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When mediating we often have to ask ourselves, what is blocking the parties reaching a settlement or resolution of the dispute?

Conflict is usually viewed negatively, but conflict can be a positive force for good, driving change for the better, however it needs to be handled correctly.

Mediation is a process of identifying and bringing about that latent change waiting to burst out and transforming relationships!

Effective resolution is sometimes difficult however because there are strong opposing forces lined up against change and resolution-the so called “barriers to settlement” which I propose to deal with in more detail. The mediator’s job is often to identify those barriers and try to help the parties to recognise and acknowledge those barriers.

Some of the barriers to effective conflict resolution include:

1. Communication Problems

2. Poor preparation

3. Poor advice

4. Lack of Advice

5. Lack of time

6. Lack of instructions / authority

7. Inaccurate assumptions and preconceptions

8. Cultural issues or language barriers.

9. Pre-determined outcomes

10. Personality

11. Power and Control

12. Not Blinking First!

13. Costs

14. Trust

15. Matter of Principle

Communication

Listen, we need to talk!  How many times has a frank chat helped to clear the air. Then the parties say “I never knew they felt that way/that was the issue” ! Poor communication Is undoubted the key cause of conflict in the world, but it is also the most significant barrier to resolving conflict.

It takes two to tango and no more so when communicating. Communication involves “active” listening and “active” speaking. Both listening and speaking come under intense pressure during conflict and can break down. How many times do arguments end in silence? How many times do the listeners “switch off” rather than listening.

Poor Preparation

It is a well known adage that proper planning and preparation prevents poor performance and no more so when negotiating. It is vitally important to spend time preparing thoroughly for a mediation whether as mediators or a party. You need to prepare in advance what your opening position and final position will be. A mediator needs to read whatever is available about the dispute and ideally speak to the people involved in advance, bearing in mind what likely sticking points will be. Doing this really saves time on the day as you can get straight down to business. Proper planning beforehand puts all parties in a much better position to discuss issues rather than be caught up in the emotion of the moment. No company would instigate a change in its business model without first researching and preparing a business strategy. Why should your personal life or a negotiation be any different?

Poor Advice

Mediators have all been in a position where a person doesn’t have very good advice or it seems to be wrong. This is always a tricky situation as you don’t want to undermine the advisor. Try getting the parties to analyse their position again and reality check. Also, you can try to bypass the advisor if you want to go beyond the legal principles of the case and appeal to the layperson’s common sense and commerciality.

Lack of Advice

The flip side of the coin is when someone doesn’t have any external independent advice at all and may not be able to correctly analyse the legal principles governing the case or not understand the litigation or mediation process. It is really important not to give advice as a mediator and I have often been asked “well what do you think?” Which is dangerous territory! You can suggest they take some advice or speak to the other party who can explain their view, and there is no harm in explaining the process.

Lack of analysis

Closely related to the above is a failure to analyse risk – something we are all guilty of. It is difficult to formulate an unbiased view of the risks we face. Somehow we always tend to think we are the exception rather than following the rule. How could a judge possibly disbelieve us? How could we possibly lose? Surely it won’t cost that much?

Lack of Time

it is difficult to make good decisions when under a time pressure but it is often the case that the mediation draws to an end and then the terms of settlement need to be finalised. Sometimes, for example in a boundary dispute, you won’t be able to finalise the terms until afterwards and a formal boundary agreement can be drawn up.  It’s important to keep an eye on time and don’t spend too long in each session discussing the weather!

Lack of Instructions or authority

The old chestnut – lack of instructions or authority. Many a time the MD sends along someone who doesn’t have authority to do the deal and has to make numerous phone calls at each stage. If possible get the power behind the throne to come along to the mediation. The people who come along really need to know their onions about the dispute in case they are challenged.

Incorrect Assumptions

People have preconceptions about what other people are like, often motivated by unconscious. It’s and prejudice. In a conflict conflict people question the motives of others involved and often come to a view about someone in the first 30 seconds. We tend to like people who are similar to us and resolving disputes with similar people we understand can be easier from a psychological perspective. This can lead to assumptions that are not always accurate. Often these assumptions are negative so they are either not discussed or disclosed in full. Once an assumption has been established it is difficult to break because an individual will interpret behaviour in a way as to reinforce and support their assumptions. So we tend to label a person as an angel or a devil based upon our prior experience and prejudices. It is difficult to break away and see a person in a new light. Try to give them the befit if the doubt and put aside or acknowledge one’s preconceptions and biases.

Pre-determined Outcomes

People see conflict as a barrier to change rather than a tool of change because they believe they know what changes are needed. Rather than see conflict as an opportunity to see others’ point of view or idea, people see it as a barrier to getting what they want.

These are just some of the major problems arising from conflict. Each conflict is unique and is determined by the situation, the personalities involved and the level of perceived risk/reward.

The longer a conflict goes on the greater the risk/reward. Conflict usually persists when there is either no change or change in the wrong direction, the longer the conflict runs the greater the need for change. Long-running conflicts are also more difficult to overcome, as barriers tend to snowball.

Cultural Issues / language barriers

Sometimes there may be a cultural issue or language barrier in which case it is important to ensure that the parties fully understand the process.

Personality

It is a good idea to try to assess the parties’ personalities to see how they are likely to react to offers and their likely approach to the case.

Power and Control

Some people use litigation as a means to continue contact with the other party and to use it to continue to control the other party. They may be reluctant to let go of the proceedings.

Not Blinking First!

It can be difficult sometimes to elicit the opening offer. No one wants to blink first. Sometimes a mediator can make all the difference as a party is more likely to accept an offer coming from a third party.

Costs

Legal costs can be a sticking point as a party may be unwilling to contribute towards legal costs of the other party. If they cannot be determined or agreed in the mediation you can separate it off as an issue.

Trust

It is very difficult to re establish trust when it has been undermined. One person said to me “trust is like broken glass. If you try to put it back together there will always be pieces missing” *Sharon Rausch

Matter of Principle

Often a party will say that they aren’t settling as it’s a matter of principle. In such a case try to focus on the other implications of not settling.

Barriers will always be a part of conflict. In a mediator a mediator must identify barriers and work to reduce their impact, thereby eliciting positive change and resolution.

To learn more and train as a mediator, why not sign up for a training course as a mediator. We are now offering training online and have courses in August and September.