As anyone knows who has faced the looming prospect of a possible victory or defeat in life, the last thing one lets go of is hope for a positive outcome. It is no different in litigation, and therefore no surprise that the enduring, intractable nature of hope presents itself in, indeed permeates, the negotiation process in mediation. And it affects all sides of a dispute regardless of position or which side will ultimately be proved right or wrong in the absence of settlement.
A mediator trying to tell someone they are wrong, or that their position is a losing one, early in a negotiation process – being evaluative – is predictably met with resistance. Rather than breaking down a barrier to settlement, such confrontative negativity more typically serves only to promote defensiveness and distrust, even if such a reaction is unreasonable, and even if the person might otherwise be reasonable and practical. This reality dictates that a mediator’s focus in the early phases of successful mediation is typically facilitative, with a focus on identifying issues, interests and possible solutions, and in the process building understanding, trust, and confidence about (and a positive emotional investment in) the mediation process.
This time-tested approach to mediation – facilitation before evaluation – is reality-based and enhances the prospects for settlement for all sides in the dispute.