#25 Highlighted Differences Result In Mediation Settlement

The watershed moments in which disputes are resolved are many and varied. Recently, the participants late in a mediation, deviated from my suggested way of proceeding. They expressed their frank and full dissatisfaction and dislike of each other. I was surprised by how such expressions late in the mediation seemed to facilitate settlement.

This was a contractor/client relationship that had gone off the rails. Despite considerable work and progress they were $1,500 apart late in the mediation.

Given time constraints, I caucused to prepare them to make a final attempt at settlement. I have a script that I learned from Terry Harris in Vancouver about 15 years ago that I frequently use to help disputants in making a financial offer: 1) recognize the positive of what happened through your association; 2) quantify your dissatisfaction with what went wrong; 3) make your offer. But, following this coaching, they took quite different tacks. Back in joint session it sounded approximately as follows.

The contractor said to the client, “I did the work for you and you owe me for it. You knew I was doing the work, and if you were not satisfied with how it was proceeding you should have communicated that or asked me to stop. You didn’t. Furthermore, I went out of my way on several accounts to provide additional service because I knew you were in a tough place. I didn’t supply you with interim invoices because you told me you would not able to pay until the New Year. You got into a financial crisis and you are fabricating a story that allows you to try and cut your losses by shorting me what you owe me.”

The client said to the contractor, “When we talked about you doing the work, I said that I wanted to get other estimates before deciding who to use. You have taken advantage of me by proceeding without my authorization. You knew I was travelling and would not be available in person. The services went on for several months and you should have invoiced me as you were proceeding. Furthermore, the work you did according to several industry experts was poor quality. I don’t actually owe you a penny. I could even make an argument that you owe me for the inconvenience and time it has taken to undo some of the shoddy service.”

These perspectives had been shared earlier in the mediation but the parties had reacted strongly to each other. At this point, however, they simply listened — and I’m sure disagreed with almost all of the other’s views. A few minutes later, they settled on an agreeable figure.

In this mediation and others that I have experienced, it seemed to be the stark and sober expression and acceptance of difference that assisted transformation and resulted in a settlement.

Leaders and mediators generally encourage parties to move towards commonality when they are in a dispute. There are some important and obvious reasons for this approach, but sometimes I find the practice counter-productive. Sometimes highlighting difference rather than commonality is the medicine that is required.

Should you wish to read further on a related topic, please go to the blog I wrote about being in difference from a spiritual perspective – Are Conflict and Spirituality Connected?

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