Image for post
Image for post
Mediate to Make Time to Hang Out With the Water Lillies

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:

  • confidential

than litigation.

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:

  1. 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?

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/

Written by

Lawyer, Teacher, Mediator. Worked on many political campaigns and learned nothing will help until we enforce our laws, particularly laws against corruption.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store