In any sort of dispute, the mantra that mediation is faster, cheaper and less emotionally exhausting than litigation can give the impression that simply by choosing to enter mediation with the other party, you have practically solved the problem. This is reinforced by many mediation professionals who simply list the benefits of mediation over and over again without going into detail concerning the actual work and commitment that the process requires in order to be successful.
Positions vs. Interests
Most people enter mediation with very strong positions on issues. When it involves a family dispute or family law, these positions are very fixed and often very emotional. For example, in divorce mediation one spouse may have as a position that the other spouse not get one dime of support money.
The key in mediation is not to ensure everyone gets exactly what their positions might dictate – the key is to move people off of positions and towards the underlying interests they have in the matter. So, with the position stated above, the spouse’s interest is in financial fairness, or possibly revenge over perceived injuries. The subtle shift in vocabulary is a powerful tool in moving away from absolutes to negotiations.
Interests Equal Progress
The reason this is important is because positions tend to be unassailable – they are fixed and often illogical, and as a result, resist any logical attempts to shift them. If you can reveal the underlying interest behind the position, you can begin to deal with the real issue, which is often easily recognized as unreasonable or unsolvable.
It also shifts the conversation from convictions that are opaque and that serve to obscure motivations – meaning the conversation is premised on false assumptions in the first place – to the reality behind those convictions, which can be picked open, examined, proved to be true or false in either its parts or as a whole, and then negotiated over.
Everyone enters a dispute – especially emotionally-charged family disputes – with a set of positions they are determined to protect and champion. It’s human nature. The skilled mediator will be able to recognize positions for what they are and begin by challenging them and urging the disputants to get to the core of their interests in practical terms that can be discussed, allowing for compromise. Otherwise no true solution is possible, no matter how skilled the mediator is.
