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Like it or not, you are a negotiator

10 reasons why mediation is a genuine tool
to resolve social conflicts

The month November had some remarkable social conflicts in Belgium. BPost, Aviapartner, the ‘gilets jaunes’, etc. A trigger for us to reflect on how mediation and negotiation techniques can help to manage and resolve disputes. 

The impact of a social conflict on the society can be enormous. In the examples of last month, it is clear how this causes havoc. People were stranded at home or at their holiday destination, packages failed to be delivered on time, to give just two examples. In most of the cases, these actions are used as leverage. Unfortunately, this hinders others in their abilities to cooperate. In other words, the pressure and frustrations of thirds, who become the victims, are used to achieve a certain goal. 

It speaks for itself that such an attitude is less constructive, and we can imagine that people see it as a last resort. Therefore, we give a ten-point list of principles we ought to see of merit, and how a mediator can step in.

The mediator will...

1. Demand confidentiality

First things first. Mediation has three typical ground rules: it is by definition confidential, voluntary, and neutral.

Confidentiality is even more vital in social conflict. Most likely, there will be more than two parties involved, each with their own concerns and strategies. Therefore, it is one of the trickiest demands to uphold. It is the task of the mediator to explicitly elaborate on its undeniability.

The confidentiality safeguards that the conflict can be dealt with behind closed doors. In other words, it ensures that no party will leak towards the press. It needs no plea that any leak is fundamentally counterproductive for the constructive mindset of the process. In these matters, no news is literally good news.

When framed correctly by the mediator, such confidentiality can be riveted by binding contract and even damages in case of non-compliance. From a substantive aspect, it is up to the parties to agree upon which elements there can and cannot be communicated to thirds. General rule: nothing can be communicated unless stated otherwise.

2. Watch over the voluntariness

The fact that the process is voluntary for the parties actively involved in the social conflict is obvious. What tends to be forgotten, is that this is also the case for the mediator herself. When she decides during the process that she can no longer be involved or that continuing has become impossible or infeasible, she can walk away.

For instance, when the mediator notices that one of the parties stalls the process for the sake of time-wasting or any other shady and counterproductive motive, she can decide to prematurely end the mediation. The common goal of reaching an integrative solution is in jeopardy in such a situation.

Important to note is that, since the process is also confidential, there can be no communication whatsoever on the specific reasoning behind the mediator’s decision to end the mediation. In specific situations, she can mention that she wants to end the mediation “because I can no longer guarantee that the process is conducted in a proper and honest manner”. Yet specific reasons, such as “this party is clearly lying” can absolutely not be implied. In that regard, even the first phrase is already ambiguous, depending on the specific situation.

3. Be a neutral third

One of the biggest game changers of a mediation process is physically placing a third person in the same room. The mediator is a neutral outsider who observes and guides. She has no interest whatsoever in the content of the conflict.

In the specific case of social conflict, there can involuntarily be an extra dimension to it. After all, the inability of the parties to resolve it is the main reason that the whole society is under pressure, especially when the mediation takes place during a strike for example.

The mediator needs to be able to take a few steps back as a representative of that society (to go to the balcony), in order to intrinsically fulfill her role.

4. Lead the process

The mediator is solely the one responsible for the smooth running of the process. This means that it is up to her to institute communication rules, keep everyone in line, assist, paraphrase and summarize when asked (or needed). She will follow a structure in which the distinction is made between scope-finding and problem-solving.

For example, when tensions rise and people start to shout, it is up to the mediator to step in and remind both parties of the communication rules agreed upon. Secondly, if she notices that not all key interests and concerns have been mapped, she can repel the parties from going into an option and solution phase too soon. In that situation, she needs to be cautious about not acting biased.

5. Not lead the content

In contrary to the mediation process itself, the mediator does not lead the topics of the conversation at all. No exception possible. The parties talk about whatever they deem necessary.

It often happens that the parties deviate from the chosen topics or agenda from the beginning, especially when more than two parties are involved. The most intrusive a mediator is entitled to do is describe the situation.

An example of this could be: “As I understand it, we are now talking about the press releases. I also hear that both of you have a lot to say on that topic. In that regard, we agreed on a specific agenda. I see that the press releases were not included in that list? We can absolutely continue to discuss this topic. That is up to you: do you want to continue to talk about this? Or would you prefer to return to the agenda?”

This level of meta-communication can help to retain the structure, process, and pace at a steady level.

6. Set communication rules

We briefly mentioned the communication rules in point 4. The reason why these rules are paramount is precisely the merit of having a mediator at the table. Psychologically speaking, the presence of a neutral the third is the primary reason why all actors involved act more modestly and reasoned. If we were to take away the mediator, the parties might not even be able to enter the same room and act respectfully.

Communication rules are set up during the initial intake conversation. We advise to write these down on a whiteboard, visible for everyone during the entire session. When things do get heated, it is up to the mediator to remind all parties of the rules agreed upon, clearly and explicitly.

In order to ensure the above-mentioned neutrality, it is best for the mediator to express herself in a general way. For example, pointing out that one specific party is not conducting the process in line with the accord, can be interpreted as a certain partiality. Even more so if this were to happen during the first stages of the mediation. This would certainly hamper the willingness to collaborate. Rest assured that the other party would gladly at his two cents on the matter.

7. Encourage empathy

Empathy is one of the magic words in mediation theory. Yet still, it is received skeptically by almost everyone who is for the first time involved in a mediation.

Let there be no misunderstanding: empathy has nothing to do with agreeing with the other party. In its most pure form, it comes down to the metaphor of you putting on the shoes of the counterparty, journeying in the counterparty's reasoning. It is simply wondering if it would also occur to you to react as has done your counterparty in real life.

It is the mediator’s main priority to make parties understand each other’s point of view to the core, without all the turbulence of indirect communication and emotionally affected burr.

8. Ensure an interest-based approach

Referring to Fisher and Ury, the interest-based approach was a game changer for negotiation and mediation. To ensure an efficient process, the mediator will assist the parties by paraphrasing the parties’ statements. This filters out the concerns behind a certain position. These concerns, called ‘interests’ are the underlying reasonings and allow the parties to move away from positional bargaining. Interests can be both tangents as well as intangible. One of the biggest pitfalls in that regard is that the parties will tend to act argumentative.

For the mediator, it is paramount to raise and search these interests not by asking ‘why’ they want something. Better is asking ‘what’ makes them want something. In the first phrase, parties are more likely to come with arguments, defending themselves. By phrasing it as a ‘what makes’-question, people are more likely to talk from a concern-perspective, a fear. In a search for interests, the latter technique is much more productive.

9. Keep everyone on the same page

Discuss each topic at a time, and that for 100%. Or in other words, make sure the structure is safeguarded and that the order is respected. Next, in order to guide the parties through the process at a communication level, it is also her task to steer the parties in following the proposed agenda. As mentioned above, it can happen that parties deviate from the agenda, because underlying dissensions only managed to surface by talking to one another.

This will not only be necessary during the conflict-scoping phase. When trying to solve the problem, one of the main brainstorm rules, when exploring options, is to explicitly write down the brainstorm question. This will ensure that all options are principle feasible and an answer to the questions.

Considering setting the agenda itself, the mediator should first go around and ask the parties what they consider necessary to talk about in a separate discussion. When a party suggests a topic, she will check if every party agrees to add it to the whiteboard. That does not mean they agree on the framing of the topic. It is also up to the mediator to rephrase it in a more neutral way in order to reduce tension. Only when the list is finished, there will be a second discussion on what to talk about first.

The pitfall here is to linger on too long on the setting of an agenda. As mentioned above, it will frequently happen that parties are going to deviate to some extent. The listing and prioritization of the topics come in handy in cases of quick escalation or multiparty mediation. Once more, it is mainly a great tool for keeping a solid overview and to ascertain a workable pace.

10. Work towards a comprising and definitive solution

Occasionally, the hard conflict indeed seems to be effective for some. Strikes and protests seem to achieve their goal quite efficiently on a short term. No business owner, or any actor in charge alike, favor this type of press interest. On the long run, however, it is not uncommon that the conflict flares back on over time. This is because of the lack of a discussion of both sides’ interests. On the contrary, if there has been any conversation, it will probably only cover a short-term position that was taken by the claimant.

By facilitating, the mediator will use all the techniques and principles mentioned above. This, in turn, gives room to options and solutions that genuinely are in the best interest (literally) for both parties. With everything on the table and a neutral third to guard over the process when parties are venting, the mediator will always keep an eye on the result itself.

We strongly support the mediator to write down all considered solutions and tentative commitments made. Especially the specific word ‘tentative’ is crucial. In other words: “nothing is agreed until everything is agreed upon.” By visualizing what keeps the parties at the table and consistently reminding them of the progress made, these tactics will only positively influence the conversation.