Today, we have all sorts of cliches and acronyms. We talk about mediation being party-driven, being consensual. We say ADR is a win-win, all win, give and take. Some will say joint venture. All of that. I say to myself, there are so many acronyms and sometimes we just repeat them without really visiting the real thing behind these acronyms. Let us take them one by one. Let us start with ‘give and take.’
You say, well, it is give and take, that you must learn to give something so that you take something, but without realizing it, that is still the adversarial approach. It means I go there to get something, ready to give, as my price for getting. So, I am still getting and losing. It sounds like a compromise, but deep down, it really is not. It is like saying a woman is a non-male. We should not define one with reference to the other. In give and take, when I give something, I am losing something. If I take something, I am winning something. Therefore, my strategy naturally becomes to give more than I lose, or solely to gain what I want. This might be okay when negotiating in a transaction when there is neither a conflict nor a dispute. Parties are merely trying to make some agreement for some obligations to be performed. Hence, one person gets to be a little more tolerant of the other. But it is not always applicable where there is already a conflict or dispute. Interests and needs can be met otherwise. I do not need to win, take, win, or lose.
That takes me to the second acronym: win-win. Or should I say the second set of acronyms: win-win, all-win, so long as there is win, there’s a truce. So, if we win-win there are some invisible parties that are losing and losing because every time you win, somebody must lose. Let me give you an example. Years ago, we used to talk of people blasting the tape at the end of a sprint when they ran even, or they tied. However, in modern athletics, given the precision we have in modern chronometer, even if they both set the tape at the same time, they cannot both be 9.20, one person would either be 9.23, the other person will be 9.25 or one person would be 9.1 and the other will be 9.2. Therefore, the modern chronometer has taken away the idea that both of us can win at the same time. We cannot. Once there is a winner, there is a loser. I believe that when you come to authentic mediation, there must not be even the slightest notion of win or lose, whether you come in with win-win or all-win, whatever it is. The moment this governs the approach or administration, you risk defaulting into the adversarial. Before you know it, you are beginning to decide who deserves more, who should compromise, who should give up, who should concede. And all those things are talking of winning and defeating, conceding, or winning or surrendering or whatever it is. So, all of those, in my viewpoint, are antithetical to the point of authentic mediation. They are the remaining vestiges of adversity.
Therefore, give and take does not happen, it does not apply. It’s not about a give and take. No, it is not. It’s not about a win-win or win or any of those things. It does not apply. There are no losers at all. The other one that comes in, therefore, is when nobody wins or loses. Compromise. Mediation does not necessarily have to be a compromise. It does not necessarily have to deny my fundamental characteristics or qualities.
That is the beauty of mediation, and that is why anyone who is going to be a good mediator must be skilled and experienced. It is not just a matter of going in and saying, “Oh, it’s party-driven.” What do you mean by party-driven? Who is driving it? I have done mediations where in fact I have allowed the lawyers to drive it because I felt that with their skills and with their training, they would be able to help me better to elicit the real interest and the needs of the parties. Because eloquence is a gift. The ability to articulate your position is a gift, a gift that some of us have, naturally, while some of us must learn. But most times people like lawyers and the rest of them as part of their professional training, are equipped to do so. So sometimes I need them. I cannot say this is party-driven. All I need is whatever will enable me to elicit the interests and the needs and the things that we need to address. Apologies? Reconciliation? Peacemaking? These have little to nothing to do with win-win, all-win or give and take or whatever it is, it is a matter of understanding what are the fundamental characteristics, needs and interests that you need to elicit those qualities. And I find that if you allow yourself to be driven by acronyms and cliches, you will soon be led off track. So, away with the rhapsody of acronyms and dig down to find the needs and interests. This rhapsody may not be good music in the long run.