My Favorite Things About Mediation

My Favorite Things about Mediation

I love mediation.  I look forward to mediations. I welcome them, and I utilize them whenever possible. And I love serving as a mediator. What is my favorite thing about a mediation?  The people – also referred to as the “parties.” 

Mediation is Hard

I have interacted with clients and opposing parties in litigation for over thirty years. One universal aspect of mediation is the fear and confusion that parties feel who are in litigation. Parties, even the most sophisticated -- often the most sophisticated -- feel lost and frustrated by the process. It is complicated, confusing, aggravating, time-consuming, and expensive. It is not where they want to be and what they want to do. They are not only out of their comfort zone, they are at war in a foreign land.

Litigation is Harder

For litigants, the litigation process seems arbitrary – court rules, deadlines, procedures, they are all bizarre to them. Perhaps the most challenging aspect for parties stuck in the quagmire of litigation is the sense of utter loss of control. They are in unfamiliar territory, they don’t speak the language, and they don’t understand the process. They can’t speak to the other side. They can’t speak in court except when coached to do so as a witness. They are confused by objections: “objection, hearsay”, “objection, foundation”, “objection, relevance”, “objection, argumentative”. Argumentative?  It’s all seems argumentative to them.

Mediation Gives Parties Some Control

Mediation, while certainly not perfect, alleviates some of the trauma of litigation and enables parties to reassert control. Parties in a mediation are able to participate in a meaningful way with respect to their dispute. They can speak to the mediator, they can speak to the other side, and they can say pretty much whatever they want to say without objection. Most importantly, they can choose to resolve their dispute by agreeing to an outcome they deem acceptable. Or they can decline to do so.  It’s their choice.

Mediation enables a party to extricate themselves from a conflict that they or others created but is no longer tenable. It allows for decision-making that is often absent in the courtroom. It allows for creativity – creating a solution that the law, a judge, or a jury may not allow. And it allows for personal participation. Parties feels more in control, more vested in effectuating the outcome, and more satisfied with an outcome that does not seem arbitrary or just.

Mediation is Flexible

I favor mediation at the outset of a case. This requires thinking outside of the box. In particular, it means thinking about how to get the information you need to reach an acceptable agreement before full-blown, costly, and time-consuming discovery. Mediation actually affords the parties an opportunity to share meaningful information within the confines of a largely confidential process. Since there are almost no rules to mediation, parties and their counsel can fashion a discovery process that works for them. What can be shared is only limited by strategic thinking and creativity. The same is true for how the information is presented.

Use Mediation to Your Advantage

What I am getting at is this: don’t let court rules and processes hamper your ability to arrive at an acceptable outcome through mediation. Use the mediation process and the mediator strategically, creatively, and meaningfully to satisfy the interests of your clients.