Defining Success in Mediation

When we are faced with conflict, one of the factors that can define the difficulty we have reaching resolution is how we define success. It is very tempting to react with a narrow definition that focuses on finding the other party “wrong.” In our quest for vindication, we focus solely on proving that we were right, they were wrong, and no one should ever cross us. Ultimately, this is an immature attitude that does far more harm than good.

Initially, it should not be surprising that even when one side “prevails,” such as in a litigation setting, it is rare that the “defeated” party changes their belief to a perspective to the point that the “victor” was correct. A one-to-one battle to the death is not an effective method of convincing anyone of anything. A conclusion may be made that determines how a party is entitled to proceed, but it does not create a determination of who was “right” or “just.” It is merely a determination by a third party of how it will proceed.

Further, framing conflict as “win-lose” harms the relationship, sometimes to the point of irrevocably severing the tie. This is rarely optimal. For example, in a family setting, parents who are divorcing will still have to deal with their children and their children’s families long after the dispute is resolved. Similarly, in a contract dispute or in the context of a special needs child, the parties will have an ongoing need to interact with each other. A process that leaves scorched-earth makes maintaining even a civil relationship quite difficult.

If instead, the parties seek to define success as finding a resolution that both sides can live with, the parties may find that they are more open to redefining the problem in a manner that can benefit both parties.

In their 1983 classic, "Getting to yes – Negotiating Agreement Without Giving In," Roger Fisher and William Ury identify three basic sorts of people problems: (1) different perceptions among the parties; (2) emotions such as fear and anger; and (3) communication problems. To address these, a focus on interests rather than positions can help move parties away from the “win-lose” dynamic into a problem solving dynamic.

Consider a divorce of two parents in which the mother is adamant that she “keep the house.” (Gender pronouns are solely to distinguish the parties and are not meant to imply any particular format for a family). She may believe that as the lower earner, she will have extreme difficulty qualifying for a home loan and believe that the family residence is the only option. She may believe the value of the home is certain to rise and view the acquisition as a prudent investment. She may also claim that the children would be devastated by a move.,

Upon hearing the “demand,” the husband immediately refuses, either demanding that the house be sold immediately or that he retains the residence. He may not even care about the house, he just does not want her to “win.” In fact, he believes the children should live with him, despite the fact that he travels extensively for work.

The positions taken in this hypothetical dispute provide no avenues for common ground – One side keeps the house, the other does not. The parties claim they will stop at nothing to achieve their outcome, regardless of how little the benefit or how great the harm to themselves.

Upon proper inquiry and coaching, we often find real and perceived bases for these positions. The family residence often represents a picture of what the spouses signed up for in getting married – it is the “American Dream.” They have spent at least their married life “building” this dream and to lose it now would invalidate the time, effort, and emotional investment. They feel they are “losing” themselves. This is the perception.

It is important to remember that the opposing party brings as many perceptions to the negotiation as you do. The husband may feel the loss of the home is the loss of his identity as a provider or as a parent.

However, there may be common ground – the parties may agree that over time, the house will appreciate and may be a good investment. The parties may agree that the children could benefit from living in that specific home due to schools or family proximity, etc. They usually agree that each parent will need a place to live. They may have some ideas on how to address the lower earner qualifying for a loan or have creative ideas to address housing. Often, time is a variable – it may be useful to have one party live in the home for a specific period of time after which it may not be so essential.

To find these options, we must first assist the parties in letting go of their positions (I am keeping the house versus we are selling the house) and then on to identifying their interests. Here, the low earner has an interest in securing a living arrangement, the parties may both have an interest in facilitating visitation with the children by addressing geographic proximity to each other, the parties believe that a specific school or activity is particularly beneficial for their children. By defining success in terms of solving the problems that address the parties’ interests, the parties are able to focus their mutual energies on the solving of problems rather than fighting each other. It is in this posture that the parties are best able to find creative solutions, and ultimately resolve conflicts in a manner both parties can live with.