Understanding-Based Model of Mediation

Group Photo – Gary Friedman Mediation Intensive 2012

Gary Friedman and Catherine Conner led the five-day, 40+ hour mediation intensive class in Spring 2012 in Marin County, California. Gary Friedman has been a mediation leader for decades, having taught and practiced mediation for over 30 years. He has worked with Harvard Negotiation Project and has taught at Stanford Law School. As a passionate and thoughtful practitioner and proponent of same-room, understanding-based mediation, Gary Friedman is in high demand, nationally and internationally. Catherine Conner is a leading mediator and collaborative lawyer. In fact, one of my classmates at the intensive said he has hired her roughly 30 times as a mediator to help resolve his cases. Both are very skilled practitioners and teachers.

We started with 24 students, all intelligent and insightful but with different backgrounds. Some were younger lawyers, and some older. A judge and a few psychologists rounded out the group. What is great about working day and night with the same group is that we can pick up where we just left off to work through the process, the issues, and engage in great discussions. At times, I felt like I was in ancient Athens learning with Socrates and Plato.

The first part of Friedman’s model requires that mediators ensure that the participants agree to THE process. Friedman’s essential paradox took me a couple of days to accept. On the one hand, Friedman preaches self-determination: A mediator should follow where the parties want to go and should not drive them to a process OR result. But what if the parties prefer separate-room negotiations where the mediator keeps secrets and shuttles back and forth? It’s their decision, right? Yes, but Friedman would not serve as their mediator because he is thoroughly convinced in the superiority of his method. With his commitment to the understanding-based model, Friedman was the perfect teacher for me, because most of my experience as an advocate had been with separate-room mediation. I found it worthwhile (a) to explore philosophical underpinnings of the method and (b) to practice mediator tools used to conduct such mediations.

Stages two and three of the model are to define the problem and work through conflict. Here’s where the mediator in Friedman’s model earns his or her money. When the parties are in the same room, the mediator must be conscious of everything: positioning and body language, eye contact, and emotions. Spoken words are only the tips of icebergs as we gather information. People will often say “what” they want. A mediator should dig down to help identify “why” they want it. In Watergate, it was: “Follow the money.” In Freidman’s method, it is “follow the ‘why trail’” to fully understand where each party is coming from and to determine their needs, interests and priorities. The classic example is, “Why do you want the orange?” Maybe one person wants the peel for cooking and the other wants the inside to eat. If that’s the case, an agreement on how to split the orange is obvious.

Following the “why trail” is easier said than done for a lot of reasons. Sometimes, the parties, themselves, do not fully comprehend their own needs. Sometimes anger, frustration, fear and other emotions boil over, and the mediator has to be the calm center holding it all together. The mediator must help the parties dig down to reveal all of the concerns so that the parties can achieve a durable agreement that resolves as many of their issues as possible.

Stage four is not unique. Here, the parties brainstorm options, preferably without any evaluations. Once the parties have exhausted the options, then Friedman and Conner suggest that the mediator ask each party to rank each option as follows:

A = interested in taking about it.
B = mildly interested in talking about it.
C = not interested talking about it at this time.

As we worked through the process in our exercises, this ranking proved more useful than I would have imagined. When both sides give a “B,” then one feels like the parties are getting somewhere because the parties discover points of potential agreement.

The next part of the process is to compare the acceptable options against the parties’ interests. Some options will meet both parties’ needs, but other options will not. By now, the mediation has funneled the dispute to the true differences that remain and on which they must bargain to conclude their agreement.

So, that’s the skeleton outline of the Friedman, Understanding-Based Model of Negotiation.

Jeff Merrick, Merrick Mediation, ©2012

Mediation “Schoolhouse” at Green Gulch Farm