Ontario Chief Justice Winkler recently gave a speechon mediation – and the power of “no”. He proposes a different mediation style which does not always seek agreement. Consensus is not always possible or always laudable. Although the majority of disputes can be resolved, there may be times when it is important to understand each other’s position and agree to disagree:
Mediation, as it is often practiced, can create intense pressure to settle, and for some this can have a stifling and even silencing effect. Parties may be concerned that they will be brow-beaten into making agreements against their will or better judgment. Such individuals might refuse mediation or participate only reluctantly.
A good mediator will be alive to these legitimate concerns and address them openly and sympathetically. It may even be necessary to go further than this and question whether agreement should even be sought.
…
…we need a new paradigm of mediation, one that allows for disagreement without regarding it as a sign of failure. I propose that sometimes it may be productive to begin a mediation session by explicitly abandoning the goal of agreement. We can reach understanding without reaching agreement. Rather than “getting to yes”, sometimes we should be content to be “accepting no”.
What is the value in not reaching agreement? Winkler talks about the importance of receiving, understanding and tolerating competing perspectives, even if you do not agree with them:
Understanding requires insight and empathy; it cannot help, therefore, but remove hostility and rancour. It takes the dispute out of a disagreement; it removes the “in” from indifference. When that happens, parties will find that they can continue their relationships, even where agreement is not possible, or even desirable.
In this way, even an “unsuccessful” mediation can be viewed as a qualified success, if understanding and tolerance of an opposing view is achieved.