The Expert Podcast

Mediation of an ongoing conflict can be a tremendous way to avoid a lot of expense, a lot of headache, a lot of drama, and anxiety. But first, you have to get into the mediation, and if you're an attorney, you have to get your client into the mediation. How do you do this? Well, one of the biggest obstacles to getting people to mediation is this feeling of "I have to do mediation," like it's a punishment or an obligation. Reframing and looking at mediation as "I get to do this" versus "I have to do this" sometimes makes all the difference in the world.

If people feel like they're forced into it or it's a requirement, sometimes it's kind of like getting a kid to eat spinach. If you say, "You have to eat your spinach," they might not want to do it. But if you say, "You get to do it," it makes it sound a little bit better. Mediation is actually a huge benefit to all the parties. It avoids the cost, it avoids the publicity—everything in mediation is private. It avoids the drama, where you have a lot of conflict, and it's different from settlement negotiations.

With settlement negotiations, you have two different people fighting. It's not you and the other party; it's just maybe two attorneys fighting. It doesn't change the fact that you still have combatants, you have disputants—you just have different people doing the fighting. And sometimes they're more powerful people doing the fighting, so it can escalate the fight. Mediation is something completely different. It's a neutral third party, and it's an alternative dispute resolution. It's something where you don't necessarily have two people directly fighting with each other. That neutral can help deescalate and be in between both parties.

So look at it as an advantage. I get it; it may seem like something that's annoying. It may seem inconvenient, but in many cases, it's the difference between having to go through a long, involved litigation process and the difference in having resolved things more comfortably. Don't feel like you have to have your day in court. Sometimes that day in court costs you more time, aggravation, and money than letting a mediator do the same thing the court would do, just with a more neutral and de-escalated process. Look at it like you don't have to do it; you get to do it.