The recent case-law from the General Court and the Court of Justice demonstrates that 3D marks that represent the shape...
How would you feel if you had the opportunity to resolve your issue today and not have it pending and endangering your business for years to come? This is one of the techniques used in the mediation process to keep the party focused on the main interest. It is also one of the most enticing benefits of the mediation as an alternative way for conflict resolution.
It is effective, it is time and cost efficient, the parties keep the control over the terms of the resolution. What is more interesting however is that it adds value beyond the above benefits, as it has the potential to bring more than initially expected by any of the parties. Turns out conflicts are not all bad, they also carry opportunities.
I read somewhere a comparison between the games of Chess and Go, which oftentimes are seen as similar (Go is even referred to as “Chinese Chess”), but are in fact rather different in concept. In Chess the main goal is to destroy the opponent by capturing the king, whereas in Go the main goal is to enclose more territory on the board than the opponent. The focus on the territory and not on the destruction of the opponent has very interesting application as it requires balance between attack and defense, between insulting and stimulating the opponent. It also can be easily lost. If you play to win every battle, you may still lose the game. So focusing on capturing the opponent’s pieces could cost you the game.
In my practice as an IP attorney, I have seen parties lose focus of what is really important for their business and waste energy on battling primarily for the sake of winning, destroying the opponent, or at least not giving in. The important interests give way to emotional reactions and suspiciousness. As a consequence, time is lost, money is lost, and the potential of other better alternatives is lost. In the meantime there is the element of uncertainty, which slows down and prevents important strategic decisions.
The power of the facilitated negotiations (mediation) lies exactly in its ability to help the parties clarify what is important, what are the needs and interest and keep focus on the priorities. It separates people from the problem and overcomes cognitive biases. The neutral third party also helps parties communicate more effectively. As a result, both personal and commercial relationships could be maintained, or even enhanced in the process.
Understanding and resolving conflicts have been a long lasting passion of mine and I have dedicated time and energy examining the subject. Here are my top three takeaways so far:
1. Conflicts are natural, should not be constantly avoided and do offer opportunities. Conflicts arise when different interests, ideas, mindsets and attitudes meet. The cognitive biases and the difference in perception provoke the negative emotions we associate with conflicts – anger, frustration, hurt, fear of loss or failure. On the other hand, it is a chance to dig deeper in the essence of a problem, to overcome our own stereotypes and biases, to understand our needs and emotions better, and to find flexible and innovative solutions. Conflicts hold power to transform.
2. Fear is a necessary condition for a conflict to arise. It is sufficient that one of the parties feel threatened, even if there is no real danger. The other party may even be unaware of the problem. Understanding what is causing that fear actually leads to the essence of the conflict and helps distill the needs and then the main interests of the party. Eventually the "fight, flight or freeze" mode is transformed into "compassionate curiosity" mode opening space for innovative solutions and positive change.
3. Positional bargaining is like arm wrestling – the stronger takes a limited resource. The solution is usually imposed by the more powerful party. Every concession is considered weakness. It is not a good strategy in long term relations, as it brings about desire for retaliation. Тhe negotiations based on interests are more suitable to preserve a relationship, as they offer the chance for a mutually acceptable agreement both parties would eventually respect.
Surely not every conflict could be resolved through mediation. It is the understanding of the actual needs and interests that is of utmost importance. What are you doing this for? What will you gain? What other alternatives do you see and could they bring even better result? Those are some important questions, everyone should consider when navigating through a conflict. In any case, I see huge potential in mediation not only to resolve conflicts, but also to harness their energy and use it for positive change and growth.
* This article was published first on the LinkedIn profile of the author Milena Kichashka.