Chapter 9: Value Creation and Capture- The Art of Effective Mediation
Mediation is an art form, as much about creativity as it is about strategy. It’s a process that transforms tension into collaboration, mistrust into understanding, and discord into a symphony of mutual respect. At its core, mediation isn’t about taking sides or determining winners and losers; it’s about crafting an environment where every party involved walks away with a sense of value, fairness, and resolution.
The challenge—and the beauty—of mediation lies in its dual nature. On one hand, it’s about creating value by uncovering opportunities for mutual gain, like an artist discovering a masterpiece within a block of marble. On the other, it’s about capturing that value in a way that feels equitable, ensuring that no one leaves the table empty-handed. Let’s explore how mediators master this delicate balance, one case at a time.
Think of a mediator as a sculptor working on an unyielding piece of stone. At first glance, the rock might appear cold and unworkable, much like the hardened positions of parties entrenched in conflict. But the mediator knows that within that stone lies potential—shared interests, unexplored options, and pathways to resolution that were once obscured. The process of revealing those possibilities is nothing short of artistry.
Take Marianne, a seasoned mediator who stepped into a contentious dispute between two co-founders of a tech startup, Amy and Joe. Their once-thriving partnership had devolved into a bitter battle over shares and the company’s future. To an outsider, their conflict seemed insurmountable. But Marianne didn’t see an unyielding rock; she saw the possibility of something transformative.
From the start, Marianne focused on creating value by uncovering shared interests. For Amy and Joe, it wasn’t just about equity or decision-making power—it was about preserving the mission that brought them together in the first place. Both wanted the company to succeed, and both feared their feud was tearing it apart. By shifting the narrative from competition to collaboration, Marianne reframed their perspectives. Suddenly, it wasn’t about “me versus you” but about “us versus the problem.”
This is where the magic happens. When a mediator can help parties see their shared goals, the pie starts to expand. Marianne encouraged Amy and Joe to brainstorm options that went beyond their immediate grievances. Could they bring in an advisory board to guide decision-making? What about third-party investment to dilute tensions over shares? By exploring these possibilities, they moved beyond a zero-sum mindset and into a realm of creativity and growth.
But even the most innovative ideas can falter without a foundation of fairness. This is where objective criteria become essential. Marianne introduced industry benchmarks and expert advice as impartial measures to evaluate the proposed solutions. These tools shifted the conversation from subjective biases to grounded, pragmatic discussions. For Amy and Joe, it wasn’t about whose idea was “better” but about which solution aligned with industry standards and their mutual goals.
Of course, mediation isn’t just about ideas and numbers—it’s about people. Relationships lie at the heart of every negotiation, and Marianne knew that without trust and respect, even the best solutions would crumble. She took the time to remind Amy and Joe of their shared history: the risks they’d taken together, the successes they’d celebrated, and the challenges they’d overcome. This relational groundwork wasn’t just sentimental; it was strategic. It reminded them of their strength as a team and laid the foundation for a more cooperative dialogue.
Once the groundwork for creating value was established, Marianne turned her attention to helping Amy and Joe claim their fair share. If creating value is collaborative, claiming value can feel competitive. It’s here that the concept of BATNA (Best Alternative to a Negotiated Agreement) becomes a game-changer. Marianne reminded the co-founders of their individual BATNAs, underscoring the risks of walking away without an agreement. This wasn’t a scare tactic—it was a reality check. The cost of continued conflict far outweighed the benefits of compromise.
Marianne also encouraged assertiveness, but with a caveat: respect must never be sacrificed. She created an environment where both Amy and Joe felt empowered to voice their needs without fear of retaliation. This assertiveness, balanced by mutual respect, allowed them to negotiate from positions of strength rather than desperation.
As the dialogue progressed, Marianne introduced the idea of simultaneous multi-issue negotiation. Instead of tackling each issue in isolation, Amy and Joe began to see the interconnectedness of their concerns. A compromise on one front could lead to gains on another. This holistic approach transformed their negotiation from a tug-of-war into a puzzle—complex, yes, but solvable.
In the end, Amy and Joe reached an agreement that was as practical as it was innovative. They decided to bring in an advisory board to guide the company’s direction and implemented a phased re-allocation of shares tied to performance milestones. This wasn’t just a resolution to their immediate conflict; it was a roadmap for future collaboration. Marianne had helped them not only divide the pie but also expand it, ensuring there was enough to go around.
So, what’s the takeaway for mediators and attorneys alike? It’s this: Mediation isn’t just about resolving disputes. It’s about creating opportunities where none seemed to exist. It’s about using tools like objective criteria and BATNA to bring clarity to chaos. It’s about nurturing relationships while navigating conflict. And most importantly, it’s about transforming what could be a bitter ending into a new beginning.
Whether you’re stepping into your first mediation or your hundredth, remember that your role isn’t to dictate terms or force agreement. Your role is to create an environment where parties feel valued, heard, and understood. It’s about helping them see what’s possible and guiding them toward outcomes that feel not just acceptable, but transformative.
Mediation, at its best, is a dance—a symphony of voices, interests, and ideas coming together in harmony. And when done right, it’s not just about resolving conflict. It’s about creating something bigger than the sum of its parts.
So, the next time you find yourself at the mediation table, ask yourself: How can I not only help them divide the pie but also expand it? How can I turn discord into collaboration? And how can I ensure that every voice at the table feels like it matters?
Mitch Jackson | links