Mediation and Negotiation – Misuse Of Words Is “Problematic” (What?)

Misuse of words is relatively common; we can all do it. Case in point: a U.S. Senator did it the other day when he complained that some of the money generated by Cuban tourism ending up in hands of the Castro government “is problematic.” It seems obvious, in context, that his intent was to express strong disapproval, but his words did not match or accurately convey his intent.

The word “problematic” actually means “in the nature of a problem; doubtful; uncertain; questionable.” Its synonyms are “puzzle, riddle, enigma,” and its antonym is “certitude.” The root word “problem” describes a question, not an answer. Technically, neither the word “problematic” nor its root word “problem” constitutes a conclusion of disapproval. This misuse of the word “problematic” no doubt relates to the similar and oft-used phrase, “I’ve got a problem with that,” by which people mean colloquially that they disapprove of something. Okay, so it’s no big deal when words or phrases are in general colloquial use, and even when misused, people know what you are trying to say. However, a more precise word usage and phrasing is of utmost importance in pinning down the details of negotiation and the finalization of legally binding agreements.

In mediations, one of the mediator’s essential roles is to communicate between the parties with precision and accuracy so no unintended misunderstandings arise in the course of negotiations. This is why conscientious mediators take extra care to assure that they understand exactly what each party wants to communicate with the other party before transmitting the information. A classic example is the word “interest,” as in “We are willing accept in full settlement the sum of $100,000 plus interest.” Really? What type of interest – simple or compound? What recurring period – monthly or annually? By what legal measure – under state law or federal law? By what rate – statutory, contractual, CPI-U, CPI-W or some other?

All of these points need to be clarified as part of the effort to gain, and assure, mutual understanding of the meaning and intent of a word. The parties to a mediation need to know that they actually have reached the agreement they think they did.

Mediation: Thinking Outside The Box

The need to “think outside the box” or be creative in mediating settlement negotiations is reinforced in mediation training courses, and many examples are used to illlustrate the point. Here is a variation of one of the more clever ones.

A man left seventeen camels to his three sons, and indicated the oldest son should get half, the middle son a third and the youngest son a ninth. The sons were preplexed – 17 cannot be divided by 2, 3 or 9. So, they sought help from a wise old woman, who said to them, “See what would happen if you also got one of my camels.” They did as she suggested, and figured half of 18 camels would be 9 camels, a third 6 camels and a ninth 2 camels, and lo and behold 9+6+2=17 camels – problem solved! From Ury, Getting Past No (Bantam Dell 2007 ed.), at p. 159.

(Another solution would of course have been to agree to round up each of the remainders to the next highest whole number as they divided the 17 camels by 2, 3 and 9, but not as clever or as much fun.)