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Welcome back to the NEGOTIATEx podcast! The team is focused today on the differences between mediation and negotiation. In life and business, you’re likely to be involved in both.
The dictionary-style definition of mediation is: A voluntary, confidential, and informal process by which a neutral, impartial 3rd party facilitates a dialogue between 2 parties in conflict to help them resolve their dispute.
Aram has his own definition, though: “A facilitated negotiation.”
On a conflict scale, negotiations come first. These involve 2 or more parties who seek to work things out together.
Mediations are slightly higher up the scale. The parties require the assistance of a mediator to resolve their differences.
Mediation involves some process pieces that differ from your usual negotiation approaches.
However, it’s not necessarily an exotic situation, either. Many of us are involved in informal mediations every day at work. We just don’t always notice the fact.
Parents may informally mediate between children. Sometimes it’s necessary just to get everyone out the door for school on time.
Supervisors may need to mediate informally between employees in disagreement over project timelines, deadlines, and the like.
Formal mediations are fairly common, as well. Oftentimes, a married couple wanting to divorce will be required to attend mediation before taking things to court. Workplace union mediations are also formal and adhere to specific regulations and policies.
In either informal or formal mediations, it remains helpful to prepare, similarly to how you would for a negotiation.
It helps to be proactive. Reach out to the parties involved ahead of time. As a result of this pre-work, you should gain a better understanding of the problem.
Ideally, it should help you establish a rapport with both (or all) of the parties. The resulting ROI from that is, hopefully, a degree of mutual trust. An effective mediator must appear impartial and objective to all parties involved.
At the mediation table, you should set an agenda, introduce yourself and ask the participants to state their goals. Clarify the process as you do so.
Next, make it clear that participation is purely voluntary—and that everything will remain completely confidential.
From here, things should start to sound familiar: Hear from each of the parties; listen for their issues and concerns.
With these in mind, refine the agenda. This will provide an agreed-upon framework within which to operate.
The next step is simply digging deeper into everyone’s concerns. Prioritize them and take notes for later reference.
An effective mediator will listen well, and then restate or reframe what the participants have said, either to clarify and acknowledge, or to ensure the other party has heard them. Being able to hear each other through a mediator is often a benefit of having the 3rd party in the room.
Then help the parties generate options. Don’t shoehorn your ideas into things; listen and allow them to come up with their own solutions.
Keep the door open to caucusing, as well: inviting parties to meet with you privately to discuss their concerns or things occurring within the mediation. A good rule of thumb when caucusing is to meet with both parties and for a similar amount of time to keep things fair.
Throughout the process, seek to empower participants to figure out and resolve issues for themselves. The mediator owns the process and can ensure constructive outcomes by doing so in a disciplined manner.
Mediation isn’t like negotiating, in which we often have a personally desired outcome. The mediator simply wants the parties to find a reasonable outcome for themselves, work to remain neutral and impartial throughout a well-managed process.
Aram and Nolan have many more insights for you in today’s NEGOTIATEx podcast. Don’t forget to drop by negotiatex.com for more information and our negotiation prep tool, either.
Your time’s important to us. Thanks for listening!
Nolan Martin : Welcome to negotiate X podcast. I am your co-founder and cohost Nolan Martin. And with me today is my co-founder and cohost as per the usual Aram Donigian. How are you doing today, sir? I'm good.
Aram Donigian : Nolan. I've I've tried to change up my background a little bit. I'm getting feedback on the videos. People can only see me from the head up and I don't have much of a neck, so it's, I'm trying to take a step back from the camera. We'll see. We'll see what we think of that.
NM : It definitely is a step up. I'll give you that today. I wanted to talk about mediation. This is the question that we do often get as far as what is mediation, what is the difference between mediation and negotiation? And basically what's the difference? So Aram, let's start this off. Mediation, what is it?
AD : Yeah. So what is mediation? So Chris Moore wrote a book called the mediation process, which tends to be one of the lead texts on, on mediation in it. One of the things that I use when I teach the concept is this spectrum of conflict management resolution approaches. And so the spectrum really goes from high likelihood of a win-win solution down to kind of a decreased likelihood of a win-win increasing the chances of a win, lose sort of outcome. And as you go down that spectrum, you, you increase in coercion. So you would expect things like problem solving, negotiation and mediation kind of end on the places where there's less coercion, greater chance for a win-win that's where mediation. So it's a step up from negotiation, but we haven't gotten to, you know, arbitration or even litigation yet. And it's interesting. Some places in the U S mediation is required from the court systems before things go to litigation. The definition of mediation is a voluntary, confidential, and informal process by which a neutral, impartial, third party facilitates a dialogue between two parties in conflict to help them resolve their dispute. And while that sounds like a lot, the way I approach mediation is it is just a facilitated negative.
NM : Yeah. And I think that's kind of the key there. So especially when we talk about moving on the conflict scale, you have a negotiation, which is basically two parties that are able to work it out amongst themselves. And then we have mediation where the parties were not able to work it out by themselves. And now you're stepping in as kind of the middleman or, or woman in this case. So, yeah, I definitely think that the important part here is to kind of talk about the process, like how is the mediation process different than what we talk about sometimes for a negotiation?
AD : Yeah. So it can be very informal. Like we talk about with negotiation, there are informal negotiations and informal mediations as well. Every day at the workplace, we are likely mediating between coworkers who may have a very minor dispute. If you are a parent, good chance you are conducting informal mediations between, you know, battling children. And then, and then as it gets to be more formal, right? I mean, in the case of maybe a divorce and the court requires an attempt at mediation before it goes before the court, or, you know, if we talk about different union related mediation events that can happen in the workplace and different things that are happening that require a formal mediation process, then there's actually actually is a process. And it's important. It is important in the same way that we talk about the negotiation process and the role of preparation, and then getting to the table and setting the agenda and in kind of how you negotiate and then getting to the end and kind of assessing how you did and reviewing what mediations the same way.
AD : And so real quickly, I just, as I lay it out for what is kind of the mediation process, you obviously do some pre-work, there's some need to reach out to the parties involved. Again, oftentimes it's just two parties, but it could be more right. I mean, obviously we could mediate between more than just two parties. You're doing that to build some initial understanding of the problem as the mediator to help build some rapport and trust between you and the parties involved that they're going to trust you to kind of manage this process. Well, then you're going to come to the mediation table. You're going to open up the mediation by introducing yourself, making sure the goal for that mediation, whether it's occurring as kind of a singular day or over time is clear, clarify the process that you're going to follow. And that this process is completely voluntary.
AD : And it's going to remain confidential to be sure that you clarify what your role is, whether or not you're an offer legal advice. Typically mediators don't many mediators are not legal professionals. Although some can be that you're going to facilitate a discussion. You're going to try to lead them down a joint problem, solving path. You invite them to participate, take a role in that you establish some ground rules and you invite any questions. And then from that opening, then you go into things that are going to sound a lot, like what we do in negotiation, right? You're going to hear from the parties, what are the issues? What are their concerns? What are the causes of the issues you're going to use that to help establish an agenda. So as a great place to get some alignment between the parties involved up front, what are the topics that we need to discuss based on a understanding of the issues, then you'll dig deep into the concerns, those things we call interest, prioritize interest for the parties.
AD : Oftentimes it's helpful to record that work visually for, for the parties involved to see you got to help them generate options, and really you're gonna allow them to do that. And for them to refine rather than offering your own as needed in that process of pulling out concerns, you might caucus with both, or if it's more than all parties in which the caucus is a key tool of the mediator, which is to meet privately. So we're going to step out of the room and go to another private room and just talk about any concerns that can be really helpful. We'll talk about that as a tip for success and the advice there is a caucus with one party, typically caucus with both parties so that everything always wants to appear fair. And even, and then as we move forward, we can start drafting that agreement. And so that's kind of the general
NM : Kind of something that you brought up there is, or at least an example of what I think I'd like to share. Maybe it's helpful for some of our leaders out there is, you know, so my military career, one of my last more significant jobs I had was as a company commander. So as a company commander, it means that I have about 130 give or take soldiers underneath me in about three to four platoons. So in an organization where there's, you know, three or four different groups, there's a bunch of leaders, a lot of type a individuals tear is going to be conflict in me as the commander and with my right hand, man, my first Sergeant, we don't always want to get involved in that conflict. So even this, you know, directly correlates over to the business world as a branch manager or anything like that, like there's just conflict that you want to be resolved at the lower levels.
NM : So this is where the concept of mediation really comes into play. Because one, I don't want to set the precedent that I'm going to try and resolve all of the conflicts that occur within my organization. It's just not the business that I'm trying to get into. I want to empower them my junior leaders to be able to figure out their own issues and resolve them. So at the beginning of our relationship, when I first took over, I did this kind of mediation. I would take the kind of role where I'd, where I'd bring them in, understand the issues and kind of get them to work it out amongst themselves, but also to kind of stop it out there to be like, Hey, in the future, I will not be getting involved in this. Like I don't want to make platoon issues, you know, small group issues, big company issues. And, and that's kind of an example of mediation. Is that kind of the same thing that we're talking about here?
AD : So much of it is when, you know, when parties are in conflict, it really comes back to communication and just to break down and they're talking past each other that, you know, you have, you know, biological responses occurring, you know, people are getting, you know, an amygdala hijacked sort of event where they're being emotionally triggered. And so it's just very difficult for them to hear each other. And so a mediator can kind of help kind of, you know, reset that and just help get them to a different place. And I think what you're describing is a good example of that. I'll share an example too. I remember being a 25 year old platoon leader. So I was a Lieutenant very early in my career, about a year and a half into my career. And I had one of my sergeants who was 10 years older than me come up and just say, Hey, sir, you know, would you be willing to mediate a conversation between myself and my wife?
AD : And I said, I was like, uh, tell me a little more. And, um, I'm single, I'm 25 infantry. And I have no idea, uh, what it is you're asking me to do. And he, and what was nice was the compliment. There was, he said, Hey, you know, my wife's met you at a couple events. I trust you. She trusts you, we're having some issues. And we were just recognized that we can't seem to kind of talk through these things on our own. Would you be willing just to help facilitate the conversation? And so without having really any skill other than maybe some really care for, for this person and, and for his family and maybe an ability to ask some good questions and listen, that's really all I did incredibly informal. And they were able to really, you know, at some point I just kind of sat back and they had a totally different conversation than what I imagined they'd been having for several months just by having a third party present. And so I think going back to your example, Nolan, it's just kind of resetting the norms of how we're trying to resolve conflict. Yeah.
NM : So I definitely think that understanding mediation and kind of how it falls on the spectrum, when you're talking about conflict management and negotiations, I think it's always important to understand this is an option as a leader that, you know, during a negotiation you're side, a side, to get some sort of outcome, correct me if I'm wrong, but with the mediation you're taking in the neutral, you're trying to have trying to have more groups trying to figure it out on their own so that you, as it gets to you kind of really kind of knocked everything out early. And so I think it's just important.
AD : Yeah. You hit on a key there Nolan. So as we think, and then we'll start talking maybe a little bit about what effective mediators do neutrality and the appearance of being neutral is incredibly important. Both parties are, if, again, if there's more, the parties involved need to take some ownership of the problem and they have to trust that you're just going to manage the process for them and that you aren't trying to drive them towards a particular outcome. And so that could be in my case, I suppose the thing I had the most concerned with was would the spouse of the soldier truly see me as, as neutral, unfortunately, because I, you know, obviously I work with him every day. I'm his, you know, I'm his platoon leader. Fortunately though she knew me well enough. And I tried to reassure that from the get go. So that's, that is really important. We, as a, as a mediator, you're taking a step back and you're not part of the negotiation trying to negotiate an outcome for yourself. You're just trying to help them kind of get to their own agreement.
NM : Yeah. So now, now I think let's go ahead and kind of shift this a little bit and talk about, as you brought up, what do good mediators do?
AD : So we've hit on two. So one has maintained that that's a stance of neutrality. Another is to listen and really listen really well. That's actually more important than trying to be thinking about whoa, what solutions could they come to, but listen, and be able to create that sort of forum for dialogue and allow them to come to their own solutions. There's just so many inputs coming in as you're listening to both sides, perspectives that the ability to hear and then be able to reframe, because again, part of the initial problem that these parties have is they're talking past each other, not hearing each other. So the hope is that a mediator can potentially reframe what one party is saying. So the other party maybe hears it differently than they've been saying it. And so summarization skills can be really helpful. I want to check in with what we've heard and to be able to summarize that. Now you both have said some great things. I want to ensure that we're hearing each other, you've heard each other and be able to, again, kind of go down this path of some summary and some, some reframing, you know, when someone's frustrated and be able to say, sounds like you're frustrated Nolan because, or it sounds like what's really important to you is this and your saying it versus the other side is saying it and they both get to hear that. Again, those things are really important around communication and listening.
NM : Yeah, I think so you just kind of jog my memory here and it's completely not the educational response to that. I'm sure you're coming up with, but kind of reminds me of like my mom, she used to call it the stupid kid questions. So like whenever we were in Italy, because I lived in Italy for a few years, I lived in Germany for a few years. She would always be like, Hey, hang on, go, you know, cause I'm nine or 10, go, go up and ask, you know, do you have to drive really have to pay for, to use the bathroom or, you know, some other stupid kid question. And so I think as the mediator, you're kind of hashing out those, you may be asking the stupid questions to be able to really understand what one of the parties is trying to say. So you saved the other party from having to ask about it or put the other person on defense, or basically you're being viewed as neutral because you're asking the questions to really be able to facilitate the process. So I don't know if that applies, but it's definitely something that just kind of thought of
AD : It does. Yeah, it does. It certainly aligns with places where like, when I was deployed to Afghanistan where we just wanted the parties to resolve some issues they had, and this could have been, you know, some government parties. And so we just wanted to have them, have them have a different conversation that would have been our success. And me being able to be the person asking those questions and being wrong in my understanding was much better because, because it took, it took that off of each other and that them having to do that, I'll tell you, and I know we'll get back into other, you know, tips for being successful as you do this. But we moved to New Hampshire about two years ago and my oldest two daughters share a room and they're on the kind of the other side of the house from us.
AD : And, and so they kind of had a little more independence than what they had. And anyways, there, they have very different personalities. One would prefer to stay up late. The other prefers to get up early when it comes to room cleanliness, I have one who is, everything is dress right dress in order organize, you know, books organized alphabetically. And the other is kind of, you know, take the clothes off and wherever, wherever, wherever the clothes land, that's where the clothes belong, free spirit, a very free spirit. Yeah. And that's, I mean, that's just kind of the tip of the iceberg. There's very sort of different personalities and it, it really started to come to a head after just being here for a few weeks. And so my wife and I decided, Hey, you know, could we try to put into practice some of these skills that I, I supposedly have, but, but seems so hard to practice.
AD : Sometimes we, we sat the two down and we, we really kind of walked through it silly is that my save and sound is of the listeners on the listening. We actually sat them down and said, Hey, let's go through this. You know, what are your concerns? What are the major issues? Do you see other solutions other than just kind of, you know, bickering or fighting or yelling, could you imagine, what would this look like in success? And then being able to play back for them, what they're saying. And what's amazing is all of a sudden they're like, well, that doesn't sound so unreasonable, right? It doesn't sound so unreasonable that maybe I could pick up, you know, my, my sweater after I've taken off and just throw it on a hanger so that the room's not constantly becoming a disaster. Maybe, you know, it doesn't sound so unreasonable that if someone's trying to sleep, but I don't have to have the overhead light on, I could have a lower light. And so it's, again, I think a key piece for a mediator is to just create that forum for dialogue and everything you're doing is very intentional around, around doing that.
NM : You said that you made it to New Hampshire two years ago. So, so how has the last two years been for?
AD : Oh yeah. Good question. Right. Cause you want to know if it was a success. So we actually ended up with a multi-page agreement. They came to all the terms, believe it or not, we had them cited add to this day, it's working. I can share with folks a lot of my parenting failures, but this has actually been a parenting success. And I really think the key to it is my wife and I didn't dictate to them any of the terms they put them in for themselves. And they've chosen to kind of live into, live into the agreement, which is really important. So let me get back to some of the keys, the key things affected mediators, do they have to help protect the parties from themselves, right? They can't, you're trying to help protect parties from, from hurting themselves. You have to find a way to help the parties treat each other with respect, treat them as they would want to be treated and really be able to, you know, manage whatever hurt has occurred. So there can be, you know, some healing and resolution. I think those were some of the keys to, you know, what my wife and I were able to do with, uh, with our kids. And even with some of the conversations we had with folks in Afghanistan, some of that, some of that same story.
NM : Yeah. So one thing that I think is pretty important is that as we start to talk more and more about the differences between mediation negotiation, we're also starting to see kind of where you, as the negotiator, you've built this framework of how to negotiate, how to be an effective negotiator. You can kind of see now by remaining neutral that you're still coaching the process. And although we've only talked about the differences between mediation negotiation, I think that we're also trying to start to see how they are similar in many ways. I mean, does, does that make sense at all?
AD : Yeah. So ownership a process, you will be, you'll be more effective mediating if you establish ground rules up front and then you own that process throughout. So what does that require one you probably want to get really well-prepared before you do this. There's a golden opportunity as my friend, Jeannie Franklin, who is a very skilled, much more knowledgeable person and mediator than I am, she's in Virginia. And she she's been a time. Mediator will say, there's a golden opportunity to lay the foundation for productive conversations in preparation. You had to do that well, you've got a good mediator's going to have to, as they manage that process, be very unselfish and humble and continue to keep people come, bring it. Let's come back on track. They need to enable to know how to use things like the caucus to take a break when you need to take a break and talk to individuals so they can kind of protect themselves and not feel embarrassed that will help build credibility, which is so again, the mediator has to be able to maintain that you can't, you can't appear biased.
AD : Uh, the parties must be very comfortable with their mediator. You've got to elicit enrollment from the get-go around the agenda and the issues, and that that comes back to process because when, when we start to get off track and the mediation will undoubtedly get off track, at some point, you gotta be able to remind, Hey, here's what we said we were going to do. And I think that you have to just have some really good instincts when it comes around, being able to listen and learn and have a genuine interest in people and respect people to do this
NM : Well, two. Yeah. So now I think it's a good opportunity for us to jump into the action items. You know, the whole point of negotiate X is to elevate your influence through purposeful negotiations. And although we're talking about mediation, I think that's definitely applicable to understand how these same skills that we learned about being a negotiator apply to mediation. And I just spoke about that, but Aaron, what are some key takeaways for our listeners to be better at understanding mediation?
AD : Uh, you will mediate some disagreement at some point. That's not a question of if it is, it's just a matter of when you will. And so as you're doing that, be patient be unbiased, listen really well and manage the process. And then the other piece that I would add is, you know, where there's an opportunity to get prepared, use that opportunity to get to know the parties and their concerns and for them to get to know you and you're going to be, you're going to be that much more successful.
NM : Yeah. Awesome. So I think my key takeaway is that you, as a leader, need to understand that a mediation tool is definitely a tool that's that's in your backpack. So what I'm trying to say here is you don't always want to be the one that has to make the decision. You want to empower your subordinate leaders to be able to come to some agreement. So if you need to help them understand how they can communicate and how they can work this out amongst each other in your organization, then that's the kind of role that you should take, but don't let this be a habit to where they aren't starting to catch on that. They need to work this out at their level. So definitely learn how to apply the skill because it's definitely a skill and constantly work to improve the organization all the time.
NM : I think that's kind of the goal there. We always kind of talk about and what you have learned in your military career, you know, every day, you're trying to improve the organization to leave it better than how you got it. So with that, thank you for listening to the negotiate X podcast. I greatly appreciate it. I do want to kind of put in a few plugs here. One is, if you're not on our LinkedIn company page, please go ahead and follow us now. So that's where we put out unique content like infographics, short videos, et cetera, that we obviously can't share during the video podcast. Or if you're listening during the podcast, the infographics are going to help you visualize some of the concepts that we teach. So be sure to follow us there. And then the YouTube channel, this is a place where you get to see the snippets. If you don't want to listen to the entire podcast is where we basically highlight specific sections of the show that may be beneficial to you and your organization. You can easily share this with leaders in your company to help them become better negotiators. So I greatly appreciate you listening. Thank you very much. If you have any questions you want us to cover, you can send them to email@example.com and we'll be sure to cover them in future episodes. And with that, I will see you in the next episode.
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