An earlier post briefly described a new form of dispute resolution called Guided Choice Mediation. That post described the seven core principles of Guided Choice. You can read that post by clicking here. In this post and those that follow we will explore how Guided Choice works and why I believe it has the potential to significantly increase the value of facilitated negotiation. In this post we’ll explore the why and leave the how to later discussion.
Eighteen years ago I attended the 40 hour Civil Court Mediation training and a little over a year later I was certified as a mediator for civil cases. Mediator training, at least back then, was based primarily on the principles outlined by Roger Fisher and William Ury in their book Getting to Yes based upon research conducted at the Harvard Negotiation Project. Although there is much more to it than this, the idea is to facilitate negotiation based upon the parties’ interests not positions. In a nutshell, barriers to resolution are much more likely to be overcome by addressing the underlying bases that created those barriers.
In Getting to Yes Fisher & Ury defines a party’s position as something they have decided upon; their interests are what caused them to decide on that position. Consider the following illustration from Getting to Yes: Two people are quarreling in a library because one wants the window open and the other wants it closed. The argument centers on opening it a little or more than that but neither is satisfied with a compromise. When the librarian asks each person why they have the position they do, one says he wants it open for the fresh air and the other wants it closed to avoid the draft. The librarian decides to open a window in the adjoining room, which provides fresh air without the draft.
In his important work, Making Money Talk, Andy Little argues that virtually every civil case mediation or settlement discussion becomes a negotiation over fixed monetary positions. In Getting to Yes terms, it becomes positional bargaining. In my experience as a neutral, I have had few mediations that refute Andy Little’s argument. In spite of this reality, every good mediator explores the parties’ underlying interests in attempt to help the parties craft a better solution.
Providing the opportunity to explore underlying interests is one of the advantages of Guided Choice Mediation. The idea is that the mediator’s role is not limited to a single day’s interaction with the parties who may be well prepared to present a hardened position to extract the best possible settlement. The guided choice mediator gets involved in the process early (before positions are hardened or at least before the parties spend a lot on litigation) before there is little or no room for reasonable compromise. At least as important as the potential cost savings is the mediator’s ability to really explore the obstacles to resolution.
Guided Choice Mediation requires a pro-active neutral and parties who are willing to accept a proactive neutral but the advantages far exceed any additional cost. In my next post in this series, I will explore how the process is implemented.