The 'smart' of compromise in mediation

By Earlene Baggett-Hayes

The use of compromise in settling disputes has been debated for decades. In one regard, there are those who feel that compromise is the savior for conflict resolution. On the other hand, there are those who challenge the effectiveness of compromise and treat it as a cop-out or a cave-in. This article addresses the “smart” of compromise. It delves into its meaning and the extent to which compromise is relied upon in conflict resolution. It also examines some of the pros and cons regarding compromise, various approaches to reaching a compromise, and mediator approaches in facilitating potential compromise situations. 
  
What is Compromise?

Compromise is one among several conflict management styles. The others styles are avoidance, accommodation, collaboration and competition. Although compromise typically is not the first conflict management style to be utilized by parties in resolving a dispute, it oftentimes is relied upon to ultimately reach a resolution in mediation.

Compromise is defined as a settlement of differences by mutual concessions; an agreement reached by adjustment of conflicting or opposing claims, principles, etc., by reciprocal modification of demands. Typically in a compromise, both parties mutually agree to make concessions.  Also in a compromise, both parties usually give up some of what they want, and neither party receives all of what they want.

What’s Wrong  with Compromise?

The use of compromise in dispute resolution causes many different negative emotions and feelings. In compromise, both parties end up dissatisfied to some extent, and not necessarily totally happy, even if they may be equally as unhappy. Oftentimes in compromise, one or both parties feel that they have succumbed to a less effective resolution.

Parties may feel that they gave in too early and relinquished the prospect of what really would have been best, or that they compromised just for the sake of moving things along. Although compromise may result in an agreement, the compromise itself may not always resolve the problem.

Compromise may also be construed as caving in.  If a party caves in just to cause the other side to go away, has the caving in party actually done damage to him/herself? Likewise, does caving in create an injustice to the other party by denying the benefit of full consideration, and/or full disclosure? Rather than taking the time to evaluate and discuss the situation, compromise may be entered into just to make the situation go away. This is an interesting point since, in fact, it really doesn’t just go away. Frustrations may also be present with the recognition that the opposing party made concessions only for the purpose of appeasing the other party.

Compromise may also translate negatively because pinned up negative feelings may be trapped inside a party and not released. Consider the difference between retaining internally the built up hostility due to a party’s failure to communicate, and providing a sincere explanation of one’s position. The results are simply not the same. Consequently, ongoing conflicts may surface as a result of lingering anger and resentment.

Compromise is particularly problematic and less appropriate when a party feels that he/she has violated their own core values and beliefs, such as honor, credibility, fairness and loyalty. This may be construed as being unfair to thyself, or acting inconsistent with personal convictions.

Compromise is often referred to as a win-win situation because both parties generally walk away with something gained; however, this is not always the case, and certainly not always the interpretation of the parties.   

What’s Right  with Compromise?

Well, compromise will probably make the mediator happy. But let’s address the mediator later on, and now turn again to the parties. A successful compromise is construed as one in which the parties arrive at a mutually beneficial agreement. In a meaningful and effective compromise, the parties engage in dialogue about their respective wishes, ideas, thoughts, aspirations, expectations and objectives. The parties question, challenge and respect each other.  By doing so, they move toward a better understanding and strive to carve out a solution to their issues.

Compromise is significant and works for both sides when both parties have fully communicated their concerns, and it is practical to reach an agreement. Having a full understanding of each other’s points of view may assist in causing the parties to determine that it makes sense for the parties to concede certain points. Although there may be certain disagreements that are not negotiable by either side, a well-discussed compromise allows for the parties to prioritize their interests and establish a clear understanding of the perspective of the other side, which may ultimately assist them in reaching a resolution.

Another benefit of compromise is that it allows for parties, in prioritizing their needs, to focus on their concerns with a full understanding of the interests of the other side. This allows for at least some of the concerns and interest of both sides to be addressed, and for the parties to couch the agreements in a manner to save face or emphasize must-haves where appropriate.

Compromise also provides for timely, efficient and immediate resolution of issues when time is of the essence and it is urgent to reach a resolution, as opposed to derailing the project. Another advantage of compromise is that it may be employed and useful when other conflict management styles have been tried and proven unsuccessful

Mediator Tips in Potential  Compromise Situations

Whether the parties in a mediation are receptive, or opposed, to compromise, provided below are a few options that may assist the mediator in handling potential compromise situations. While all tips may not apply in every situation, they may provide mediator assistance in avoiding temporary impasse, or a total derailment of the mediation process.

• Use a Two-Step Approach to Resolution

Step 1: Compromise, to be effective and legitimate, should be preceded by heartfelt discussion among and between the parties. Discussion allows for communication, reflection, appreciation, clarification, consideration, respect, recognition and education, among other things. This exchange, whether joint or in caucus, may allow the listener to recognize that perhaps the whole picture wasn’t being viewed initially, and to reframe potential resolutions to the problem.

That being said, the mediator is encouraged to ask appropriate neutral, open-ended questions to encourage the parties to express themselves. The mediator should motivate the parties to communicate their differences of opinion, their feelings, and the facts from their respective vantage points.

Step 2: The mediator should not try to force the compromise to occur. If the parties voluntarily reach a compromise mode, the mediator should encourage the parties to clearly articulate the compromise terms and think through the potential results and effects it may have on others. The mediator should also not overlook opportunities important to help each side recognize that their side is receiving something, and that the other side is giving up something. It is important to note  this two-step process cannot be rushed. The compromise discussions should also not occur too early in the mediation process. Typically, an effective compromise discussion takes place only after other conflict resolution methods have been thoroughly exhausted, have not succeeded, and the parties are well-equipped and prepared to resort to a well-thought-out plan for moving forward toward resolution.

• Refrain from Using the Word “Compromise”

Oftentimes, participants complain about the mediation process because they feel they are expected to compromise. It may be advantageous to the mediation process for mediators to avoid the use of the word “compromise” since it is abhorred by many participants. If, however, the word is brought up by the parties, it is important for the mediator to point out that mediation is not equivalent to compromise and to elaborate on the differences. Another approach would be to ask the parties how they might encourage the other side to accept their terms in such a way to prevent the other side from turning down the terms, or at least to encourage the other side to propose a modification of those terms. This approach may be referenced and applied without alluding to the concept of compromise.

• Clarify Expectations Regarding Compromise

The mediator should let the parties know up front that they are not being forced to compromise. The mediator may also explain that the parties do have an opportunity to reach a resolution that works for both sides, and can be proactive in generating the terms to make certain it happens.

• Avoid Premature Discussions of Compromise

The mediator should recognize the risks of entering into compromise too early. In compromise, it is important not to overlook, or lose, the salient factors or characteristics of the dispute. It is also important that parties have had the opportunity to have their say. It is equally as important for parties to brainstorm and come up with creative solutions, even those not previously considered by the parties. The risk of compromising too early may cause the parties to become stagnant during the mediation, or to fail to make reasoned decisions based on available information that has been communicated.

• Encourage Parties to Focus on What Each Side is Seeking                                            
The mediator might also discuss encouraging the parties to focus on their own expectations in conjunction with what the opposing party wants, and how they both may be accomplished, as opposed to trying to move them both to the middle.

• Encourage Parties to Focus on Effective Business Decisions As Well As What is Correct

The mediator may also communicate the difference between a party’s determination to rely on what may be the most correct approach, and the party’s opportunity to make an effective business decision. 

• Move Parties Toward Resolution

The mediator may encourage the parties to recite reasons why settlement should not be an option. In many situations, this request will also motivate the parties to talk about why settlement would be good, and follow-up with potential approaches for settlement.

Conclusion

Compromise is an often used solution to resolving disputes in mediation. Inasmuch as compromise is relied upon as a back-up plan in the resolution of many disputes, it is not always viewed by the parties as the best choice. To compromise may not necessarily provide a mutually satisfactorily result. Nor is compromise always equivalent to resolving the problem. On the other hand, the compromise process may provide parties with an opportunity to thoroughly dissect the issues and allow for a detailed articulation by the parties of their interests and needs prior to voluntarily entering into the actual final compromise.

The mediator’s options in compromise situations may vary depending on the parties’ receptivity to the process. Whether the mediator is expected to downplay or promote the manner in which the parties seek to reach a resolution, the mediation process should be designed to appropriately address the parties’ needs based on the smart of compromise.

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Earlene Baggett-Hayes is the founder and owner of The Law and Mediation Center PLLC in Pontiac. She has been a mediator since 1996 and an arbitrator since 2004 in various areas of the law. She serves on numerous arbitration and mediation panels both locally and nationally. Baggett-Hayes has served as a court-appointed mediator, arbitrator, facilitator, case evaluator, fact-finder and referee. She has authored several articles on ADR and serves on ADR state and national committees. Baggett-Hayes has also developed and/or facilitated over 20 training programs on various ADR topics and is a certified trainer with the State Court Administrator’s Office. She is an active member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/) and was recently inducted into the International Academy of Mediators.