Mediation can be one of the most effective and efficient dispute-resolution methods in your organization’s toolkit. However, it requires a certain amount of goodwill from both parties to be successful. Without a good faith approach, it is difficult for most parties to reach a fair and just resolution to their dispute through mediation alone.
Understanding what it means to approach mediation in good faith
is an important first step. In this article, we explain why your attitude matters when you want to mediate your dispute and offer tips to help the process succeed.
Mediation Relies on Negotiation
Unlike arbitration or litigation, mediation is intended to be a negotiation between the disputing parties. Your mediator is not there to make decisions for you. At most, they may provide suggestions for possible compromises and help keep conversations professional and on-topic.
It is the responsibility of the disputants to work out their disagreement. They need to explain their points of view to each other and provide options for making things right. They also need to be willing to compromise and meet each other in the middle. As such, the disputing parties’ attitudes and intentions fundamentally shape the process’s outcome.
Importance of Good Faith
Fair and effective negotiations rely on the participants operating in good faith. This is defined as “sincere conduct free from malice or a desire to defraud others.” In other words, it means acting with honest intent, with the intention of following through on promises, and without the desire to take advantage of another party.
Good faith behavior is fundamental to most elements of contract law and dispute resolution. However, if everyone consistently acted fairly and honestly, the majority of contracts would no longer be necessary. Many parties act in bad faith by being dishonest or holding others to impossible standards. People may act in bad faith because they want to take advantage of others for their own gain or because of strong emotional responses.
For example, someone could refuse to negotiate during mediation because they anticipate a bigger settlement if they go to trial. They could also do so because they are extremely upset about their treatment and don’t want to “lose” the dispute or “accept” the perceived inequity. The second situation is by far the most common and lies at the root of most conflicts.
Guidelines for Acting in Good Faith
You cannot control the other party’s behavior when you enter mediation. If someone intends to act in bad faith to benefit themselves, the most you can do is point out their behavior, trust the mediator, and design your negotiation strategy with their attitude in mind.
However, you can prevent yourself from acting in bad faith. By taking the time to understand your own emotional responses and what a good faith approach means, you can ensure your own behavior does not hinder the mediation process. Tips for accomplishing this include:
Enter Mediation With the Intent to Compromise
The purpose of mediation is not to “win” a dispute or get your own way with no concessions. The goal is to work with the other party to achieve a compromise that satisfies everyone. If you enter mediation intending to beat the other party somehow, you will be resistant to any attempts to compromise, no matter how fair they may be.
Instead, understand that you must make compromises throughout the process. This doesn’t mean you must agree to everything the other party requests. They need to make concessions as well. Being open to suggestions and compromises is a fundamental requirement for successful mediation.
Consider the Other Party’s Point of View
Compromising with someone else can be difficult if you don’t understand where they’re coming from. In most disputes, both parties believe they are fully justified in their positions. If you don’t consider the other party’s position, you can’t suggest compromises that would satisfy the root of their grievance.
Suppose you attend mediation to resolve a dispute with an employee who believes they have been unfairly underpaid for their work. You may think they have been paid fairly, but they clearly have a reason for elevating their grievance to the level of mediation. Perhaps there has been a genuine error in their pay that isn’t immediately obvious without an in-depth review of payroll. Maybe they believe discrimination prevents them from receiving equal pay compared to their peers.
If you take the time to understand their point of view, you can better understand what they will request during the mediation process. You will also be able to make better suggestions to resolve the dispute.
Be Honest During Negotiations
Honesty is critical in any form of negotiation. This includes being upfront about your understanding of the situation, your ability to make things right, and evidence about your claim.
For instance, if you cannot offer an aggrieved employee a raise or promotion, make it clear from the beginning that this is not possible and explain why. This helps set their expectations and allows them to consider other potentially satisfactory solutions, such as a change of schedule, additional vacation time, or another compromise that addresses their complaints.
Similarly, if you discover a payroll discrepancy or trend of discrimination in your business during the mediation process, do not try to deny the evidence. The mediation process lets you resolve the complaints caused by these issues and prevent them from happening again without the significantly more expensive and time-consuming process of going to court. Honesty about these issues makes the other party feel respected and helps rebuild trust between you.
Get Proven Assistance From an Experienced Mediator
Approaching mediation in good faith can be challenging in many situations, but it is still possible. An experienced mediator can help keep strong emotions in check and your negotiations on track. At the Law Offices of Denise Eaton May, we specialize in mediating conflicts for corporations and other organizations. Learn more about how we can help you act in good faith during your dispute resolution process by scheduling your consultation today.
