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Mediation as an alternative, or at least a complement, to litigation is well-established. By condensing the negotiating process and holding it in the most favourable of circumstances, mediation has enhanced the prospect of timely and cost-effective dispute resolution.
Mediation has enhanced the prospect of timely and cost-effective dispute resolution. However, for those who regularly participate in mediations, there is a growing concern that whilst it has indeed shown itself to be a valuable tool for resolving disputes there is a danger of it being used merely to settle disputes slightly earlier and less expensively than would otherwise be the case. Insufficient use is made of techniques that add value to settlements. One technique in particular, that of searching for a number of options before deciding what to do, has been neglected.
Negotiation Techniques of "Getting to Yes"
This technique, which separates the processes of finding options and judging them, rather than searching for a single solution, was made famous by the emphasis placed on it by Roger Fisher and William Ury in 'Getting to Yes', and has been advocated by many others since that book was first published. It not only seeks to broaden the options available to the parties but to avoid the instinctive adverse judgement often made to an opposition proposal. There can also be an improvement to the quality of the dialogue between the parties when both are working jointly on a number of proposals.
The most frequently heard argument against this proposition is that the 'Getting To Yes' style of negotiating is of limited use in most common types of dispute where the parties have long since decided they no longer want to deal with each other. In such cases, it is said, a hard, disciplined style aimed at extracting as much as possible from unavoidably positional negotiations gets the best results. Mental toughness rather than the ingenuity of the parties is the issue.
Sticking to one option brings difficulties
Critics go on to question whether it is even feasible to find more than one option in most distributive negotiations where the parties are dividing the loss upon the termination of an unsatisfactory commercial relationship. One party wants money out of the other and the issue is how much or how little. Furthermore, the processes of inventing options and then judging them in a brainstorming type session has an unlawyerly feel to it, and a brainstorming session between opponents is difficult when there is little or no trust between the parties. Hard negotiating tempered by the 'Getting To Yes' principles of focusing on the problem and using objective criteria may well be an effective form of distributive bargaining.
Hard negotiators receive unjustified praise
It is widely perceived that hard negotiators beat soft ones (although soft negotiators are not nearly as common as those who are afraid of being seen to be soft). Yet the style in which we negotiate will shape the result. After almost any brainstorming session there is often general astonishment at the variety of options that have come up, and many of the parties at commercial mediation will come from backgrounds where generating and then discarding or perfecting options is integral to the decision making process.
Cases turn on their own facts and circumstances but experience shows that in many cases a search for options would greatly benefit the parties in both terminating the relationship and mitigating the collective loss. Take, for example, a dispute involving goods sold and delivered where one party is disputing quality and the other is demanding payment - as common an example as can be imagined of the 'end of the affair' type of case. Parties frequently put their energies into disputing the amounts and allocating the blame as they try to build watertight cases rather than mitigate the loss. Neither party wishes to be left with the goods and little effort is made to dispose of them, even if they are of a perishable nature. There could be a number of options for dealing with such circumstances and an early mediation aimed at seeking options to preserve the value of the goods or mitigate the loss, rather than focusing on who is to blame might well save value for both parties. Delay in mediation can be advantageous
An interesting side point is the timing of mediation. A delay in mediation is often rightly considered to be necessary for the issues to be clarified and for parties to face up to realities. Yet the costs that have mounted up as well as any loss that has been allowed to grow will in turn act as barriers to settlement. Some would advance as a general proposition that when there is a loss capable of being mitigated the potential advantages of an early mediation outweigh the risks even if the parties are determined to have no future relationship. Disputes involving intellectual property often arise where one party strongly objects to the previously undisclosed relationship and wishes to bring it to an end.
Multiple options control negotiation before it begins
Yet there may still be a number of alternative resolutions, even after injunctive relief, where parties may have matters in addition to money to exchange. There may be issues such as the exchange of information, the scope of previous activity, the nature and boundaries of future activity, to say nothing of options that are peculiar to each individual case, all of which could be resolved by a variety of options which it could be of benefit to both parties to explore.
There are often ends to be tied up when commercial relationships are terminated – the use or disposal of no longer needed goods or equipment, information, assets, skilled employees, that may come outside the narrow focus of the pleaded case and where there could be a variety of value saving options. In a recent case expensive routers, the accompanying software and other high value equipment were left to gather dust as the parties contented themselves in perfecting arguments which placed the whole of the fault on the other side. To seek to mitigate loss might have come as an admission of liability, and so during the litigation process the parties seemed happier to negotiate distributively rather than discuss options for mitigating loss. Generating options can improve settlements
In conclusion, the generation of options, on large or small issues, allows parties to improve settlements and may be useful even when the relationship has ended and the parties are, as is often the case, engaged in unavoidably positional negotiations. Furthermore, since the negotiating process between antagonists is frequently a poor framework for the spontaneous generation of options, parties may require a positive stimulus from a third party, in addition to careful preparation, to consider alternatives to the track on which they are set. Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.