Paths to Resolution

Negotiation v. Mediation

Negotiation and mediation are both methods used to resolve disputes, but they differ significantly in their processes, roles, and outcomes. Here’s a more detailed comparison to help clarify the distinctions between the two:

Negotiation: Negotiation is a direct dialogue between parties aimed at reaching a mutually acceptable agreement. It involves discussions where each party presents their interests, needs, and proposals to find common ground.

Mediation: Mediation is a facilitated negotiation process where a neutral third party, known as a mediator, helps the disputing parties communicate and negotiate their differences. The mediator does not make decisions for the parties but instead guides the process to help them reach their own agreement.

Key Differences

Aspect

Negotiation

Involves only the disputing parties.
No third party is involved; the parties negotiate directly.
Decision-Making Parties make decisions collaboratively or independently with no outside assistance. The mediator aids in the process but does not make decisions, but can maintain a peaceful atmosphere that is conducive to resolution.
Primarily on the interests and positions of the parties involved.
Confidentiality depends on the parties’ agreement
Emotional Dynamics Can become adversarial if parties are emotionally invested. The mediator helps manage emotions, making for an even playing field, aiming for a collaborative atmosphere.

Aspect

Mediation

Involves disputing parties and a neutral mediator.
A mediator facilitates the discussion and helps manage the process.
The mediator aids in the process but does not make decisions, but can maintain a peaceful atmosphere that is conducive to resolution.
Focuses on improving communication and understanding, providing additional explanation, exploring other options.
Mediation is typically confidential, encouraging open communication. Such communication cannot be repeated in court.
The mediator helps manage emotions, making for an even playing field, aiming for a collaborative atmosphere.

Negotiation has a higher chance of being successful when the parties have a strong relationship and can communicate directly. That is one of the biggest roadblocks to negotiating a divorce. Generally, negotiation is only successful when both parties have an attorney. Any direct communication between the parties will have limited success.

Mediation is the preferred method when the parties struggle to even communicate with each other, thereby hindering any meaningful discussion. Strong emotions add to the complexity of resolving any issues. Having a neutral third party to control tone of the conversation and also give added ideas and direction makes all the difference.

Mediation Works When Negotiation Fails

You might have a nagging question in the back of your mind, wondering how can mediation work after negotiations have already failed? This is actually a quite common scenario, so let’s review.

That scenario can be compared to two tourists who booked a sightseeing tour. Upon arriving, they get in the tour van and soon find they are the only paying customers as they sit there alone waiting for the tour guide. There are a lot of sights to see and as they wait for the tour to begin, they begin discussing which sights they should visit first, as there is not sufficient time to see them all. The two cannot agree as one tries to convince the other that what they want to see is more important than the stops the other wants to make. They ultimately get so angry at each other they decide they don’t even want to go on the tour with the other.

As they are about to leave, the tour guide arrives. The tour guide, seeing the problem and having some knowledge of what places they might enjoy seeing the most, calmly makes some suggestions, including positive reactions from other tourists who have previously visited these same locations. After a while the two tourists calm down and realize there are some sights that they both would like to see; that seeing those sights would be better than leaving and seeing nothing. They sit back down and complete the tour under the direction of the tour guide. Both are satisfied with the results even if they did not get to visit all the sights they wanted.

The guide/mediator was familiar in dealing with people who wanted more than they could get, ultimately persuading them that it was in their best interests to see some of the sights that day, saving them time and money over trying to see all the sights they wanted on their own. The tour guide was also aware that it would have been very difficult for either tourist to have seen all the sights they wanted to but was able to guide them both to see the sights they desired the most.