Mediation - Swapping Middling Middlemen for Maestros

By Ehsan Ali and Alnoor Maherali

Some clients are skeptical about mediation, even after prior negotiations have broken down or not yielded the outcomes they were hoping for.  Particularly among our business clients, there can be hesitation to bring in additional parties, as they worry this will only further complicate matters.  This can be a valid concern.  Many have experiences with middlemen who’ve added stress and complications to deals in the past without adding value.  At Venn Mediation, we have seen how an intermediary can bring value to a negotiation, and how they can go wrong.  And we have learned some of the differences between bringing a mediator into a deal versus other kinds of intermediaries. The following are ways parties can mitigate some of the problems with their ‘middlemen’ – and how mediation can bypass those problems completely. 

Keeping Priorities in Order

In many cases, bad experiences with middlemen come from mismanaged expectations and communication difficulties with one’s own representatives.  When one brings on a third party to offer technical advice or guidance, tensions can arise from the fact that the third party is looking at details relevant to their expertise while the client is looking at the big picture.  For example, when someone hires an attorney - they can be frustrated with some of the advice they receive; seeing it as short-sighted.  In truth, the attorney is offering their best advice to avoid risks. But they may not be considering opportunities that carry some risk. This disconnect can be managed by setting expectations early on about: (a) the scope of the guidance being offered, (b) the considerations, beyond the expert’s advice, that will weigh on the final decision, and (c) how to request additional feedback on options that appear suboptimal from the expert’s point of view.  

Communication is Key

When working with a third party representative - as in the case of a real estate broker, lawyer, or agent - people can become frustrated when the negotiation stalls or falls apart.  These delays can result from a number of factors.  However, in some cases the representative(s) can contribute to these difficulties.  And even stranger, delays and logjams can occur when the representative is just trying to be a good spokesperson on behalf of their clients.  How can this be?  

A representative negotiating on another’s behalf is in a difficult position.  In the best case, they simultaneously want to get their client the best outcome and justify their value to their client.  This can manifest in them bargaining hard about for every little thing their client desires.  But in doing so, they turn what was a friendly negotiation into a battle.  And enough of those fights can sour deals that could have brought value to both sides.

This can be managed by ensuring the representative has the most updated details regarding what the client is and is not willing to trade.  This minimizes the risk of mixed signals and allows the representative to bargain more effectively for the things that matter most.  Even when one is communicating effectively with one’s own representative, there can be situations where a deal seems impossible; where tensions are high and no one seems to want to budge.  It is here that mediation shines - as it involves a very different kind of person ‘in the middle.’  

How Mediation is Different

Mediation presents a key opportunity for negotiations that are stuck – even for parties reluctant to bring in (more) middlemen.  In facilitative mediation, the mediator is focussed on the best possible process – rather than driving parties to any particular outcome.  Mediators enable people to discuss the things most important to them in a safe, productive environment.  And mediation can enhance parties’ comfort in thinking through proposals and weighing options.  

Mediators are also unique among third parties in that they serve both parties during the session.  Their duty is to see if the parties can reach an outcome better than going another route (e.g. litigation).  Mediators are called in when a deal is in a difficult place, or when parties anticipate problems.  And a mediator’s value is in renewing communication between the parties and allowing them to reassess whether there is scope for a possible agreement.  This allows parties to be on two different pages, with different priorities, and still find common ground on which to determine how best to move forward.   

Mediators also recognize that timing is an aspect of the deal.  Though good mediators don’t rush their parties, they are conscious of the fact that time is money.  Parties who choose mediation tend to get a deal done more quickly than normal negotiations, and certainly quicker than protracted courtroom processes, would allow.  Self-determination is a core value of Venn Mediation’s process, and as such we work with parties to help achieve the outcome they’re looking for in the time they have to find it. 

Because of these features, parties who come to mediation expecting more delays from the ‘involvement of middlemen’ can be surprised and amazed by the progress they can make once they’ve involved a mediator.  In our view, that isn’t about us.  Rather, it shows how much parties can achieve once the communication difficulties and mismatched expectations have been identified and dealt with effectively.  The hallmark of a great mediation is when both parties exit the final session feeling better off than when they arrived.  And at Venn Mediation – our goal is to provide each and every client with a great experience. 

If you or someone you know is stuck in conflict, but a little reluctant to add a middleman, consider reaching out to Venn Mediation.  We are based in New York but are very experienced in online mediation and can work with people anywhere. Our trained mediators can help you openly discuss your concerns and assess your options.  Disputes can be difficult, but dispute resolution doesn’t have to be.  We’d love to help.

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