Last week I discussed the transition from exploration to bargaining in an employment mediation, the move from the preliminary skirmishing to the full-blown negotiation process. But surely the parties could do the horse-trading between themselves? True, and they sometimes do, but the growth in mediation as a dispute resolution tool in the employment arena is evidence that sometimes it just takes three to tango. This week I will look at some of the techniques which the mediator uses to push the parties towards each other:-
1 Reality Testing
This is a catch-all description of the process of encouraging a party to take a hard look at its own position to see if its assumptions about facts or risks or costs are correct. This is a delicate process – too much playing devil’s advocate risks the perception of loss of neutrality, that I am advancing my own thoughts on the merits, or surreptitiously pushing the other party’s confidential position.
Posing some external challenges are a necessary part of the mediator’s role, however, and a party may be willing to have that debate with the mediator where the same points raised by the other side would be dismissed just because they are raised by the other side.
2 BATNA and WATNA
These may sound like Japanese cartoon characters, but in fact they stand for Best (and Worst) Alternative to a Negotiated Agreement. Put shortly, these concepts are compared with any given settlement proposal to assess whether that proposal can realistically be beaten by other means. Taking an ordinary unfair dismissal claim as an example, the employee’s BATNA is obviously winning the claim. But though that might bring him some money, the quantum may be up for debate, he will probably incur irrecoverable legal costs and he will definitely face considerable stress, delay and potentially adverse PR also – and that is if he wins. So even the best alternative is not necessarily all that great. Turned on the employer, the WATNA will be to spend all those costs, put up with months of internal flak from managers who do not want to take the witness stand and will not necessarily be a safe pair of hands when they get there, and then to lose a possibly significant sum in compensation in the glare of a public forum. Even its BATNA (to win) carries all the same downsides except the compensation award. Against that, is a reasonable cash offer (even if the employer feels it to be totally unmerited) necessarily such a hard step?
Is the putting of a different spin on something said by a party with the intention of altering the message in it. A 75% chance of success can equally be described by the mediator as a one-in-four chance of losing. If a letter of apology is too much for the employer to swallow, perhaps an “acknowledgement of regret” would be more palatable, even though in practical terms it means the same thing.
4 Walking to the Balcony
Also to the abyss, precipice, etc., this is a similar technique to the WATNA but a little more “visual”. It involves encouraging the party to look out as if over a sheer drop and to contemplate the future, starting the very next day, if settlement is not reached. Are they really ready to take that leap?
In the end, these are all just tools in the good mediator’s armoury, all aimed at helping the parties distinguish between what they would like to achieve out of the mediation on the one hand from what they might just be willing to live with on the other.
Next week, effective negotiating styles in an employment mediation.