separating people from the problem. What is the challenge you are trying to overcome? What do you hope to achieve by negotiating?

Before generating options or making decisions, be explicit with your counterpart about your goal to help each other get more value out of the negotiation. Offer them a different way to approach the negotiation – one where the two of you work together, rather than against one another. I utilize this skill often as a mediator. After listening to parties’ statements about what they want out of the mediation, I do my best to identify their shared goals. Maybe it is finding a fair resolution that helps them both avoid court, or it might be finding a way to improve their working relationship or improve their department’s productivity. Whatever it is, I help them to clearly define the shared goal.


Ask each other: “Why?”

Once your have expressed your desire to work together towards a shared goal, it is important to dig deeper into why you need certain things from the negotiation. The things that you and your counterpart find important in the negotiation or mediation are your interests. Identifying your interests and your counterpart’s interests is essential to effective collaboration. The more I know know about why are you asking for something and what you find important in a negotiation, the more equipped I am to meet those interests in a way that is low cost to me and high value to you.

What are Interests?

To learn more about the other person’s interests, try sharing your interests first. Being upfront and honest about your needs in the negotiation could spark the same attitude in your counterpart. You can also ask them open-ended questions that give them space to speak. Good examples include:

  • Why is that important to you?
  • Can you tell me more about that?
  • Help me understand more about the request you’re making.

Brainstorm a variety of potential options

After learning more about each other’s interests, you’re ready to start identifying solutions in your negotiation. To collaborate effectively through the brainstorming process, it is important to think creatively and avoid clinging to one option too early. By separating option generation from option evaluation, we allow ourselves to find solutions that might not have been obvious before and increase the likelihood of identifying ideas that maximize value for both sides.

You can facilitate this process by openly stating your desire to come up with many ideas without anyone becoming beholden to them and securing your counterpart’s agreement to take part in the brainstorming process. Rather than dismissing ideas that will not work, dig deeper to figure out why they won’t work and what could work instead. As we mentioned in our post on improving teams’ productivity, try to build off of each other’s ideas before evaluating whether or not it is a viable solution.


Create a zone of fairness

Everyone wants fairness – it is a biological need as we learned from our Capuchin Monkey friends. However, for two people in a tense or difficult negotiation, determining what “fair” means can seem insurmountable. This is one reason compromise is such a popular negotiation style – splitting the available value gives the air of equity. However, there are better ways to define fairness. Just as you generated a list of possible options, provide each other with multiple definitions of what fairness means to you.

For instance, if I am negotiating the price of a condo, I will not simply rely on the listing to define a fair price. I will gather a variety of comparables, consult with a realtor, or even hire a professional appraiser. The seller will likely do the same, and we can pool our research together to create a zone of fairness. Drawing on a zone of fairness, you can evaluate the many options you generated together to determine what solution meets the most of both of your interests.


In the end, a compromised solution might make the most sense. But the process of collaboration ensures that no value is left of the table, and it displays your desire to work with the other person in a more long-term and committed kind of way. Collaborating effectively takes practice, but those who do it well reap the benefits of capturing more value and improving relationships in their mediations and negotiations.

What’s been your experience?

To learn more about mediation and how to collaborate more effectively, contact Chuck Doran, MWI’s Executive Director, at 617-895-4026 or cdoran@mwi.org.

 

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