Mediation as a Negotiation

Mediation is, at its core, a facilitated negotiation. The mediator creates the conditions for the parties to negotiate effectively, manages the process and helps the parties identify and move toward agreement. But the negotiation itself belongs to the parties. How you negotiate in mediation, the positions you take, the movement you make and the way you respond to the other party’s proposals, will determine the outcome to a very significant degree.

This chapter provides a practical guide to negotiation within mediation, covering both workplace mediation and employment mediation. It draws on established negotiation theory and on the practical realities of how workplace and employment disputes actually settle.

Positions and Interests

The most important conceptual distinction in any negotiation is between positions and interests. A position is what you say you want. An interest is the underlying need or concern that your position is designed to address. These are frequently different things, and understanding the difference is central to effective negotiation in mediation.

A classic example in the workplace context is an employee who says they want a formal apology from their manager. That is their stated position. Their underlying interest might be a need to feel that their experience has been taken seriously and that the behaviour that affected them has been acknowledged. An apology is one way of meeting that interest, but it is not the only way. A commitment from the manager to manage differently going forward, a change in working arrangements, or a written acknowledgment of the employee’s contribution might all address the same underlying interest in a way that the manager finds easier to give.

Effective mediation negotiation involves moving from an exchange of positions to an exploration of interests. The mediator will often help facilitate this shift, but the parties themselves can contribute significantly by being willing to articulate their underlying needs rather than simply restating their position.

Opening Positions

In employment mediation in particular, where financial settlement is in play, the question of how to open is an important tactical decision. Opening too high risks entrenching the other party and creating an atmosphere of unrealism that makes movement harder. Opening at your bottom line leaves you with no room to negotiate, which is both strategically weak and practically unconvincing.

The conventional approach is to open at a position that is ambitious but credible, meaning one that leaves room for movement without being so extreme that the other party dismisses it as not serious. The right opening position depends on the specific facts of your case, the strength of your legal position, the other party’s apparent alternatives and the dynamics of the particular mediation.

In workplace mediation, where the focus is on a working relationship rather than a financial settlement, the concept of an opening position is less prominent. The parties are not typically making offers in the financial sense. They are exploring what changes would make the working relationship workable. The equivalent of an opening position in that context is the party’s initial statement of what they need to be able to continue working effectively.

Making and Responding to Proposals

Movement in mediation typically happens through a series of proposals and responses, sometimes communicated directly between the parties in joint sessions and sometimes transmitted through the mediator in private sessions. How you make and respond to proposals significantly affects both the outcome and the atmosphere in the room.

Making proposals effectively

• Be specific. Vague proposals are hard to respond to and often create more confusion than progress.
• Explain the reasoning behind your proposal where you can. A proposal accompanied by a clear explanation of why it reflects your genuine interests is more persuasive than a bare number or demand.
• Make proposals conditionally where appropriate. Conditional proposals, framing movement as contingent on movement from the other side, can help create momentum without committing you prematurely.
• Do not make proposals you are not serious about. Strategic lowballing in the hope of leaving room for negotiation can backfire if it makes the other party feel that the process is not being conducted in good faith.

Responding to proposals effectively

• Do not reject a proposal out of hand without acknowledging what it contains. Even if a proposal falls far short of what you need, acknowledging the movement it represents keeps the conversation going.
• Counter-propose rather than simply refusing. A counter-proposal signals continued engagement with the process and gives the mediator something to work with.
• Ask questions before responding where you are uncertain about what a proposal actually means or what it is intended to address. Misunderstandings about what is being offered are one of the most common reasons mediation stalls.

Managing the Dynamics of Impasse

Most mediations reach a point of apparent impasse, where neither party appears willing to move further and the gap between their positions seems unbridgeable. This is a normal part of the mediation process and does not mean the mediation has failed. It means that the easy movement has been made and that the harder work of finding a resolution to the remaining gap is about to begin.

The mediator will typically use a range of techniques at this point to help the parties move. These may include reality-testing, which involves helping each party think through honestly what their alternatives look like if no agreement is reached. They may include reframing, which involves presenting the gap between the parties in a different way that makes it feel more bridgeable. They may include exploring whether there are non-financial elements that could be added to a package to make it more acceptable to one or both parties.

From the parties’ perspective, the most important thing at the point of impasse is to resist the temptation to walk away prematurely. Many mediations that appear to be at impasse in the late afternoon settle in the early evening, when the reality of the alternative becomes more vivid and both parties’ desire to resolve the matter overcomes their resistance to making the final movement needed.

BATNA: Knowing When Not to Settle

One of the most important principles in any negotiation is knowing when not to settle. If the terms on the table are worse than what you could realistically achieve through the formal alternative process, whether that is a tribunal hearing, a continued formal grievance or something else, then settling in mediation is not in your interest. Your Best Alternative to a Negotiated Agreement, your BATNA, is the benchmark against which any proposed settlement should be assessed.

Assessing your BATNA honestly and realistically is one of the most important preparation tasks before any mediation. It requires a clear-eyed assessment of the strength of your legal position, the likely costs of pursuing the formal alternative, the time it will take, the stress and disruption it will cause, and the uncertainty of the outcome. Parties who overestimate the attractiveness of their BATNA frequently walk away from settlements that were objectively in their interest.

This analysis is covered in the context of preparation in Chapter 7 and is also addressed in the tips for workplace mediation and tips for employment mediation in Chapters 15a and 15b.

Important Disclaimer: This page is provided for general information purposes only and does not constitute legal advice. Nothing on this page should be relied upon in respect of your legal rights or obligations. Before taking or refraining from taking any action in connection with a workplace or employment dispute, you should obtain advice from a qualified solicitor or barrister with relevant expertise. If you would like advice on your specific situation, contact Robin here.