The fact that parties are in mediation means there is a dispute in the first place. And disputes oftentimes end up in impasses that seem impossible to overcome.
When mediating, I remember the acronym STAKE to understand the possible hindrances to a settlement, and based on this simple acronym, I try to pre-empt or resolve the potential impasse before it happens. Here is what STAKE stands for:
S stands for strategy in negotiations. Before mediation starts, I try to meet the different parties and gauge what negotiation strategies each party would employ. In this way, I try to avoid buying into any party's bluff, and as mediators know, parties will try to pull a fast one if they can.
T stands for time. When one party is in a rush for time, an impasse would most likely happen because there is no more proper frame of mind to discuss any proposal. Make sure there is enough time set aside from the very start. If not, reschedule the entire mediation rather than get into a rush job.
A stands for authority. The worst case scenario is to hear, after discussions have been moving along smoothly, that one party does not have the authority to settle. Getting a confirmation of authority in writing beforehand is usually useful. Parties may represent that they have authority and still back out, but they are far less likely to back out of a written authority.
K stands for knowledge. Sometimes, parties cannot settle because they are functioning on ill-informed knowledge. They may for instance be over-optimistic about their chances in Court. Or they may have imperfect knowledge about the other party's motivations. Asking lots and lots of clarifying questions (in a joint session or a separate session) can help flesh out what parties in fact know and believe, and whether these are realistic.
And finally E stands for entrenched interests. There are apparent interests and surface interests. There are also entrenched or underlying interests in every case. Unless a mediator can discover these entrenched interests which are usually unspoken, there is little likelihood that any settlement reached would be satisfying to the party concerned.
So there is my cues. The alphabets form a simple word STAKE, which is a reminder to myself to hang in there, stay the course, stay in the stakeout, always optimistic that settlement may just be around the corner. You never know...
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If you have questions or comments, email me at khenghoe@mycounsel.com.my.
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