Negotiation is an alternative dispute resolution mechanism like “mediation”. In this mechanism, the parties negotiate to resolve their disputes without third-party intervention. If a facilitator is involved in the dispute resolution process, this is called “mediation“. Therefore, we can say that mediation is an “assisted negotiation” process. In the mediation process, “negotiation” is the stage during which negotiations and discussions take place, solutions for the relevant dispute are sought and evaluated through negotiations, and a consensus is reached regarding the solution. All the parties are granted equal respect and the right to participate, and they could also “disagree”.
Disputes often seem irresolvable to the parties. However, an effective and appropriate negotiation usually results in an alternate solution that benefits both sides.
Key Requirements for Mediation
Mediation should be carried out based on the principles of confidentiality, voluntariness, impartiality, and neutrality. Therefore, the mediator functions as a process manager that shows how to listen, question, empathize, rethink and, most importantly, find solutions from a new perspective, using special communication techniques.
For negotiations to be effective and successful, the parties must:
- Voluntarily participate in mediation,
- Acknowledge that the details of mediation are confidential,
- Be willing to negotiate,
- Intend to resolve the dispute collaboratively and independently, and
- Think of the mediator as a neutral, constructive, and guiding third party.
A basic attitude is also necessary to show respect for others and a desire to strive for both one’s own and others’ interests. When all the requirements are fulfilled, mediation can function as a reasonable dispute resolution mechanism.
Negotiation expertise is necessary for a mediator to become a good mediator by:
- Becoming more aware of “the tactics for the negotiation table” during dispute resolution,
- Having a better understanding of the negotiating parties,
- Improving themselves as to “when to step in” and “what to do” in a negotiation,
- Ensuring effective negotiation at the table and guiding the negotiators on “how to have a more constructive negotiation”,
- Increasing their “available tactics” at the negotiation table and filling their mediation toolbox.
Stages of Mediation
There are five stages in mediation:
- Preparation Stage: It is the first stage of mediation and includes the period before the actual beginning of mediation meetings. At this stage, the main goal is to prepare for the mediation process. The mediator gathers information and documents on the dispute and identifies concerns to be addressed while managing the process.
- Commencement Stage: The mediator initiates the mediation session with an effective opening speech to foster mutual trust and comprehension of the process. The basic rules are identified and agreed upon at this stage. The parties are informed of the principles, characteristics and benefits of mediation, and they are assured that they will be treated fairly and given the opportunity to express themselves. They are encouraged to respect one another and have a pleasant attitude. It is clearly stated that the confidentiality rule and mediation do not prevent one from asserting personal rights.
- Investigation/Inquiry Stage: At this stage, the goal is to identify the events, sentiments, and other significant concerns relevant to the current conflict, to determine the settlement topics, and to define the agenda for the following stage. The parties take turns to speak and explain the dispute in their own words. Then, the mediator clarifies certain points and fills in any blanks, repeats the information acquired, imparts the emotions observed and builds trust with the parties. At this stage, the interests and needs of the parties can also be recognized.
- Negotiation Stage: At this stage, the parties negotiate their differences with the help of the mediator and attempt to achieve an agreement. The mediator encourages the parties to discuss solution choices, explain the practicality of each option, and try to solve the problem in different ways.
- Conclusion Stage: The goal at this stage is to effectively analyze the mediation process and its outcomes. At the end of mediation, the mediation outcomes are documented in writing, including the solution to the dispute and any additional procedure agreed upon with the mediators.
Language and good communication are essential in mediation. The more precise the wording used during mediation, the simpler it is to prevent confusion and conflicts. This includes asking precise questions. Responding to unclear statements with the right questions helps to clarify them. In mediation, precise, thorough, and open-ended questions are crucial. These are usually useful when participants need to get to the bottom of a problem. Thus, one of the main sources of a conflict, generalization, can be avoided.
Negotiation Strategies and Models
Although the normal outcomes of a negotiation are “win-win” and “win-lose,” settling disputes via discussions in a mediation process should use a win-win strategy. However, good faith alone is insufficient for a win-win scenario; the use of effective negotiation skills is also necessary.
The five primary negotiation styles to be used by the parties for dispute resolution are as follows:
- Competing
- Avoiding
- Accommodating
- Compromising
- Collaborating
Various negotiation models can be used in a dispute resolution process. One of these models is the “Harvard Negotiation Method“, which arose from the work of Harvard University’s School of Law and Business regarding dispute resolution strategies. According to this method, negotiations should respect four fundamental principles:
- Separate the people from the problem,
- Focus on interests, not positions,
- Invent options for mutual gain, and
- Insist on objective criteria.
These principles are critical for a win-win strategy.
Effective mediation is only possible if the parties are willing to negotiate on the subject of the dispute and the mediator guides the process by using suitable and effective negotiation tactics. If one party is simply concerned with being right and winning, mediation will be ineffective, and the negotiations will be fruitless. Therefore, negotiations should be carried out under the guidance of a professional team that is knowledgeable about suitable and successful negotiation strategies.
Hilal Yayla, Associate
Sources:
Prof. Dr. Josef Neuert – Justizprojekt, Integrierte Mediation am OLG Koblenz 12/2009
https://www.in-mediation.eu/wp-content/uploads/neuert-evaluation.pdf
Arabuluculukta Tarafsızlık İlkesinin Görünümü ve Etik Kurallar Çerçevesinde Değerlendirilmesi – Seda Özmumcu
https://dergipark.org.tr/tr/download/article-file/748060
Department of Mediation-Temel Arabuluculuk Eğitimi Katılımcı Kitabı
