Legal Updates

Mediation in a Nutshell

Mediation typically occurs at some stage of the adversarial process. That process involves parties who are focused on the strengths of their respective positions/cases, and who are committed to convincing a decision maker that the other side should be defeated. The challenge for mediation is that these same parties are suddenly asked to shift gears, slow down, take a breath and come at resolution of the dispute in a very different way.
What mediation isn’t
The mediation session is not a trial or an arbitration, and the mediation process is not about deciding who’s right and who’s wrong. In a way, the mediation process is the inverse of a trial in that the parties themselves are the decision makers.
Perhaps most important, mediation is not about outdoing the other side. It’s not about winning or losing in the classic courtroom sense. The mediation process is a negotiation that may, or may not, result in agreement and dispute resolution. The negotiated result, if there is one, must seem (feel) fair on all sides to be acceptable and sustainable.
What mediation is
Thus, if the mediation process is to have a hope of being successful, each party must accept the challenge to identify and then focus on and evaluate its own weaknesses. Further, each party must be willing to listen to, accept, and evaluate the other party’s strengths.
The common perspective among the parties must be the following:
• Mistakes were made and things could have been done better.
• There is no pride of authorship.
• Each party had some participation in those mistakes.
• The dispute would not have arisen otherwise.

Those mistakes come at a collective cost that must be shared (compromised) if there is to be a mediated resolution. The benefit of a mediated resolution is that it avoids the cost and risk of litigation. This benefit must entice each party to stop looking back (except to define lessons learned), swallow hard, get on the right scale and commit to resolving the issues and moving on.
So, the victory in the mediation process, if any, is in resolution of the dispute. To get to that victory, each party and their counsel must accept the fact that a well-advised resolution may be seem painful, may feel like an abdication of principle, but it manages and avoids otherwise unmanageable and unavoidable risk. A mediated resolution also minimizes opportunity cost so that resources can be put back to constructive use in the life of each party. In short, a mediated resolution, though it may not make everyone happy, puts each party back in control, and therefore, adds value.

Getting There Check List – Mediator
The mediator must
 Bring understanding and creativity to the table
 Be a spokesperson for each side while maintaining credibility and trust
 Be a motivator, not an advocate
 Be the reality checker and manager of expectations
 Be an edge softener, and do so without ego – leave that at the door

Getting There Check List – Parties and Counsel
Each party and their counsel must
 Control their own myopia and their own emotional (and probably economically ill-advised) investment in the rightness of their position.
 Understand their own position weaknesses
 Check (counterproductive) “principles” at the door
 Have the courage, knowledge and authority to accept compromise.
 Know, going in, the perimeters (absolute boundaries) and parameters (variables) of acceptable compromise.
 Be able walk in the other party’s shoes with empathy, without pride of authorship and without personal investment in a litigated win.
 Get on the right scale and stay there – listen to Pogo: “We Have Met The Enemy And He Is Us