Settlement Is Not Success, Impasse Is Not Failure: It Is The Perseverance To Mediate That Counts
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Readers who are experts on the wartime British Prime Minister or have recently watched “The Darkest Hour” may find the above caption familiar. Yes, it has been inspired by Winston Churchill’s famous quote “Success is not final, failure is not fatal: it is the courage to continue that counts.” If you like the caption, feel free to use it as your mediation motto or share it with your colleagues and students in mediation training.
As a mediator, I always encourage the parties to negotiate. However, there must be a limit to that. Hard-selling the advantages of mediation may be perceived as imposing values on the parties. That explains why mediation is more powerful when it is a voluntary rather than a mandatory process. When the parties are ready, they are more willing to negotiate. It is up to the parties to determine whether and when they should negotiate. A party may not be willing to negotiate even when the BATNA (best alternative to a negotiated agreement) is not good at all. One is entitled to think that to be killed by the enemies is better than dragging out an ignoble existence. It may be an “irrational” decision from a third party’s point of view but a mediator must respect it pursuant to the principle of self-determination. Those who have watched the learned Ted Talk on “How to make hard choices” by Professor Ruth Chang should know very well that the decision to fight or the decision to talk is a hard choice and it cannot be measured by an objective yardstick. A mediator must be aware of that.
An interest-based negotiator will not consider initiating a negotiation as an act of showing weakness. However, a lot of the others think otherwise. Whenever my mediation is adjourned, I follow up the mediation by taking the initiative to request the parties to resume the negotiation so that they and their respective lawyers need not worry about the issue of losing face or appeasement. Besides, telling one party that the other party would like to negotiate further may run the risk of being perceived as the agent of the other party.
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