Negotiation can happen between individuals, lawyers, and other dispute resolution professionals on behalf of the parties involved. While mediation involves negotiation, there are some distinctions between negotiation and mediation. In mediation, the negotiations are facilitated by a third-party neutral. This third-party neutral is a mediator and assists the parties in understanding each other’s positions and interests.
In negotiation, parties may work directly with each other or hire other professionals to negotiate for them. In mediation, parties work together with a mediator’s help to negotiate.
Another difference is that in negotiations, the parties or the professionals negotiate by communicating directly. In mediation, the mediator helps to facilitate communication between the parties. This may include electronic communication and joint or shuttle-style mediation meetings.
Mediation, like negotiation, is non-binding. Agreements between parties in negotiation and mediation are only upheld by the individuals involved. There is likely no legal recourse available if folks do not follow the agreements. In mediation, the mediator helps guide the parties to an agreement that will satisfy their interests as best as possible. Still, the mediator is not a judge or arbitrator. The mediator will not determine the best outcome for the parties or police if the parties are following the agreement.
In negotiations, either directly between parties or using other professionals, the parties might vie for their own position, fighting to get the outcome that they view to be the most desirable. In mediation, the mediator has no vested interest in the outcome and works with the parties involved to better understand each other and hopefully reach an agreement honouring their unique and individual needs and interests.
Persuasion and other tactics might be used in negotiations between parties or with lawyers. Mediators are trained to help parties think critically about potential outcomes and what will be the most sustainable and satisfactory outcome for everyone involved.
Negotiations might break down because parties get heated and may refuse to speak further to each other. When parties use lawyers and other professionals to assist with the negotiations, they might instruct those professionals to stonewall the other side as a tactic to gain control. While most lawyers and professionals should help their parties understand that those tactics are not productive, some lawyers and professionals use stonewalling and intimidation to leverage their power in the negotiation process. Mediators, however, are trained to help facilitate communication. If parties are unwilling to speak to each other, mediators might use shuttle negotiation or other techniques to continue facilitating movement toward an agreement. Mediators will not use or accept stonewalling and intimidation in the process. Furthermore, mediators mitigate power imbalances and seek to reduce any real or perceived power to be used negatively in the mediation process.
Parties in the throes of conflict can have a difficult time speaking respectfully and constructively to one another. If they attempt to negotiate between themselves, it might divulge into further disagreements. If those parties hire advocates, those advocates might side with them to the detriment of reaching a settlement because of overly zealous advocacy. Whereas, mediators are not advocates for either side and are skilled at helping parties maneuver through disagreements and gain a deeper understanding of each other to manage their conflicts. This can help parties continue to negotiate despite ongoing conflict.
Another way in which negotiation can differ from mediation is that negotiation might be compulsory, as in union negotiations. Mediation, however, is always voluntary. There is court-ordered mandatory mediation. However, the parties still need to participate in the mediation of their own volition and with their own self-determination. The mandatory proponent of mediation often refers to a litigation process wherein if the parties want to continue through the process, they must first try to resolve their dispute outside of the court with the assistance of a mediator. In Saskatchewan, there is also a requirement for folks in family law disputes to attempt to reach agreements through Early Dispute Resolution. The options for early dispute resolution processes include Collaborative Law, Arbitration, Mediation, or Parenting Coordination. This is not considered mandatory mediation because people in family law disputes have the choice of which process they use to try to reach a resolution.
In negotiation, if parties come to a deadlock or impasse, they may walk away or proceed to try uncooperative tactics and processes to try to get their way. In mediation, the mediator will continue to work with the parties until the parties leave the process or reach an agreement. When parties come to an impasse, the mediator is trained to circle back to the parties’ interests and dig deeper to see where there might be mutual and compatible desires that could result in a mutually satisfactory agreement. If the parties become thoroughly fatigued in the process, they might decide to use arbitration. Arbitration results in a binding decision made by a third party neutral. This might be desirable for the parties involved because it is still less combative, expensive, and time-consuming than taking the dispute forward through the litigation process. It would be rare for folks to fully participate in both mediation and arbitration and still need to go to court.
In summary, in the mediation process, parties agree to work with a mediator to help them resolve their dispute or disputes. This is similar but also different than negotiation. Mediators are not judges or arbitrators, so they will not make a ruling or determine the outcome.
Negotiators might assign value or be zealous advocates, whereas mediators are impartial and neutral and do not assign value or take sides.
Mediation, even when mandatory, is voluntary, and parties use their self-determination to reach an agreement. Negotiating might sometimes be compulsory. Mediators are impartial and separate from the conflict; they have no stakes in the outcome of the mediation process. When participating on their own behalf, negotiators are biased because they are directly involved in the conflict. Professional negotiators might also be biased, as they could be the advocate for one party involved in the dispute.
Mediation is a confidential process. Some negotiations might also be confidential, but it is essential to discuss this because it might not be assumed by both parties involved. Mediators might hold their mediations in joint sessions, shuttle format, or a combination of both. Negotiations are usually conducted between parties or through professionals the parties have hired to negotiate on their behalf. When mediators have private meetings with one party, that meeting is often referred to as a caucus. It is confidential between the mediator and the party unless that party says the information discussed in the caucus can be shared with the other party. Caucusing in negotiation will likely involve the parties having separate private conversations about strategies with their advocates.
Mediation is an option that can be used when negotiations between parties have failed to resolve the issues between them directly. Mediation can be used even if the parties are high-conflict and do not get along or like each other. Negotiations can also proceed when people are high-conflict and do not get along or like each other, but it might be much more difficult, take longer, or break down. A mediator might be able to defuse disagreements between the parties and help the parties communicate constructively through their conflicts. Negotiations can aggravate tensions directly between parties or when parties use advocates who use intimidation techniques. Negotiation or mediation can help folks resolve their dispute; however, it is helpful to consider the differences between these processes and select the one that will work most effectively for the parties involved.
If you would like to learn more about mediation, check out our course catalogue.
This blog post is inspired by the book “How to Mediate Like a Pro,” by Mary Greenwood, J.D., LL.M.
