by Philip Be'er
By three years old, like many children, my daughter, had mastered the art of negotiation. Winning arguments against her, and saying “no”, became increasingly difficult.
When she wanted to watch another show, stay longer with friends, or eat ice-cream, she framed the demand in such an exaggerated way, that by the time her mom or I were through negotiating, my daughter had gotten exactly what she’d been planning to get.
She would sometimes insist on watching a show, even though she was exhausted, and struggling to keep her eyes open, or ask for a third bowl of ice-cream after struggling to finish her second bowl. Thanks to her, I learned something critically important: It’s not unusual for a person to be less interested in what they’re asking for than what that thing REPRESENTS, or means, to them.
A common example of this dynamic, in divorce mediation, is an insistence on holding onto a home, because the building represents stability, love or precious memories.
Skilled mediators are able to facilitate a conversation where emotional motivations and practical motivations have equal import and value.
Mediators who are skilled at deep listening, and who are able to shift the conversation from starting-positions to interests quickly, are able to arrive at consensual agreement sooner.
Informed mediators create an environment that is safe enough, (emotionally and physically) for the parties to feel free and comfortable enough to share, and to honestly express their:
despite all the stresses and the tensions between them.
When this quality of safety is absent, it’s difficult for the parties to fully express their interests - and interests that have not been articulated are unlikely to be considered. This can lead to lower quality agreements and to a higher likelihood of conflict in the future.
Litigation: Unseen, Unheard and Unprotected
Mediation's emphasis on interests and safety contrasts starkly with what generally occurs when parties are forced to litigate: Our courts are ill-equipped (and have no time available) for listening to underlying needs and desires; distilling interests from positions; or shielding more vulnerable parties from manipulation and exploitation.
Another profound advantage of mediation is the opportunity it provides to evaluate pros and cons in a way that has no equivalent within the adversarial litigation ecosystem.
Mediators are able to pose questions like:
Mediators, like myself, are adept at creating and maintaining a ‘container’ that is safe enough to explore challenging lines of inquiry.