The Harder you fight to hold on to specific assumptions,
the more likely there is gold in letting go of them.
John Seely Brown, Former Chief Scientist of Xerox Corporation
Most of us assume that mediation is about dispute resolution. We are so locked into the idea that mediators help parties resolve their conflicts that we cannot see the real prize – which is to help parties make better deals!
We are so entrenched in this conviction that, when you train to become a mediator, the roleplays you experience are nearly always about disputes. Rarely about situations where there is no dispute (or, at least, not yet). But dealmakers still find it extremely difficult to engage in true interest-based negotiation. Most negotiations remain positional right up to closing. And closing is often just the beginning, not the end-game. Deals that are based on positions rather than interests are less likely to stand the test of time, and more likely to generate problems after the deal has been done – for the simple fact that underlying interests have been papered over, left on the side, even ignored. But they don’t go away!
Some enlightened mediators and parties have realized the value of using mediators to cut deals and this absolutely natural application of mediation is likely to gain traction among those wise enough to realise that they can negotiate more effectively if a neutral person is engaged to manage the process on the parties’ collective behalf.
This section of the IMI website pulls together some practical and academic material on the subject in order to stimulate ideas and debate.
If, after reviewing this material, you conclude that it would be helpful if deal mediation were to be regarded as a distinct competency – please email us and let us know!
Materials on Deal Mediation
1. The article that set the ball rolling in 2000 was by L. Michael Hager and Robert Pritchard entitled: Deal Mediation: How ADR Techniques can help achieve durable agreements in the Global Markets. The article was published in the ICSID Review Foreign Investment Journal of the World Bank Group and subsequently reprinted by the University of Dundee Centre for Energy, Petroleum and Mineral Law and Policy.
2. Scott R. Peppet, Associate Professor of Law at the University of Colorado School of Law wrote the leading academic article “Contract Formation in Imperfect Markets – Should we Use Mediators to Make Deals?” (19 Ohio St. J.Disp. Resol. 283 (2004))
3. In 2006, an article was published (Managing Intellectual Property, July 2006) relating how a neutral had acted as an arbitrator and subsequently as a mediator to assist two parties in a deal involving the sale and purchase of business assets.
4. On November 1st 2007, the annual meeting of the Union Internationale des Avocats (UIA) in Paris held a session on Deal Facilitation in which a roleplay was enacted which involved two business parties, who were not in dispute, negotiating a deal with the help of a neutral facilitator. The deal facilitator was Manon Schonewille, Executive director of ACB Group in The Netherlands, who contributed two checklists for delegates considering deal facilitation (below).
5. On February 6th 2008, the ABA Section of Dispute Resolution held a live webcast on Deal Mediation chaired by Joan Stearns Johnsen. Several of the participants contributed materials:
6. Assisted Deal Making article by Charles Middleton-Smith and Edward Moore first appeared in the July 2007 issue of the newsletter of the Mediation Committee of the International Bar Association (Vol 3, No 1), and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association 2007.
7. Moving beyond ‘Just’ a Deal, a Bad Deal or No Deal. This chapter, by Manon A. Schonewille and Kenneth H. Fox, explains 'How a Deal-Facilitator Engaged by the Parties as a 'Counsel to the Deal' Can Help Them Improve the Quality and Sustainability of the Outcome'. Chapter 5 in the book ADR in Business: Practice and Issues across Countries and Cultures, Volume II. By Arnold Ingen-Housz (editor).