Discover and Invent Solutions in Mediation

Most mediated problems have numerous solutions, and good ones can be invented. When people collaborate they can solve nearly any problem imaginable. All they need is the creativity to discover a viable solution and resources to execute it. Collaboration provides both.

Negotiation itself is an effective problem-solving tool, especially when the problem is the parties’ inability to divide a fixed mediation pie. So don’t overlook negotiating strategies, including framing, anchoring, and logrolling; and presenting reasons for the parties’ demands and offers.

Check each item off the list as the negotiation proceeds. Although these negotiating strategies may not produce the desired outcome, the failure to engage in any one of them has the potential to undermine the entire effort by neglecting a party’s concern or simply failing to pursue all available resolution pathways.

Probe the problems for solutions

You can often discover a solution by digging deeper into a problem. For example, suppose a person who feels that her employer unjustly terminated her employment complains that she can’t find a job. Upon further discussion, you discover that she’s had several offers, but because she doesn’t have transportation to and from work, she can’t accept the offers.

The problem suddenly shifts from not being able to find a job to not having transportation, and with the change in problem comes a change in solution. The solution now requires the parties to brainstorm the transportation problem, which can be solved by earmarking some of the settlement funds for the purchase of a used car, finding suitable public transportation, carpooling, telecommuting, or a combination of these solutions.

As the parties describe their problems, ask questions to find out what the underlying problems are. These underlying problems may offer clues that lead to additional solutions.

Craft solutions using each party’s social capital

Social capital is the intrinsic and intangible value of the parties’ professional and social relationships, as well as their education, skills, and talents. Few people in conflict consider their own or their bargaining partner’s social capital as the means for making a deal, but this social capital can significantly expand the available options beyond a pure-money solution.

To assess the parties’ social capital, ask open-ended questions about what they do, where they work, which schools they’ve attended, what their hobbies and interests and family connections are, and so on.

As you converse with people about their lives, you often uncover hidden gems of social capital that may include potential educational opportunities, job leads, unique skills and training, family businesses, and network connections. Any of these intangible assets may be something that one party needs and the other can give at little or no cost.

Social capital is often very useful in resolving employment disputes, especially when the parties’ estimates of damages are impossible to bridge, as is often the case in alleged job discrimination. A dispute between an employer and an employee can become so bitter that re-employment isn’t an option. But the employer often has social capital that can substantially benefit the former employee and resolve the conflict.

An employer of a sheet metal worker, for instance, likely knows other employers in his industry that may need the services of just such a skilled worker. The employer may also be aware of training programs that can transform the worker’s sheet metal experience into a skill that’s in greater demand.

The employer may be able and willing to make introductions or even procure special favors for the employee, such as allowing the employee to audit a retraining course offered by one of the employer’s acquaintances.

In this era of growing social and commercial online networks, don’t overlook the value of online networks and the relationships they contain as potential sources of added value to one or both parties.

A party may try to use his social capital to threaten or bully the other party. For example, he may say something like, “You’ll never work in this town again!” How you deal with these bullying tactics is a judgment call. Many mediators don’t tolerate them, but some mediators have a hands-off policy and let the parties hash it out.