Useful articles on mediation
The overall aim of a mediation is to reach a settlement. The strategy that the mediator will use will depend on whether he or she is an ‘evaluative’ mediator or a ‘facilitative’ mediator.
Evaluative mediators will focus on ‘positions’, mainly the legal but perhaps also the other rights and wrongs of the dispute. A facilitative mediator will focus on the parties ‘interests’, ie what the parties want and, more importantly, really need.
I am primarily a facilitative mediator, with a bit of evaluation now and then. I find that the parties are much more likely to reach a settlement if they focus on their interests. By the time they come to mediation they have usually been at loggerheads on the legal rights and wrongs (their positions) for a long time, and have got nowhere. That is why they are mediating, and now it is time to try something different.
The purpose of this post is to explore in a little more depth what is meant by positions and interests. It is often said that interests underlie the positions of the parties, and it is only by getting to those underlying interests that one can begin to find a solution. A nice diagram demonstrating this can be found here.
An example of positions and interests in operation can be seen in the following case study.
The basic story
Mark and Fiona are in their 40s. Mark met Fiona shortly after his divorce. She has never been married. Their relationship blossomed and in due course they bought a house together. The total cost including all expenses was about £400,000.
Mark provided £200,000, a large part of which came from the sale of his former matrimonial home after settlement with his ex-wife. Fiona provided no capital. The property was put into joint names, with a mortgage of £200,000. It was an interest only mortgage. During their time together Mark and Fiona arranged their finances so that she actually paid the interest on the mortgage and he paid all the other expenses.
After a couple of years the relationship ended and Fiona moved out into rented accommodation and Mark stayed in the house. Mark, very quickly, formed another relationship with a younger woman who moved in with him. Mark and his new partner are now expecting a baby. Mark and Fiona are arguing over the house.
They agree that the property is now still worth about £400,000. As the mortgage is still £200,000 there is an equity of £200,000.
Their positions – above the surface
Fiona claims 50% of the equity (£100,000). It is all quite simple, she says: The house was put into joint names. So, her lawyers say, they are both joint legal and equitable owners. The house should be sold and the proceeds divided 50:50. That is her right.
Mark says the equity in the property is all his; that Fiona paid nothing to the actual capital of the house and taking into account all the circumstances it was intended that he should be the real owner. It was only put into joint names to get a mortgage. Thus, he feels he has a right to all the money.
Their interests – below the surface
Fiona needs £80,000 to buy somewhere else costing £210,000, including the costs of purchase and some money for furniture. Her parents have offered to lend her £40,000, which they won’t need back in the near future and she can raise a mortgage of £90,000. Mark wants to remain living in the house with his new partner and child. He has £60,000 in investments that he could use to settle the case and wants to limit any payment he has to make to that sum. That is the most he wants to pay out.
Apart from all those considerations both Mark and Fiona have deeper emotional needs. Fiona is deeply hurt and needs recognition. Mark has feelings of guilt, which he is not going to be able to deal with until all is settled. They are both desperate to do a deal and move on with their lives.
Mark agrees to pay Fiona £70,000. It wasn’t as much as she wanted and she will have to buy a house that is not quite as desirable as she hoped but at least she can now get onto the housing ladder, move on emotionally and hopefully find happiness at some point in the future in a new relationship. Mark has paid out more than he hoped but he can stay in the house, everything is resolved and he can move on in life with his new partner and child.
Their respective legal ‘positions’ had some effect on their thinking but at the end of the day Fiona and Mark were able to reach a deal because they have focussed on their ‘interests’.
Jane Gunn an experienced mediator, writer and mediation trainer, writes this in her book on conflict resolution “How to Beat Bedlam in the Boardroom and Boredom in the Bedroom”. as follows:
Many practitioners will find that scenario easy to recognize! They will have seen it with many of their clients (and in their own lives!). In moving from ‘positions’ to ‘interests’ it is invariably easier to make a deal.
Gary Webber – the case study is an amalgam of many cases