Mediation is a form of negotiation between two parties where a third party neutral assists or facilitates a settlement, which is amenable to, and voluntarily accepted by, both parties. The style of negotiation best suited for mediations is called Interest-Based Negotiation, or "IBN." The theory of IBN is that parties are much more likely to come to a mutually satisfactory outcome when their respective interests are met than they are when one "position" wins over the other. Most negotiations ultimately involve the question of how to distribute something among the disputants or negotiating parties, whether it be money, property, benefits, or obligations. The object of negotiation may be tangible (money, benefits) or intangible (better communication, better work performance, or more respect). Thus, in almost all disputes there is the question of a "pie," and how best to divvy it up. The traditional form of negotiation, characterized by the assertion of opposing positions by the parties, is referred to as Position-Based Negotiation, or "PBN." This tends to view the pie as fixed, such that a greater share for one means a lesser share for the other; a "zero-sum game." IBN, by focusing on interests to be satisfied rather than positions to be won, seeks to "expand the pie," giving each side more, thereby producing a "win-win." Though a cliché, "win-win" does describe what IBN and, by extension, mediation attempt to do. The mediator's challenge is to guide the parties from the natural inclination to engage in PBN to the IBN style.
IBN is a preferred negotiation style in the mediation context because, in most instances, there will be a continuing relationship between the parties; an agreement satisfactory to both parties is desirable; and, for mediation to survive as a litigation alternative in the workplace, the process must be satisfying to both parties. For these reasons, it is the style that has been adopted by the Air Force and is the style that Air Force mediators will use.
2. The Four Principles of IBN.*42
There are four principles of IBN that, if followed, usually produce a settlement that is mutually beneficial to the parties. See Figure 2. It is important that the mediator, in addition to assisting the parties in following these principles, also follow these principles.
A. Separate the People from the Problem.
Most civilian workplace disputes are emotional issues where personal animosity can run high. Misperceptions, emotions, and communication problems place themselves in the way of resolution.
The mediator should assist the parties in "walking a mile in the other party's shoes." This will assist each party, as well as the mediator, in gaining a better understanding of the other's perception of the problem as well as assisting the parties in communicating the source of the problem. This helps the mediator uncover interests rather than positions.
The mediator should understand that each party may interpret the other's motives through their own filters, perceptions, and fears. The mediator should diffuse any negative signals, expressed by either side, as soon as possible. The biggest pitfall for a mediator, though, is possibly committing the same type of error. The mediator should never assume his/her own fears are the same as those of the parties, or, that the parties' motives and perceptions are the same as the mediator's. To do this, the mediator must get the parties to discuss their perceptions rather than drawing assumptions. This can be done either in caucus or in joint session, both of which are discussed in PART 2, Mediation Process.
The mediator must understand that emotions play a primary role in workplace disputes and mediations. If the mediator does not recognize this going into the mediation, he/she will certainly learn this within a few minutes of the parties' opening statements. Emotions play an important role in IBN and should be embraced as another opportunity for getting to resolution. (See Venting below for additional comments)
Communication problems are often, if not, always at the root of the dispute and good communication is a necessary element of the resolution. Here again, the mediator has a dual responsibility. The mediator should ensure through questioning that each party has a correct and clear understanding of the statements of the other party. To this end, the mediator must listen carefully so as to be sure of the meaning of each party. The mediator also has the responsibility of ensuring that he/she is speaking clearly and plainly and that his/her statements and questions are clearly understood by the parties.
B. Focus on Interests not Positions.
Positions are pre-determined outcomes that may not be easily satisfied, and it is the extremely rare case when a position can be fulfilled to both parties' satisfaction. Interests, however, are needs that can often be met to both parties' satisfaction. Examples of interests versus positions can be found at Appendix 6. It is vital that the mediator guide the parties to express needs or interests rather than positions. In part, the vocabulary of the mediator can help or hinder reaching that goal. In this regard, the techniques of "rephrasing" and "reframing" what has been said are especially useful for distilling positions into interests. See Appendix 5 for a discussion and examples of rephrasing and reframing.
C. Invent Options for Mutual Gain.
Once the interests of the parties are known, options for mutual gain can be brainstormed. These potential solutions should attempt to address issues and concerns of each party. The mediator should not propose a solution, but should ask questions of the parties designed to elicit potential solutions.
To be successful in assisting the parties to invent options for mutual gain, the mediator needs to be aware of the barriers that restrict option development. Such barriers may include making premature judgments, searching for a single solution and assuming that one party must win while the other must lose. The mediator can assist the parties in brainstorming by helping them broaden the proposed options, by searching for mutual gain, and by keeping the parties from dismissing solutions as unworkable during the brainstorming phase. The mediator should never strong-arm nor pressure one party or both parties in this procedure. Further, the mediator must remember that his/her role is to keep as many options open and should not make judgments or comments regarding his/her opinion of the merits of a proposal.
D. Insist on Objective Criteria.
Once the mediator has helped the parties focus on their interests, the next step is to help the parties agree on the objective criteria that will be used to evaluate potential settlement options. These criteria should be developed by each party prior to identifying particular options, and should address the interests of each party. Many times a party will know how to describe the settlement they desire, but may not be able to articulate the details of such a settlement. There may be situations when a need to develop objective criteria is not necessary if the parties readily identify options that are agreeable.
Use of objective, rather than subjective criteria, will allow the parties to fairly evaluate the settlement options. Objective criteria can limit the effects of reactive devaluation.*43 Moreover, parties are much more likely to comply with and carry through on terms of a settlement that they each view as legitimate, and objective criteria go a long way to providing that legitimacy. One example of the use of objective criteria is using past practice or industry standards as comparisons to the proposed settlement. Once the parties develop settlement options, the mediator can walk each option through the criteria developed at this stage to help the parties determine whether the option meets the interests of the parties.
Sometimes the objective criteria can become the settlement. Both parties, for instance, might be willing to agree to follow industry standards or other independent criteria. Once this agreement has been reached, the only thing that remains is to research the details of the criteria.
*42 See Roger Fisher and William Ury, Getting to Yes 97 (1991).
*43 Reactive devaluation is the natural act of automatically diminishing an idea because it comes from the opposition.