by Veronique Fraser, Joan Stearns Johnse for Mediate.com | July 2020
Mediation takes many forms and has many facets. It is a malleable process that parties and neutrals adapt to different areas of practice, cultures, and practitioner demands. This flexibility derives from the broad range of skills that neutrals draw upon.
Mediation is Negotiation
Negotiation is a primary skill of any mediator since mediation is a facilitated negotiation and the mediator the process specialist. At a minimum, mediators must understand and be fully competent in all aspects of negotiation. This includes an understanding of negotiation theory such as asking the right questions, framing statements, separating people from problems, identifying and addressing underlying interests, generating creative options for mutual gain, and applying objective criteria, ATNAs and ZOPAs as well as managing conflicting negotiation styles.
Today’s skilled mediator ideally has a much fuller tool chest, encompassing a much broader set of interpersonal, psychological, and communication skills. As research and scholarship in the human sciences has been adapted to mediation, the value of the mediator has increased. This broader toolkit and the wisdom to use it appropriately, equips the modern mediator for all challenges. The modern skilled mediator is capable of so much more than settling disputes.
The mediator’s value now includes highly attuned and elevated communication skills including empathic and active listening as well as non-verbal understanding and behavioral fluency. It also includes an understanding of neuroscience and behavioral economics as well as cultural competency, preparation management, process design and subject matter expertise. In short, the mediator’s skill set continues to expand and as it does so, the value of the mediator similarly grows.
This wide range of interpersonal and communication skills enables the mediator to identify sources of potential opportunity and conflict even when they are not fully understood by the parties. The mediator uses their deeper understanding to interact earlier and help parties fashion more creative solutions.
Mediation’s Value Beyond the Resolution of Conflicts
The power of mediation skills can be valuable well beyond traditional mediation. For example, a mediator can be used to manage process and help parties reach agreement in complex and challenging negotiations such as those between multiple parties of different cultures, countries, languages and expectations in complex joint ventures.
Mediators can add steerage value in anticipation of friction or disagreement between businesses, whether competitors or customers or even colleagues. They can surface and listen to underlying interests to identify sources of agreement and disagreement. As mediation matures and our appreciation of its value grows, we can think more broadly about its application.
So why should experienced negotiators call upon a mediator to assist them with deal making? What value can a mediator bring to proficient negotiators? The answer lies in the unique value of a skilled mediator that transcends that of any negotiator. There is a difference between closing a deal and building a long-lasting partnership. Often negotiators concentrate on the mechanics of securing the best deal today. They often focus less on sustaining business interests. Deals are more tangible and static, but circumstances change and what seemed fair at the conclusion of the deal might no longer be perceived so by everyone over time. This leads to conflicts, court battles, increased transaction costs and loss of value.