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© 2011 Law Firm of Allen T. Ratcliffe, Jr.  All Rights Reserved.

Mediation and facilitated resolution of disputes have be successful in resolving issues that otherwise might have caused transaction negotiations to break down.  Transaction negotiations typically are positioned based, that is each side has a fixed position that is being advocated; as the process unfolds, frequently the parties become more and more entrenched in their respective positions.  Whereas, mediation, and the less formal process of a facilitated resolution of disputes, find their foundation in an interest based approach described in Roger Fisher and William L Ury’s book Getting to Yes. 

Interest based negotiation looks underneath the entrenched positions of the parties to better understand their needs, motives, and objectives, and uses that information to creatively generate options that are responsive to those needs.  It requires a completely different skill set than positional bargaining and is centered around listening to the needs of each side as opposed to giving instructions or providing information.  It is most useful when it is the desire of the parties to preserve ongoing relationships and foster cooperation for the long term, the scenario most likely in a business or family environment.

Conflict resolution is often not an event when there is an ongoing relationship, it is a process.  For there to be any hope of resolving conflict, there must be a sufficient level of trust between and among parties.  A facilitated resolution of disputes is designed to assist in the development of trust by clarifying the decision making process (eg. don’t make business decisions for family reasons), increasing productive communication while reducing harmful and oftentimes irrelevant communication, and coming to agreement on rules in order to reach common objectives and then formalizing the rules.