The Expert Podcast

Mediation can be an excellent method to resolve any kind of dispute—illegal dispute, a court dispute, even a personal dispute. Mediation has the ability to introduce a neutral, unbiased third party that can lower the heat on a conflict and can introduce finding the existing common elements where people already agree. But do both parties have to agree? Well, generally yes. However, mediation many times can be used to get both parties on the same page, where if one person works with a mediator, they may be able to pass along sound bites or snippets to the other party to get them involved with the mediation.

In fact, sometimes having the adversarial party contact a mediator directly can open up that chain of conversation. A mediator doesn't take sides. They don't pick who's right or wrong—even if somebody is right or wrong. They don't pick who is being correct and who's being incorrect. What they're trying to do is find common ground, and they take away that adversarial energy that exists between parties that are in conflict.

So even if you introduce a mediator to try to find that common ground and maybe bring the other side into the conversation either directly or indirectly—look, a lot of times the reason for a conflict is because one person has an axe to grind with the other. Or they may have some bad blood or just anxiety about the other person's history. They may be bringing mental baggage to the conversation or spite. And a third-party mediator who's not taking sides is easier to talk to, right? It's like a facilitator for that communication.

Whatever your conflict is, you want to have that resolved. Even if you want to have it resolved by you winning—you want to have it resolved. You don't want to stay in conflict forever. And a mediator will help find and navigate that pathway to it without you having to sacrifice yourself or make accommodations. The biggest reason for conflicts continuing is pride. People don't want to feel like they're a loser or giving in, or they don't want to feel like they're agreeing with the other side. A mediator can facilitate that.

In most conflicts, eighty percent of the conflict (in quotes) is already agreed upon. Eighty percent of what, in theory, is being argued about is already—people are on the same page. It's that small twenty percent that needs to be resolved, and in most cases there's even common ground within that perceived conflict. Sometimes it could be a trade-off—I'll give you this, you give me that. Sometimes it could be to settle onto things that are agreed upon and leave the other ones for later.

A mediator doesn't have their heart in the game. They don't have any particular conflict. They're not going to take sides. They're not going to betray you. They're not going to betray the other person. They're just going to try to facilitate and navigate a solution to get whatever conflict it is resolved—to take that headache, heartache, and maybe even anxiety from an unknown consequence. Because remember, if you let a third party decide on the answer—like a court—you're at the mercy of what that decision is.

A mediator doesn't give an order decision, right? They can't say, "You have to do this and you have to do that." A mediator tries to facilitate a resolved answer from the two parties. I'm sure you would rather have some input on your resolution rather than having somebody slap a gavel on the court bench and say, "This is what you have to do." Once that's done, it's done—you can't undo that. So having a mediator help facilitate it gives you a lot more input on what the answer is. So you don't have to just swallow whatever a court or judge or a jury tells you, and you have more input on what the answer is going to be.

And you might think, "Well, if I go to court and have an attorney and I can argue my case, that’s my input." It may be, but you don't have the final say—the jury has the final say. And from seeing thousands of court cases over the years, I can tell you that whatever opinion any party has—your side or the other side—the same way that you look at the other side as being 100% wrong, and the other side looks at you as being 100% wrong, and you just can't understand it—how could they not see that this is true?

Well, the jury or the judge, whoever's deciding on it, they're going to think both of you are 50% wrong. Right? You think the other side is 100% wrong, they think you're 100% wrong—that jury or judge in the middle, they're going to think you're both 50% wrong. So you're at risk of being 50% penalized for whatever position you have.

Where coming together and having a mediator find the common ground, find the common areas of agreement and facilitate—put together an answer—saves you from having the gavel come down on you with an answer you may not like.