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Disputes are like weddings. Conflicts
bring out the worst and best in people because of the high stakes
and sky-scraping money expenditures. Given that, mediation can be
an effective method to resolve conflict. The process allows facts
to unfold in a way that creates momentum toward consensus building
and resolution. How do facts unfold in mediation?
In the beginning, facts are staked
out as strongly held positions, or posturing. Posturing might look
like this:
- Extreme posturing on price and
damages as a competitive strategy.
- Using intimidation and threats
in order to advance your position.
- Each party claiming mutually exclusive
rights to the truth.
- Having a narrow view on the situation,
therefore assuming that there is only one thing that will make
things right.
Posturing hide many facts and prevent
problem solving because they are rigidly held perceptions with a
constricted view. Therefore it takes time for facts to unfold.
During the guided negotiation, true
needs become the focus of discussion as the parties shift away from
posturing. Needs answer important questions such as "Why is this
important to you?" and "What will that get you?" The discussion
gets down to the bedrock of what is really going on so that the
most valued needs can be addressed.
Facts literally need to be mashed
and hashed, and from that nuggets of distilled information come
forth and present themselves. Issues are thoroughly examined by
looking at misunderstandings, damages, unmet expectations, goals,
as well as legal obligations. Often the parties start responding
as if they understand the issues for the first time.
What seems to be slow advances is
actually the process of gradual consensus. Out of the abyss, small
agreements take shape and momentum is created toward forging larger
agreements. Sometimes a sincere apology can be a turning point in
the unfolding process as parties consider how to avoid various pitfalls
in the future. Yes, the unfolding of facts can lead to a learning
conversation as well. From here, various options for solutions emerge
for resolution.
In conclusion, facts unfold in a
leap frog effect from posturing to needs to options to solutions.
This is the cornerstone to comprehensive problem solving. In mediation,
it is the unfolding process that gives mediation its 85% settlement
rate and 90% follow through rate.
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