Jonathan Lux
Lux-Mediation, London
mediation@lux-mediation.com

The overriding message is to listen rather than advocate. Advocate is what the lawyer does in litigation or arbitration – to present the client’s case in the best light. But in mediation it’s all about underlying interests.

There is the apocryphal story of the orange (or shipment of oranges). The judge or arbitrator is limited to awarding the oranges to one or the other of the disputing parties. The skilled mediator, on the other hand, drills down and discovers that one of the parties wants the fruit of the orange to make orange juice and the other wants the rind to make marmalade – what joy, the interests of both can be satisfied from the same consignment of oranges.

When a dispute arises, parties stop listening to each other and it’s difficult to create an atmosphere in which they can do so again.

Harvard Professor William Ury, the author of seminal works such as Getting to Yes and Getting Past No, has developed what he calls a BB3 strategy which, if applied, will ensure that the parties get the most that can be achieved out of mediation. BB3 stands for ‘Balcony’, ‘Bridge’ and ‘3rd Side’.

‘Balcony’

Disputes generate a lot of heat and that can so easily lead to hostility towards your opposite number. The ‘Balcony’ could be otherwise expressed as counting from one to ten while asking the fundamental question: ‘why am I here’? You only have to pause to ask the question to see that the answer is not to beat up your opponent and win a war of words but, rather, to collaborate with him or her to try and identify shared or at least overlapping interests which, if adequately catered for, could bring the dispute to an end.

Once you have paused to reflect, you will not let off steam but will find a way to work constructively with your opponent. You will take the time to zoom in and to go behind the entrenched positions and identify core interests. You will also zoom out so as to identify your BATNA (‘Best Alternative to a Negotiated Agreement’). In the context of a legal dispute, you may think that is winning the court case – but what if you lose? Or maybe even if you win, the relationship with the other party which may have taken years to build is no more – because after all the stress and strain of litigation neither party has any appetite to do future business with the other.

‘Bridge’

Having taken stock in this way, step two is to build a ‘Bridge’ that identifies the ZOPA (‘Zone of Possible Agreement’). The question is: how can both sides satisfy their core interests? This means examining what the options are to create a mutual gain. This will involve brainstorming and setting out ideas without passing judgement on the ideas themselves at that stage.

The essence is to listen: to put yourself in the other’s shoes.

To brainstorm with a view to developing options for mutual gain and to make it easier for your opponent to say ‘yes’ rather than ‘no’.

‘3rd Side’

The essence of the ‘3rd Side’ is to activate the constituency or wider community that will support the settlement plan. In a family dispute it could be the wider family or in a commercial case it may mean enlisting support of insurers, or of the wider body of shareholders.

BB3 in operation

Currently, it may be the Ukraine/Russia conflict that the world is focusing on but not so long ago it was the Middle East conflict and the following relates to the peace treaty brought about between Israel and Egypt, following the 1967 Six-Day War in which Israel conquered and then occupied the Sinai.

There were peace negotiations at Camp David hosted by US President Jimmy Carter. Both the Egyptians and the Israelis were determined: they had to have the Sinai. What was to be done given these apparently irreconcilable positions? Camp David provided the ‘Balcony’: the calm and peaceful setting where each party could pause and ponder. The talks were then structured in a way which encouraged brainstorming and the noting of ideas without placing any judgement on their respective merits or demerits at that point in time. That was the ‘Bridge’, which encouraged the formulation of creative ideas. Finally, the ‘3rd Side’ was the war-weary citizens of the two countries and the nations with interests in the region who had much to gain from peace.

It was the mediator’s (or host’s) insistence on ‘Why’ which led to the breakthrough. Egypt’s position was that it must have sovereignty over the whole of the Sinai and nothing less. Israel’s position was that its national security required it to occupy the whole of the Sinai and nothing less.

The solution that emerged: Egypt would have sovereignty over the Sinai but the Sinai would be demilitarised, thereby catering for Israel’s security needs.

If such intractable disputes where the political stakes are so high can be resolved thanks to this creative approach, then so of course can commercial disputes, where the focus tends to be on the money rather than on lives. It comes down to being prepared to listen and not preach!