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In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle.  This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, in fact, negotiations in mediation become an exchange of offers and demands that (hopefully) are moving toward each other, what is the value added by a mediator?  Can’t the parties simply exchange these numbers without the benefit of mediation?  As a practicing litigator and mediator, the theoretical answer may be yes but in practice negotiations rarely progress without an active, neutral intermediary.  Given the practical reality, how does mediation and a good mediator affect the dynamic so profoundly? In my experience, the primary value of mediation is that it facilitates the flow of information.  We

One of the primary tenets of Roger Fisher and William Ury’s book “Getting to Yes” is that negotiations should focus on interests not positions, i.e., avoid positional bargaining.  Positional bargaining takes place when each side takes a position, argues for that position, and reluctantly makes concessions from the opening position.  Fisher & Ury instead contend that wiser and more efficient agreements are reached when the parties identify their underlying interests and not bargain based upon positions. Although Fisher & Ury are undoubtedly right, by the time most civil disputes get to mediation, it can be difficult to see the underlying interests because the positions have become so entrenched.  In many cases the parties cannot identify their own underlying interests because they have focused on the the position for so long.  In addition, even though the “principled negotiation” methods developed by the Harvard Negotiation Project and described in Getting to Yes