Strategies for Creative Solutions in Mediation
Here is some guidance on how to identify creative solutions to a mediated dispute, and how to apply these strategies. You can often help parties solve their mutual problems by bundling or unbundling issues.
Create unexpected benefits with a package deal
You may be able to create unexpected benefits by helping the parties explore package deals that address several unrelated issues. Some disputes, including the following, lend themselves to package deals and global settlements better than others:
Disputes between parties with multiple contracts spanning several months or years.
In personal injury cases, where insurance carriers are faced with limited coverage for multiple claimants. A global settlement mediation enables the insurance carrier to offer claimants the opportunity to settle their claim within policy limits.
This shifts the dispute so that it’s no longer between the insurance carrier and each claimant but is now a dispute among the claimants who are fighting one another for the fixed mediation pie of a single policy.
The parties can build trades into larger packages that satisfy both parties’ interests, and they can do so in two ways:
Incrementally: By adding smaller trades into an increasingly large package.
Jigsaw approach: By assembling already-complex trades, each of which is quite substantial in its own right.
When you have to deliver two lousy offers
Sophisticated disputants often present two offers, equally beneficial to themselves, simultaneously as an either/or choice. This puts the other party in the undesirable position of choosing between two equally bad offers instead of making a counter to a single offer.
Savvy offerees who recognize this ploy generally choose one of the two offers and counter it, holding the other offer in reserve so they can commence an entirely different negotiation in the event that the first one fails to satisfy them.
If the offeree isn’t so savvy and is angered at having been given two offers equally beneficial to the offerer, you have two choices, depending on your mediation philosophy (whether to coach the parties or not):
Help the offeree strategize. If your approach allows you to coach the parties, suggest that the offeree choose one of the two offers to respond to and hold the other offer in reserve.
Ask questions to reveal the source of the anger. As a transformative mediator, you may simply ask questions about the source of the anger and then let the dispute play out in a manner that doesn’t erupt into name calling, door slamming, or termination of the process.
Maximize win-win resolutions by unbundling issues
Dispute resolution rarely ends in the resolution of a single issue. When money’s involved, for example, the dispute is never solely about price. It’s also about terms — when and how payments are to be made, penalties for nonpayment, and so on.
Problems often arise when parties attempt to resolve all issues at the same time. When this occurs, you can often get the parties moving forward again by unbundling the issues.
For example, suppose two girls want the same orange. Mom asks each girl why she wants the orange. The first explains that she wants the peel to make candied orange peels. The second explains that she wants the juice.
Mom has successfully unbundled the one issue (disagreement over who gets the orange) to create two separate issues (who gets the peel and who gets the juice). Each girl receives what she wants.
Emotional issues are often similar to this scenario. One party may refuse to budge from a $20,000 demand against a moving company for damage done to his furniture because he feels that the moving company treated him disrespectfully when he called to complain. The issue of disrespect prevents the parties from resolving the payment issue.
By unbundling the issues and having the parties resolve them separately, perhaps resolving the issue of the indignity caused by the rude treatment first, the parties are more likely to overcome the obstacle that’s getting in the way of resolving the payment issue.