What Do Mediators Do?

The Mediator’s Role in Negotiation 

Experienced negotiators might reasonably ask what a mediator can do that a skillful negotiator cannot.  Here are three (of many) things a mediator might add to the conversation.

Neutrality  

No matter how objective you think you are being, you are going to have blind spots in a dispute you are directly involved in.  In some cases, the other side may withhold information that is sensitive or embarrassing, making it impossible for you to see the whole picture.  They might be more willing to share that kind of information with a neutral third party.  Because of this, and without disclosing the details, a mediator might be able to help you work around an obstacle you never saw.  Examples include obligations to people not involved in the dispute, cash flow concerns, or relationship dynamics within a family or business on one side of the dispute.

Centering

Although mediation can help with early and relatively small disputes, a mediator is often not brought in until all parties to a dispute have firmly staked out opposed positions.  If a lawsuit or arbitration has been threatened or filed prior to mediation, the parties’ positions may be getting further apart as each side systematically looks for potential claims and counterclaims, broadening the dispute from its original scope.  A mediator can often help parties reevaluate what is needed to resolve the actual dispute, recentering the conversation from extreme positions. 

Space
Sometimes a party’s behavior is not conducive to productive conversations.  Emotional outbursts, yelling, threats of escalation—these might be personality traits, but they could also be situational behaviors born of stress and uncertainty.  On the other hand, some people respond to stress by withdrawing from the conversation, watching instead of participating.  Withdrawal can also be a barrier to exploring settlement possibilities.  A mediator can work with parties separately, in lower-stress situations, to clarify needs and expectations and moderate the conversation between the parties.

When an Outside Perspective May Help 

A neutral third party can help identify and work around barriers to settlement that might be difficult or impossible to resolve directly, even if all parties have skilled negotiators involved.  If you are stuck, a skilled mediator may be able to help you reset the conversation, even if the other party seems completely unreasonable.  Mediators use a variety of techniques to help restart, reframe, and reposition negotiations, keeping the parties focused on the task at hand.  Sometimes, what you need is not better negotiating, but an outside perspective from someone who can work from a place of trust and cooperation with each of the parties.

A Practical Next Step for Stalled Negotiations

Foust IP Law provides mediation and dispute prevention services for parties seeking a structured process to address barriers, clarify concerns, and evaluate possible paths forward in business and technology-related disputes.