As mediators we spend a lot of time focused on how we can help parties to settle. But sometimes the question emerges - is failing to reach a settlement an automatic failure? Is there something else that can be gained even where the parties do not settle? Yes there are times when we put an issue to one side, to come back to it later when there has been more progress with other areas; “let’s park that for the time being”
Or within a relationship the parties just avoid conflict over something, change the subject, pretend like it doesn’t exist or matter. And sometimes we can do that; the parties make a conscious decision to ignore something just to get the settlement across the line. But what I am talking about is embracing the decision that there is no agreement over an issue, and whatever problems that then throws up. Clearly you have to pick your subject matter. A fence which one side views as being in the wrong place is of a more binary nature. An agreement to disagree is merely to put the fence in the place that one party does not want it to be. Positive ‘agreeing to disagree’ occurs when individuals recognize that further conflict would be unnecessary, ineffective or otherwise undesirable. Often it involves learning to understand the other party’s view. The key is that it is about enabling both parties, or their relationship, to move forward. They walk away without acrimony and overheated emotion. A good example of this is an analysis of a provision within a contract or a lease. The parties have made numerous attempts to convince the other of their interpretation. Neither side is swayed. The answer is important and it will have an effect on the parties. But they still can’t reach a settlement. Within the dispute it’s gotten nasty. Frustration is overflowing. Words are being said. Other issues are being drawn in. Relationships are falling apart. Clearly the point needs clarifying, but it may be that the parties stop trying to find a compromise, stop trying to convince the other party they’re right. They stop being in dispute and start to find a mechanism for how to find an answer. They may go to Court, to get a Judge to rule on the point, or take it to some form of binding arbitration. They might ask a trusted advisor to give a view. Or look to evaluative mediation; where the point is considered and (in a method agreed between the parties) decided on by the mediator. Perhaps in some random circumstances they might even just toss a coin. Whatever they do, they find that their on-going relationship is not subject to the emotions of the dispute. That their day to day relationship can carry on. They have agreed to disagree. And not only is that sometimes the best that we can do, sometimes it’s the most positive outcome. We just need to learn to embrace it. Comments are closed.
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AuthorRichard Marshall is an Accredited Civil and Commercial Mediator with over 25 years experience as a Litigation Solicitor, as well as being a qualified Solicitor-Advocate. He is the founder of Striving to Settle, through which he works as a mediator and provides negotiation training. www.strivingtosettle.co.uk Archives
August 2022
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