Every mediated negotiation oscillates between certainty and uncertainty. Parties seek certainty although very often they’re besieged by doubts. People entering discussions encounter jealousy, which is just another word for fear, though fear expressed in a very low level of intensity. The reason they’ve come to a mediator is because they didn’t feel able to reach a negotiated result by themselves.
Hence, a mediated discussion is already, almost by definition, a discussion that has either gone wrong or hasn’t started or that has a doubtful prognosis.
Throughout the course of most people’s lives, they’re negotiating at different times for a variety of things and millions of discussions are accomplished daily without needing the intervention of an experienced mediator. Thus from the beginning we see a mediated negotiation comprises elements of difficulty that have led the parties to be ready to spend money on the services of a specialist in the specific field.
Generally speaking, a party has to experience doubt to be able to reach a mediated solution. The experience of uncertainty is uncomfortable. The experience of certainty is far more pleasant. Folks seek certainty to be able to prevent the pain of uncertainty. A party to a negotiation has generally achieved a measure of certainty concerning the position they are taking, and that certainty which is a psychological condition is augmented and buttressed by all types of sorts, factors, feelings, emotions, attitudes and arguments, all of which are mental conditions.
However, the nature of a negotiation is that a mutually satisfied outcome can never be attained unless each party is ready to change position. Such change involves movement from a well-fortified place to a position of uncertainty.
The process of moving from one place to another is emotionally taxing, which explains the reason why the existence of a mediator can be of great aid and comfort. Whenever the parties have arrived at a different place, they’ll dig in with all types of disagreements and concerns, psychological thoughts and attitudes, and they’ll gradually or rapidly attain a level of certainty about the new position they’ve now assumed.
It might be necessary for the parties to move position many times before they get to the zone of potential agreement. That’s the reason they need to oscillate between certainty and uncertainty over and over, and that’s the reason a lot of people would rather resort to battle, precisely as it’s possible to go into a battle without ever needing to change ones’ head or go through the sort of mental tension that’s involved with changing ones’ mind.
Many organizations including government departments where the procedures for taking decisions are institutionalized and awkward, find it easier to leave the decision up to someone else rather than undergo the stress and trouble of taking decisions .
Many cases go to trial because one or both of the parties are just unwilling to take part in the tough task of negotiating a settlement. The job of the mediator, if these parties are ready to enter into mediated negotiation, is to help them overcome the internal obstacles to achieving the changes required to avert a third party result.
Obviously, many times the reason a matter proceeds to trial or other battle is because one or both of the parties have simply misread the situation in fact.
All discussions have an internal and an external aspect. The internal part is the person’s own subjective reactions to what’s happening. The external reality is what the legal system is intended to deal with; in actuality, the legal system is designed to squeeze out of this procedure all mental or psychological reaction and also to delineate only the facts which may be adduced in evidence that are relevant, that is to say, which have an effect on the legal issue presented to the court. But here too, the mediator has a very important part to play, in being a sounding board against which the parties can examine the truth of their own opinion of this circumstance.
Therefore we see that parties can have a distorted view of reality, along with having improper emotional attitudes to the issue. This is known as the difference the true negotiation and the shadow discussion, and the specialist mediator has to be expert in dealing with these various aspects.
this manner, the job of the mediator is much more complicated than the task of a court, which has had all of the emotional side of it squeezed out from the rules of evidence, so that a sterile problem can then be presented for a legal settlement. However, such resolutions tend to be unsatisfactory to either side, and they’re always unsatisfactory to the losing side.
Although mediated discussion is difficult, and frequently far more stressful on the parties than a trial , nonetheless it’s the amazing benefit that it causes a solution arrived at by the parties themselves. Such negotiated resolutions are a lot more stable. They not only lead to finality, but also in a release of emotional burden on each side. They are thus a healing experience, and to this degree are a much more civilized and sophisticated way of resolving disputes than the legal system, which merely declares a winner and a loser.