International Cultural Heritage Disputes involve multiple parties and stakeholders.

In face-to-face negotiation, the processes of:

(i) ‘creating value’ – i.e. ‘expanding the pie’; and

(ii) ‘claiming value’ – i.e. ‘dividing the pie’, are inextricably linked.

Consequently, each party in dispute will perceive the other’s objective as being the claiming of maximum potential value.

So, from the start, ‘negotiation’ is perceived as being a ‘zero-sum’ game.

This results in competitive individual moves to ‘claim value’ which drive out ‘cooperative moves’ to ‘create value’ for the mutual benefit of the parties.

This is known as the ‘Negotiator’s Dilemma,’ and results in poor agreements, deadlock and conflict spirals.

Q. – So how can these two ‘processes’ be separated in Mediation in order to avoid an adverse outcome?

Answer – The Mediator and Participants need to ‘design’ a ‘process’ which can lead to the ‘collective acceptance’ of a mutually beneficial ‘formula’ for resolving these issues, and managing the ‘tension’ between ‘cooperative ‘moves to ‘create value’; and ’competitive’ ones to ‘claim’ it.

In the Mediation of a multi-party International Dispute, a three-pronged Mediator strategy which enables this is:

(i) ‘Create value’ by inventing a ‘process’ to emphasize ‘new information’ and  ‘understanding’.

(ii) ‘Create value’ by fostering development of a mutually advantageous ‘formula’ in substance.

(iii) Manage the ‘creating/claiming tension’ in the process by building  ‘consensus’ around this ‘formula.’

This is all about ‘structuring’.

So, in order to optimize the Mediation process from the outset, ‘Structuring’ – i.e. a mutually beneficial and acceptable ‘formula’ or ‘framework’ for Mediated talks, needs to be discussed, explored, developed and agreed before Day 1.

Where Participants are located in different time zones, this can be achieved using online pre-mediation meetings, e.g. by Zoom/TEAMS.

As far as I am aware this approach is not taught on Mediation courses in the UK, and is anathema to certain Schools of Mediation.

However, to me the benefits of holding pre-mediation meetings in order to devise a ‘Formula’ based upon ‘Structuring’, is obvious.