Phase IV: The Search for Solution-Innovation and Problem Solving

Introduction:

Once the agenda is set and the problem is defined, the next phase in mediation is to search for solutions or attempt to solve the issues identified at the agenda setting phase. This note will discuss this phase and its purpose.

What is Done at this Stage:

At this stage, items from the agenda list are selected for negotiation, and the parties are made to proffer solutions to each item.

It is essential to note that at this stage the parties are essentially negotiating and are being guided to do so by the mediator. In the negotiation, it is essential for the mediator to guide the parties to adopt a negotiation style that is most likely to resolve the dispute. The parties may either adopt positional bargaining (competitive negotiation) or interest-based bargaining (cooperative or principled negotiation). These two approaches to bargaining are extensively discussed under negotiation.

Purpose of this Stage:

It is more beneficial for the mediator to help the parties adopt cooperative negotiation. Here, the mediator is guided by the five principles of interest-based negotiation developed by Fisher and Ury [2]. This approach is reflected in the course manual which, in discussing the purpose of this phase, is highlighted as follows:

1. Look for agreement:

Per the course manual, one of the purposes of this phase is to look for an agreement. Before doing this, it is essential to take into account the interests that underpin the various contradictory positions adopted by the parties. The positions almost always appear incompatible, and at first glance, it appears impossible to find any agreement between the parties. The interests, however, are not always incompatible and may be areas of agreement. One of the principles of principled negotiation is focusing on interests, not positions.

2. Brainstorm options:

Per the course manual, one of the purposes of this phase is to brainstorm options. In principled negotiation, this is characterised as inventing options for mutual gain. Per this principle, the negotiators must spend time brainstorming a wide range of options before settling on an option that maximises mutual gain.

To fulfil this principle, it is essential for the parties to come up with their own options, and not have options imposed on them by the mediator.

To encourage parties to come up with options, it is essential to not engage in premature judgement or criticism of the options generated. If an option is quickly shot down without much thought, the party who came up with the option may be discouraged from coming up with more. According to Fisher and Ury [2], “Nothing is so harmful to inventing as a critical sense waiting to pounce on the drawbacks of any new idea. Judgment hinders imagination.”

3. Establish criteria for judging options:

Per the course manual, one of the purposes of this phase is to establish the criteria for judging the options developed at the brainstorming stage. In principled negotiation, this is characterised as insisting on objective criteria defined as independent standards or benchmarks used to evaluate options or make decisions in a fair and impartial manner.

These criteria are not influenced by personal preferences, emotions, or biases but are instead based on widely accepted principles, facts, or precedents that reasonable individuals can agree upon. In the Course Manual for Alternative Dispute Resolution by the Ghana School of Law, objective criteria are defined as “fair standards and fair procedures that all reasonable people can relate to.” The essence of establishing these criteria is that when objective criteria are used, the party whose interests are not served can appreciate that they are not being cheated, as the criteria were not developed by the party benefiting from their application.

These objective criteria are used to consider and judge all the options that were generated by the parties. The mediator may help them narrow the options by merging similar options among others.

After some options are selected, the mediator helps draft those options into an agreement.

4. Promote effective communication between the parties:

Per the course manual, one of the purposes of this phase is to promote effective communication between parties. The essential question is, how is this done? On this, the manual is silent.

Per principled negotiation, one of the ways to improve communication between the parties is to separate the people from the problem. The learned authors explained that without separating the people from the problem, an attack on the problem would be seen as a personal attack. For instance, a statement like “the kitchen is a mess,” might be interpreted as criticism of someone’s habits rather than an objective observation of the kitchen’s state.

Now the question is, how do you separate the people from the problem? The learned authors advanced that this is done by dealing with the people problem, one of which is the communication problem. They identified the following three communication problems: (1). Negotiators are not talking to each other; (2) Even if one negotiator talks to the other, that other person may not be listening; (3) A party may misinterpret what the other party says. To deal with these problems, the mediator must encourage active listening, assure parties that their communication is confidential, and enjoin parties to speak to be understood by using words that are simple enough to be understood.