Mythbusting - The Goal of Mediation is to Get to a Deal

By Ehsan Ali and Alnoor Maherali

Mediation is a process in which two (or more) parties seek to come to an agreement or to resolve a conflict. There is a common perception that when the mediator enters the process, their number one goal is to get the parties to make a deal. While the purpose of mediation can be to get parties to come to an agreement, sometimes the best outcome is an agreement to disagree. Because as good mediators learn, walking away without a deal can be better than making a bad deal. 

In its most basic form, mediation is a ‘facilitated negotiation’. That is, when two sides are trying to come to an agreement, they are negotiating the terms for that agreement, and using a third party to help them negotiate. Mediators are professional, neutral third parties trained specifically to facilitate these kinds of negotiations.  However, at Venn Mediation we believe that mediation has the potential to provide much more utility than that. Under the right conditions, there is the potential to increase the ‘pie’ rather than just divide it so that both parties can leave with more than they were hoping for. We aim to create the conditions for both parties to achieve what they thought was impossible.

As such, we enter mediation sessions with different goals. We aim: (a) to create a safe space where parties feel comfortable expressing what brought them to mediation and what they are hoping to achieve; (b) to enable parties to listen and to better understand what the other party is trying to achieve; and (c) once parties understand each other, to help them explore possible outcomes, including those where everyone can leave the mediation better off than when they arrived.

Many people think that our most difficult cases are those where the parties dislike each other. But those situations can be mediated quite easily. We are trained to diffuse toxic dynamics and help people find their way through conflict.  In fact, some of our most difficult cases are those where the parties set out with the best wishes and intentions, but where an agreement is just not possible. In these cases, the desired interests of the parties do not overlap and thus what may be good for one party would be bad for the other. When this happens, a good mediator must overcome what is known as ‘deal bias.’ That is, to not view their job as finding - or forcing - an agreement. Instead, the mediator should help the parties determine how best to proceed, even if that means leaving the mediation without a deal.

Mediators are not immune to deal bias (or biases in general). Many people get into mediation because they want to help people create order out of conflict and find common ground. So much so that they can find themselves pushing parties towards an outcome without realizing that it may not be in the parties’ best interests. While understandable, this impulse violates a core principle of mediation - that the process is about self-determination. Unlike in arbitration or litigation where a decision is imposed on the parties, the purpose of mediation is for the parties to figure out what they want. This means that a mediator must overcome his or her deal bias and help parties to determine themselves what is best for them. This requires a great deal of discipline and attention to the core principles of mediation. And it’s what Venn Mediation seeks to provide in every case and in every session. 

From time to time mediations do end without a deal. This does not mean that the mediation wasn’t helpful. Rather, it generally happens when the mediator has helped a party to realize the maximum that the other side is willing to offer to them is less (or worse) than what they would end up with if no deal was reached. In these circumstances, no deal is the right deal for both parties. This is what makes mediation a process that has both parties’ best interests at heart, even if that means the mediator is unable to add another successful deal to their CV. In a well designed mediation, when a party walks away from the negotiating table, it is because they have had a full and fair opportunity to assess their options and are confident that is what is best for them at that time. They walk away with more information, a better understanding of the conflict, and a better idea of their options.

Good mediators, like at Venn Mediation, work with both parties to determine if an agreement is possible. And when it is, they help ensure that it is also sustainable. Disputes are never easy, but dispute resolution doesn’t have to be hard. If you or someone you know has a dispute that seems stuck, please give us a call. We are based in New York but do online mediations as well. We would love to help.

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