Getting Beyond “No”: The Art Of A Successful Conflict Mediation Process

The stakes are high in the conflict mediation process. The financial cost is often considerable, but just as often, only part of the story. There is the human cost in terms of relationships, either personal or professional. Whom you select to mediate your conflict and how successful that person is will go a long way toward determining your future success.

Maxim Waldbaum has spent more than forty years as a successful conflict mediator, particularly in the arenas of patent, copyright and trade secret cases. A partner at Eaton & Van Winkle, Mr. Waldbaum has been called upon to give presentations teaching others how to work through contentious negotiations and find a settlement workable for all parties. What follows is a general outline of the principles he has found most effective.

ACCEPTANCE & BUILDING TRUST

There can be no lingering hope that one party will suddenly awaken and see the logic or the justice in the opposing side’s position. If the mediator finds themselves holding an opinion that favors one side or the other, banish it. The mediation must begin with a basic acceptance that negotiation is the only way to resolution.

This acceptance becomes the foundation for building trust. The importance of this step is surely evident, but it’s worth re-emphasizing—without trust, the mediation is doomed to failure.

The way to build that trust is to interview each party in advance of the mediation. The mediator must prepare as though they were the attorney for each side individually. That means a pre-mediation interview, a thorough study of their position, and a confidential analysis of the pros and cons. This process is not only good for building trust, but it enables the mediator to flush out any red flags in advance of a face-to-face meeting with the parties.

A mediator has an important asset—their presence has been requested by the opposing parties, so the need for help is acknowledged. But there’s no getting around the fact that a mediator is stepping into a hornet’s nest that usually involves intense personal animosity. And while trust-building is an important prerequisite, it’s not enough unless the mediator can offer concrete solutions.

DO YOUR HOMEWORK

Study the industry you’re preparing to mediate in. Be aware of the substantive legal and financial issues at stake in the process. Think of it this way: If a mediator were called upon to handle the ongoing partisan warfare in Washington D.C., how far would they get if they were unable to articulate each side’s policy positions in the contemporary framework?

Without this knowledge base, you’ll never get past the trust-building process. But through intensive analytical work, you can build on the trust you’ve established and offer solutions the opposing factions might not be able to see themselves.

THE NEGOTIATION BEGINS

Give each party five uninterrupted minutes to make themselves heard in the presence of the opposing side, making it clear that this is not the place for further vitriol. You will then keep the parties separate except if circumstances require.

As the mediator, your job continues to focus on building trust. Make sure each side realizes that you’re in this for the long haul. You’re not on a time limit, you are there to see this through to a peaceful resolution. It will be important to further remind each side that you have no stake in the outcome—you simply want there to facilitate an outcome.

The mediator must be alert and see when a proposed course of action by one party will lead to fissures in the positions. The reaction must be prompt, steering dialogue away from dangerous reefs and into safer waters.

NOTHING WORTHWHILE COMES EASY

Mediators should be under no illusions about the task they face. They will need to be available 24/7 to both sides. They must stay positive, even when things seem to be falling part. And they must overcome their own frustrations to always stay logical and analytical with the parties, bearing in mind the old saying that one “catches more bees with honey”.

Persistence will win the day. Don’t give up—if there’s a bad day in the negotiations, remember that there’s always tomorrow—and next week and next month. The rewards for all sides for seeing it through make it worth the work.

Eaton & Van Winkle offers alternative dispute resolution services. Contact us at (212) 779-9910 or via e-mail at info@evw.com to set up a consultation on how we can help you in the conflict mediation process.