Intake Issues: Problems with Initiating Cooperation in Mediation (and How Co-resolution Can Help)

Why is it that people in crises run to attorneys and spend an exorbitant amount on litigation before inevitably talking to each other to settle their differences (and if they don't have the money to throw away on litigation that will largely not occur, then they often simply don't talk or settle their differences)?  Bernie Mayer asked this question in Beyond Neutrality (Jossey-Bass, 2004) ten years ago, arguing that the members of the public know about mediation and, despite this, take their conflicts to advocates before negotiating.

Why is this?  I would argue that mediation and litigation (another blog post) each face very important "intake issues."  These are problems in initiating cooperation that bring people to engage in destructive escalation of conflict before seeking cooperation.

The intake issues in mediation are the reason that mediation continues to be an unprofitable field in spite of what is a significant and system-wide need for facilitated negotiation.  Basically, mediation is a great process, but it is offered to the public in, what I argue, is a failed business model.  Consider...

In order for a mediation to begin, two sides of a dispute must:
1.  Recognize that they are in a conflict (many people react to the unpleasantness of conflict with avoidance and denial, and often only one party is feeling the pain of conflict and cannot motivate the other side to admit that there is a problem),
2.  Realize that their best option for addressing the conflict may be a negotiated outcome (many people in conflict have a skewed perspective of the situation, seeing only the positives on their side and the negatives on the other, and are therefore interested and confident in attacking the other side),
3.  Reach the desire to sit down with the other disputant (many disputants do not want to address the conflict with the other party because dealing with the conflict or with the other side directly is painful--I am always surprised at how parties who are in constant communication do not discuss the conflict between mediation sessions and in the lobby before and after a mediation), and
4.  Agree on a mediator and agree to split the costs of that mediator.

These four steps are nearly impossible to achieve.  If people are high-functioning enough to jump through these hoops to get to mediation, they are likely able to talk to each other to resolve or prevent conflict without the assistance of a mediator.

So, what happens?  Usually one party gets fed up with the conflict, approaches an advocate, attacks the other side, the other side runs for protection to their own advocate to counterattack, and then both side fight violently until a judge or their dwindling bank accounts motivate them to sit down with a mediator.  If one disputant runs to a mediator first, the mediator then needs to contact the other disputant (who is in denial/conflict-avoidance mode) and convince the other disputant to come to the table from a position of impartiality.

How can co-resolution help?  An attorney, mediator, or court-staff approached by one disputant can offer co-resolution (telling the disputant that they will help them with personal negotiation and communication coaching) and then that co-resolver's partner (the second co-resolver) can contact the other disputant and tell them what the first disputant is alleging/planning.  Then, when that second disputant inevitably reacts by expressing their side of the conflict, the second co-resolver can express empathy and explain the services he or she can offer the disputant in effectively persuading the first disputant of the arguments/positions/interests they are expressing.

People like advocates--especially people in conflict (they will cling to this assistance at the mere offer of it).  If you are an advocate, court employee, or mediator, consider offering co-resolution as an option for cases that are not appropriate for litigation but that cannot be talked into mediation.