Edmund J. Sikorski, Jr., J.D.
Attorney, Civil Mediator, and FINRA Arbitrator
Mediation Stalls When Certainty (Digging In) Prevails
By Ed Sikorski
Every mediated negotiation must fluctuate between doubt and certainty to proceed to resolution.
Initially, the parties to the process usually have achieved some sense of certainty with regard to the position taken. However, a party must experience doubt in order to arrive at a mediated solution.
The nature of a negotiation is that a mutually satisfactory outcome can never be reached unless each party has a plan of negotiation and is prepared to change position in accordance with the plan and not as a reaction to a stated position of the other side. Such change involves successive movement, usually in a short time span, from entrenched dug in positions to positions of doubt that the previously dug in position is an impregnable fortress.
The process can be exhausting and the more dug in the position becomes, the more exhausting the process becomes until all is hopeless and the process disintegrates into impasse.
Certainty re-evaluations must occur if an imposed third party decision is to be avoided. Such resolutions are often unsatisfactory to both sides and they are always unsatisfactory to the losing side.