Harvard Takeaways – Part Three

If you’ve been following my blog over the last few weeks, you’ve undoubtedly noticed the impact the Mediating Disputes course I took in June at Harvard Law School had on my views on mediation.  The week-long course, offered by the Harvard Negotiation Institute, challenged many of today’s current approaches to mediation practices and suggested new and innovative tactics for mediation, which I intend to implement in my own practice as a mediator.  In addition to a non-caucus style approach to mediation, the course stressed empathy and active listening as key components to effective negotiation.

The final piece of the negotiation puzzle—the Understanding Based Model of Mediation—proposes a different way of looking at conflict.  It’s important to recognize that mediation is a voluntary process in which the parties make decisions together based upon their understanding of their own views, the other’s views, and the realities they face.  The mediator, then, works as a non coercive neutral to help the parties negotiate an agreement that serves them better than their alternative.  The Understanding Based Model focuses on six underlying concepts to facilitate negotiating this agreement.

Develop understanding

The Harvard course emphasized beginning with an understanding of the parties, yourself, and the law.  Often, understanding is underutilized, and mediators focus on coercion instead.  For example, a mediator might say, “If you don’t do X, this is what will happen in court,” or otherwise use a potential outcome as a tactic for driving an agreement.  Instead of forcing the parties into anything, the Understanding Based Model stresses that mediators should strive for a basic understanding of where the parties are, what the issues are, and what the law says before jumping to problem solving and looking for solutions.

Let the parties own the conflict

This is a big one, because as attorneys, we tend to go straight to the solution.  We are, at the root of it, problem solvers.  But while we think we may know the best way to proceed, we need to give the parties the responsibility of finding the solution that works best for them.  Clients often want the mediator to tell them what to do, but the mediator’s job is to help the parties come up with different ways to resolve the conflict and get to a resolution, not direct it.  Letting the parties own the conflict allows the mediator to engage fully with the parties and explore more options and possibilities. Unlike in court, where the judge solves the problem and the parties have to abide by what is decided, mediation allows the them to customize an outcome they can live with.  And when they own the conflict and create their own solution, they’re more likely to honor it.

Proceed by agreement

In mediation, everything moves forward by agreement, not by force.  The parties are choosing to participate, find a solution, and move forward with it.

In helping individuals resolve their disagreements, it’s imperative for the mediator to consider both the “what” and the “why” behind the conflict—what the problem is and how it is evolving. It’s not just what the parties are arguing about, it’s how they’re doing it. How they talk to each other, their knowledge, and their ability to listen and communicate can reveal power imbalances and the underlying emotions and dynamics behind the issue. When a mediator understands how the conflict is being dealt with, they can help the parties reach an agreement on what they’re disagreeing about.

Go beneath the problem

Albert Einstein said you can’t solve a problem at its level.  Most problems go deeper than what you see at the surface, and this is certainly true in mediation.  For the mediator, it’s important to see and understand what is happening beyond the obvious stated problems, what the underlying issues are, and address the problem at all levels to help the parties move forward to resolving their conflict.

Allow tension

Tension makes many people uncomfortable, but tension and conflict are part of the mediation process, and are actually necessary to reaching a resolution. In fact, a lack of tension in mediation can be dangerous, as it’s an indication that one or more of the parties aren’t engaged, paying attention, and/or committed to resolving the issue.  Typically, when tension reaches its peak, that’s when the parties get serious about finding workable solutions and a resolution can be achieved.

Support autonomy and honor connection

Similar to showing empathy, the mediator plays an integral role in the mediation process by simply respecting the conflict for what it is and what the parties are feeling without judgment or jumping to finding solutions. People need to feel supported, validated, and respected. By honoring each individual where they are and empowering them to control their own outcome with empathy-based professional guidance, a mediator can help everyone involved achieve the best possible agreement.