What is it about the process of airing our grievances in front of a stranger that makes it easier than direct negotiation with our opponent?
We respect the mediator
When we choose mediators, we naturally look for people we respect and trust. Maybe it’s a retired lawyer or judge well known around town. Maybe it’s a mutual friend or industry expert. Even if we don’t know them, we respect their role. Whoever it is, we value their insight, and so we listen when they tell us where we’ve gone wrong, what’s weak about our case, or that we’re unrealistic about the dispute. The opinion of n unbiased outsider carries weight.
We get to talk about it
We often don’t get to talk our disputes through. Our opponents get defensive and talk over us. Or friends don’t want to hear it. Courts are a limited forum focused on rights and duties. Judges don’t care how we feel. They care what the law is.
Mediators are there to listen to the whole story. They let us talk about past history, irrelevant facts, and the way we thought it would be. Sometimes they just sit patiently while we scream. Out of that, they help us decide what’s important and plan the way forward.
Mediation isn’t therapy. But it does meet the human need to be heard. When you feel your pain has been recognized, your negative emotions diminish and you can stop fighting. And it may be that some “irrelevant” thing, like an apology or a way to save face, is the key to resolution.
Mediators challenge our biases
All of us default to a set of built in assumptions, called “cognitive biases” Sometimes these get in the way of resolving disputes. For example, we unconsciously assume that if our opponent tells us something, it is therefore wrong. (Psychologists call this bias “reactive devaluation).. In addition to cognitive biases, we make other assumptions about our disputes, based on past history, our sense of what “ought” to be, or stories from others.
The remedy for assumptions and biases is objective information we trust. If a mediator tells us we have overvalued our case or underestimated our risk of losing, we will give our assumptions another hard look. This may lead us to be more reasonable, which promotes settlement.
Similarly, mediation provides a reality check. We expect our lawyer to be aggressive, and sometimes penalize him or her for a low but realistic valuation of our claim. So there is a tendency to aim high. Or perhaps we have fixed the value ourselves. Either way, it is hard to think critically about those numbers. But a mediator can ask “where did you get that number?” or say “that number is much too high” without backlash. He or she often has the credibility of having seen many such cases, and can bring that experience to the table in evaluating the reasonableness of demands.
Mediators keep us focused on our goals
After a dispute has gone on for some time, it can be easy to ‘lock in’ to positions and emotions. It’s hard to make concessions because we may lose face. A mediator can break the impasse by reminding us of our goals, and noting that our hostile patterns won’t get us there. The mediator can also help save face by making proposals that make sense, but that we don’t feel we can accept directly from our adversaries.
Mediators coach us through the negotiation
Everyone negotiates every day, so we assume we know how. But negotiation is both art and science — a ritual with predictable moves and countermoves, as well as a way of communicating with our adversaries. For example, a series of slow, small, concessions sends the message that there’s very little room left to maneuver… usually little money left to offer. Professional neutrals can see these messages in the events around them, and make them intelligible to the parties. They often have hundreds of hours of negotiation training, which helps them predict the effect of a move, or the likely next move. Thus, without telling parties what to do, they can inform participants about what effect a particular offer might have at a particular time.