During mediation my heart sinks whenever I hear a party say they can’t give anymore without compromising their ethics or values. Why has compromise become a deal-breaker with such a negative association of giving up or giving in? It doesn’t have to be like that – and parties in mediation should be encouraged to embrace compromise as a worthy strategy.
The topic of compromise has recently been brought into focus by the Brexit deal, which was hailed by the President of the European Commission, Ursula von der Leyen, as ‘a fair and balanced agreement’ and deemed ‘fair for both sides’ by the EU’s ambassador to the UK, Joao Vale de Almeida. Whether you agree or not that it was a good deal, the fact remains that it could never have been achieved without compromise on both sides.
Rewind to March 2011 when Barack Obama addressed a group of Massachusetts students on the power of compromise. He cautioned against setting up ‘a situation where you’re guaranteed to be disappointed’ and explained that compromise ‘doesn’t mean you’re not principled or that you’re not focused on driving a particular position or issue’. Mediators couldn’t have put it better. Parties who care about their position passionately can still compromise
By definition a compromise in a dispute is a settlement reached by both parties making some concessions. A compromise settlement agreement, after a fight, inevitably will mean both parties get some of what they wanted, but not all. Mediation allows parties in a safe environment to try out potential routes to a settlement with phrases such as ‘If we were prepared to do X, would you be prepared to consider Y?’ A mediator will often coach parties to have a few scenarios ready for suggestions on the day. In one of my recent cases, one party allowed a business partner’s son to come on to the board in return for greater voting rights. For the son and his father, the kudos of a board position was all that was needed.
Agreeing to disagree
Once a dispute arises, positions quickly polarise and parties revert to the norm of believing they’re right and that to concede anything is a sign of weakness. Yet it’s exactly then that parties to a dispute have to compromise if they want to avoid a lengthy and expensive fight in court or arbitration where one of them will be found to be wrong and could face the painful prospect of a damages and costs award. I often challenge parties to consider the worst alternative to a negotiated settlement in order to concentrate minds on the consequences of not compromising.
To reach a settlement I warn parties at the outset that they must be prepared to agree to disagree on some areas of contention and that the outcome is unlikely to be as much as they hope for at the beginning of the day. In mediation preparation sessions, advisors and in-house lawyers often ask me to prepare the principals for this eventuality – better for it to come from me as they may need to maintain a particular contractual position and be ready to ‘fight the fight’ should mediation not settle the dispute. Of course not all parties accept this at the outset but advance warning is useful when later in the day they see the need to concede on some points or leave alone certain arguments that have become circular and agree to disagree.
Thinking versus feeling
For compromise to work it requires a shifting of positions – helped throughout the day by the brain switching between ‘thinking’ and ‘feeling’, as defined by Myers Briggs. The ‘thinking’ part focuses the party on understanding the claim itself, while the ‘feeling’ part allows them to articulate their position to ensure the other side understands the hurt or offence that’s been caused and the possible motivation for the dispute. But it’s the ‘thinking brain’ that’s dominant when the parties come to decide whether to compromise, accept the past is over and recognise the merits of the settlement deal or not. Depending on the behaviour of the other side, compromise offered by one party can elicit sensible rational proposals from the others.
That’s why you often see in plenary sessions heartfelt outrage – ‘Not over my dead body!’ – and forcefully worded positions only to witness by 3pm an understanding, if not an acceptance, of the other side’s position and a wholly different approach opening up to a willingness to compromise and hopefully a settlement.
Of course there’ll be times when a compromise isn’t the answer and indeed it would result in a lose-lose scenario where neither party feels they have found a result they can live with. But compromise does work. All it requires is for parties to arrive at mediation with an open mind, a readiness to share some pain and a willingness to listen to arguments they may not have heard before or indeed might still not agree with.
By Jane Player