Yesterday, I had a long wait in the hospital for a family member (nothing life threatening) and while I waited, I tried to come up with reasons people might want to mediate. When working with people who are deciding how to settle ongoing litigation or resolve a family, neighbor or business dispute or find solutions for a senior or disabled family member, mediators describe the benefits of the facilitative mediation approach. They tell potential customers that mediation is more:
- time and cost effective, and
- open to creative solutions
That’s all true but it only describes the mediation process. People might want to learn about mediation process but they are and should be more interested in learning the ways mediation can benefit them. How does a person in the middle of a dispute with a family member or a neighbor or a company that they do business with, or how does a business owner in a dispute with a vendor or a competitor or a customer benefit from mediation more than her or she would benefit from traditional, attorney-led settlement techniques or litigation?
Thinking about the benefits rather than the mediation process, it finally occurred to me that people benefit from mediation for the same reasons I decided to refocus my law practice to mediation. Here are some of my reasons:
- Dialogue. You get to build a dialogue and engage with each other rather than arguing over positions and often frustrating legal technicalities. In your dialogue, you can talk about what you really want out of a settlement, and how, when and why you want it. You can discuss how the dispute has affected you and your family. You can explain what is and is not important to you. Then you listen to the other parties and learn why they are acting and feeling they way they do. You can make and listen to suggestions and value the pros and cons for each. For example, if you and your neighbor disagree over a boundary line, you can spend some money fighting it out using lawyers and competing surveys. You can have your lawyer research the title back in time to the origin of the property descriptions. You can make a claim and see if the title company will defend your boundary and cover any loss of land. You can bring your evidence, or more accurately, the favorable and admissible portion of your evidence, in front of a judge or jury who will determine the winner. You may win or you may lose, you may get some insurance coverage, but you won’t create your own outcome and the court’s outcome is likely to improve your neighbor relationship. In mediation, you can be honest and candid. You can explain why a particular line is important and learn why another line is important to the neighbor. Are there desirable trees or shrubs at stake? Do you need room for a dog run or a children’s playhouse? Are you concerned your land will lose value? Do you want privacy? Can your neighbor understand that? Can you understand your neighbor’s concerns? Can all or most wants and concerns be satisfied? Can talking through everything without having to worry about evidentiary rules or maintaining and defending a position help you find understanding, resolve the important issues and build a relationship that holds the agreement together and allows everyone to live as neighbors?
- Deal. By holding a dialogue rather than arguing positions, the parties learn more about each other’s needs and interests. Everyone can let go of unimportant issues or tangential disputes and get to the heart of the matter. One example is a role play used in mediation training. It’s called the story of the Ugly Orange. In the story, two competing companies need all of the few remaining ugly oranges on the market, each to rescue a dire situation. Many mediators-in-training work hard to divide the ugly oranges equitably but it’s just a compromise not a deal. The compromise leaves neither company with enough product to save the day and ensures the argument continues. However, those mediators-in-training who facilitate a dialogue learn that each side needs something different. They can join forces, take steps to build trust so they can work together and solve both dire situations. In your mediation, if you’ve told your story and listened to the stories of the other parties, discarded the unimportant, focused on opportunities and worked through options, you’ve built your deal. And, you and all of the other parties own the outcome so the deal is more likely to be satisfying and more likely to stick. Put it all in writing and then you are…
- Done. When everyone is heard and feels heard, and options have been discussed and rejected or accepted, agreement can be reached with no outstanding gripes, no leftover angst and no loose ends. You’re done and you’re done in less time and with less stress, no lost opportunity, fewer regrets, and less attorneys fees, expert witness fees and court costs. Living the agreement is easier because it’s your agreement. For example, I once facilitated a resolution for a blended family about to engage in litigation over the care of their senior parents and ultimately over an expected inheritance. They could have litigated, purchased expert testimony, experienced grueling and potentially hurtful depositions and spend the rest of their parents lives in court, and surprise, you can’t litigate the children’s expected inheritance while the parents are still alive. They chose to meet and hash it out. It was tough but they reached an agreement in a couple of weeks over the parent’s living arrangements, caregiving, spending and how to handle any future disputes over any inheritance, if any.
As an attorney, I’ve worked with clients who have taken firm positions over each and every aspect of every dispute. I’ve prepared stressed out clients for depositions and courtroom questioning. I helped clients answer interrogatories and gather documents for copying and disclosure. I’ve counted up my hours and sent out my bill and talked to clients concerned about payment and future costs that I could not promise would be one amount or another. I’ve kept up with litigation and hung onto cases for years until matters were resolved. I’ve analyzed caselaw and agonized over judges preferences and predispositions and all of the written and unwritten rules and customs of the courtroom. While I’ve helped clients, and won more than I’ve lost, I’m still not sure most of them came out ahead in terms of time, personal and monetary cost or true satisfaction with the process and outcome. I far prefer the dialogue, deal and done approach. I can only imagine you would too.
See my new mediation website and blog at: http://currentmediation.com/2019/02/20/dialogue-deal-done/