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Considering the Role of Ongoing Relationships in Mediation

Susan M. Yates, November 18th, 2016

“Mediation is especially good for parties with an ongoing relationship.” This is axiomatic when it comes to mediation, right?

This weekend, I had an experience that shed new light on this old idea. I was at a sale of building materials. Although it was advertised as an auction, there were few attendees and so potential buyers simply haggled with the seller’s agent over the price of anything they wanted to purchase. While digging through boxes of tile, I had a front-row seat to the negotiations between the agent and a potential buyer over some marble.

The feints and parries were familiar to anyone who has mediated many cases.

“Well, I don’t know what these would cost,” said the buyer, trying to downplay her expertise and develop sympathy in the agent. But the agent responded, “Don’t try that dumb girl thing on me! I’ve dealt with you before. You are smart and you know what these would cost.”

“Look, I have other buyers who will give me what I am asking,” said the agent, trying to assert a BATNA. But the buyer responded, “Where? I don’t see any other buyers here!”

The agent also tried to make herself seem sympathetic, even powerless, with the plea, “The seller would have my head if I sold them for so little.” But the buyer replied, “You can do whatever you want!”

The potential buyer tried to make a small move look more attractive by changing the format of the offer to a total price, rather than a per piece price. But the agent turned the math back into price per piece.

They went back and forth on numbers with plenty of dramatic gestures and raised voices. Their eventual prices were $240 and $260.

And they both walked away from the deal over a $20 difference!

Why did these two experienced negotiators walk away from the deal? Discussing this with my friend (and fellow mediator) as we left the sale, we came to the conclusion that the deal was less important to either of them than establishing themselves as tough negotiators who would not give in. They had met on the negotiation battlefield before (and they saw it as a battlefield!) and knew they would again. Not reaching this particular deal was more valuable than reaching a deal would have been.

What does this mean for those of us who say mediation is good for parties with ongoing relationships? In this negotiation, the very existence of the ongoing relationship was what stood in the way of agreement. That serves as a reminder that ongoing relationships may make resolution more difficult to reach. Anyone who has mediated a divorce or a family business dispute has borne witness to that reality. But those involve parties with past relationships. In this case, the very existence of a future relationship made parties stick to positions.

Of course, in this situation there was no neutral third-party mediator available to assist. Neither my friend nor I had stepped up and offered our services, so there was no one to help them set aside their negotiation ploys and consider their underlying needs and interests. Even if we had, might we, as mediators, have focused on this as an opportunity for both of them to get what they wanted regarding the marble? That might have met our needs for a “deal” as mediators, but would it have met their needs?

I don’t think so.

In the end, I think they both got what they wanted. Their future relationship – conflictual though it will be – and their participation in the negotiation dance were more important to them than buying and selling that particular marble. By not reaching agreement, they proved another axiom of mediation: It’s not just about reaching agreement. In the eyes of the parties in this situation, they each walked away winners.




3 Responses to “Considering the Role of Ongoing Relationships in Mediation”

  1. Cookie Levitz says:

    Great story. I am very curious as to how they felt after walking away. Did they feel like winners, or did they regret their final stance after thinking about it? Wish you’d been able to tape it for show and tell!

  2. Kent Lawrence says:

    Wow. What an insightful real life story! If you want to do mediation right you can’t just crank it out.

  3. CD says:

    Great story and in this framing a powerful reminder that parties define success for themselves.

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