Mediation Misconceptions & the NHL Lockout

Many of us are unclear on what mediation is or how it can function as an effective dispute resolution process. The recent attention that the media has given to mediation in light of its role in the ongoing NHL lockout has served to both highlight this and provide an opportunity for clarification. 

1. "We're not interested in mediation...It was of no value because of the position of the parties.”
   – Gary Bettman

Does Mr. Bettman understand the goal of mediation?  

Mediation is often not focused on the position of the parties (what they feel they are entitled to) but rather their interests (why they want it). A mediator may attempt to determine if the parties have shared or complementary interests that can be focused on to expand the realm of possible solutions. If a solution can be found that serves to satisfy the interests of the parties to the dispute, their positions may be irrelevant. 

Often in the course of disputes, parties dig in their heels and entrench themselves into their positions (i.e. “I want x amount”) rather than focusing on their interests (i.e. Why is compensation important? What other factors are important?). Identifying underlying interests and considering how such interests can be satisfied can lead to a resolution that satisfies the parties beyond a mentality of winning and losing. 

2. “Gary Bettman does not require a mediator to show him where the middle ground lies.”  
   - Mark Spector, Senior Columnist Sportsnet.ca

Mediation is not about finding the middle ground or compromise; it is about thinking outside of the box and finding the best solution available to the parties with a view to reaching a win-win solution. 

A fitting and popular analogy is shared by Roger Fisher and William Ury in the best-selling book Getting To Yes: Negotiating Agreement Without Giving In where they share the story of 2 sisters fighting over an orange. Cutting the orange in half may be the middle ground, but understanding that one sister’s interest is to eat the fruit while the other is after the peel for cooking can allow for a better solution for everyone.

3. Suggestion that individual caucusing with a mediator rather than the owners and players’ association meeting in a joint session is evidence of a lack of progress. For example:

“After a failed day Wednesday when the parties on either end of the hockey labour dispute never met with each other....” – Ira Podell, Associated Press

The mediation process is not set or standard; it is not a cut and dry approach that applies the same way to all disputes. It is a process facilitated by a mediator that is ultimately controlled by the parties and can accordingly take place in a variety of ways – increasingly so through technological advances. 

Separating the parties and conducting an individual “caucus” with each of them is a fairly traditional and often effective mediation tool. Caucusing is not a clear indication of a lack of progress; it may very well be a sign that great progress is being made.

Consider the Camp David mediation of 1978. Egyptian President Sadat and Israeli Prime Minister Begin bore such hostility toward one another that direct interaction would have been difficult, if not impossible. Caucusing was utilized to bridge the gap and work toward the resolution that ultimately earned President Sadat and Prime Minister Begin the Nobel Peace Prize.