by Thierry Garby, International Dispute Mediator, Paris, France

Thierry Garby is recognized internationally as one of the world’s pre-eminent mediators. Monsieur Garby is the founder and principal of Resolvers, a negotiation, mediation and mediation training firm based in Paris, France. Among his many distinctions and honors, he is a Distinguished Fellow of the International Academy of Mediators. A more complete biography may be found here.

I wrote Agreed! for exactly the same reason Einstein wrote his theory of relativity: there was something that did not work in Newton’s theory. There are lots of ideas which, in my view, do not work in what we are usually taught about negotiation and mediation.

I undertook to revisit negotiation and mediation in a way that would attempt to resolve these misconceptions.  Here are a few examples:

  1.   Is it right to suggest that mediation should start with opening statements (either orally or in writing)?

We want to bring people to consider their mutual interests but, by starting with opening statements, we anchor them in their positions.

We need them to feel satisfied at the end, but we start by making them even more angry at each other.

We need to find something else.

  1.   We should bring people to negotiate on their interests

Every other day we see people acting against their own interests.  They come up with outrageous claims to prevent the dispute from settling because they want revenge and do not truly care about the money.

Whatever we may do to get them to consider their interests, they will not listen.  They want to be able to keep on saying that they are right and the other party is wrong.

  1.   Emotions are treated as an impediment to finding an amicable and reasonable solution

We have all experienced situations where parties significantly reduce their claims once they have received an apology, empathy, respect or some other kind of emotional satisfaction.  This shows that emotions are not an impediment.  They are a substantial part of the dispute.

Moreover, they should be our first concern.  There will not be any reasonable settlement, not even any reasonable negotiation, before key emotions have been taken care of.  In other words, we need to take care of emotions before we deal with the substance of the disputes.

  1.    Should we have the parties agree on their disagreement?

Once again, by doing this, we anchor parties in their positions and generate negative feelings.

In every case where there has been a lengthy relationship, the parties apparently had positive feelings about each other.  The relationship usually remained happy for a while and then deteriorated.

If, instead of confronting the parties with their dispute, we would invite them to quickly tell us their story together, they could revisit their happy moments and express their needs (their emotions and interests) which brought and/or kept them together.  The same will happen when they describe their frustrations at a later stage.

By doing so, we will help them understand each other and give them a chance to consider mutually satisfactory solutions, rather than seek revenge.  I strongly believe that mutual understanding is necessary to allow parties to escape purely distributive solutions and to move toward cooperative or win-win solutions when they are possible.

  1.   Should solutions result from bargaining or brainstorming?

Only distributive solutions can result from bargaining.

Further, in my experience, it is extremely difficult to find creative and mutually satisfactory solutions from brainstorming.  Even with the help of the mediator, the parties are still too much stuck in their dispute to be imaginative.  Very little can be expected from pure brainstorming.

But the mediator should have a tool to help the parties find creative solutions.

I suggest that there are only five possible solutions to a serious confrontation.  By order of satisfaction of the parties’ needs:  the win-win solution (compatible interests), cooperation, distribution, renunciation and constraint.  (Check out my book for more details.)

The mediator should invite the parties to consider these solutions in the above order.  This will ensure that they find the best possible solution.

Most of these ideas of course imply that at least part of the mediation takes place in joint sessions.

I do not believe that my findings are as brilliant as Einstein’s, but they may be more practical.  In any case, I would like to share them with you.

Agreed! is available from the ICC Store.

© 2016 Thierry Garby (republished on this Blog with permission of the author)