Might we get better results in many of the tasks we undertake if we gave more thought to the way we do things before focusing too early on what to do? 

As mediators we know that spending sufficient time on the process of problem solving and negotiation pays dividends in terms of the content. There are a number of components to this sort of approach: 

  • Adequate preparation is a critical first step. William Ury has emphasised this is in part about saying yes to yourself and yes to life in order to allow you the scope to say yes to others. Saying yes to yourself involves taking a good look at yourself from a balcony, taking responsibility for your needs and thinking through alternatives before entering into negotiations. Saying yes to life includes how you frame the environment you operate in and the people you interact with and staying focused on what you can do now to meet the future needs of yourself and others. As Ury says you can’t change the past but you can change its meaning.
  • Alongside preparation, investing in rapport building based on respect for those involved and a separation of the people from the problem, is a crucial foundation to productive negotiation. This includes starting off by acknowledging and recognising where others might be coming from to enable engagement and to offer the best chance of any explanation of your own interests and needs being heard. 
  • Preparation and rapport building provide the platform for developing a deeper understanding of underlying issues, facts, feelings, concerns and needs from different perspectives, along with the testing of prior assumptions and a real focus about what a presenting problem is really about. 
  • This understanding provides the material needed for the creative development of ideas for moving forward. In order to avoid stifling creativity it is essential to give this stage enough space before beginning any evaluation of options and possible solutions. The contribution of different perspectives can play a vital role in this process. As Sarah Gilbert, who is leading the Oxford Covid vaccine research, puts it: “Discoveries are often made in the boundaries between disciplines.” 
  • Once a full set of possible ways forward are developed careful decision making can take place drawing on objective benchmarks and reality testing to choose options which can best address the needs and interests of those involved. 

This approach works in a mediation and negotiation context – does it have wider application? For instance, might a version of it help develop and strengthen bonds between organisations that want to move beyond a merely transactional relationship to work more closely together to deliver a more effective service? In these circumstances a lot of time and effort is usually put into designing structures and governance arrangements for the partnership, without anything like as much effort going into what might be called the human due diligence needed to build deeper understanding and trust between potential partners.  

Thoughtful relationship building will help provide strong foundations for future work. While it might involve some investment up front this should pay back over the longer term in terms of effectiveness and outcomes. It will also have efficiency and productivity benefits as the deeper the trust developed the less partners will feel the need to double check what others are doing.

This sort of approach and the skills involved might be a way of rebuilding the mutually supportive bonds that provide the glue and lubrication (if these aren’t contradictory) that allow societies to function.

In a recent book economists John Kay and Paul Collier argue that the rise of individualism has weakened these communitarian ties and resulted in a much more transactional approach to things, which has weakened the capacity of society to work together for common purposes. They draw heavily on their lifetime of work in both advanced and developing economies, “societies of selfish agents independently pursuing their own interests, in which all relationships outside the family or tribe were purely transactional, were not only among the poorest on the planet, but fated to remain so”. 

They are hopeful that the intellectual tide is turning away from the individualism inherent in some of the ‘rational economic man’ and ‘culture of rights’ approaches to economics and politics, which have become prevalent in recent decades. They see the future being characterized by a myriad of organisations providing a co-operative framework, working together for a common purpose and collaborating when scale is required. “A healthy society is a vast web of cooperative activity sustained by mutual kindnesses and obligations.” 

The tried and tested approaches developed by mediators around the world have much to offer the development and maintenance of such a future. As the song goes:

 It ain’t what you do, it’s the way that you do it

That’s what gets results


To make sure you do not miss out on regular updates from the Kluwer Mediation Blog, please subscribe here.

Profile Navigator and Relationship Indicator
Access 17,000+ data-driven profiles of arbitrators, expert witnesses, and counsels, derived from Kluwer Arbitration's comprehensive collection of international cases and awards and appointment data of leading arbitral institutions, to uncover potential conflicts of interest.

Learn how Kluwer Arbitration can support you.

Kluwer Arbitration
This page as PDF

Leave a Reply

Your email address will not be published. Required fields are marked *