The Expert Podcast

So who are you currently fighting with? Maybe you have a lawsuit pending, maybe there's a divorce in the works, maybe you just had a spat with a neighbor over some issue. Either way, you're probably in some low-level or minor conflict with somebody. At any point in life, like most people, you probably want to avoid conflict. You want to avoid disputes with people, which is a good thing. Nobody likes to be in disputes, and you don't want to escalate it. So how can you de-escalate and extract yourself from a dispute without giving in and saving face? You want to make sure that your rights are respected and your positions are honored, but you don't want to have to fight it out to the death, especially through litigation. Mediation is a way to do this.

Now, when you hear mediation, it sounds like kind of a boring requirement, but really, it's a very effective, ingenious way to escape the clutches of a conflict. This is a really good article that describes some of the unknown effects of mediation.

This is the boring part: Mediation is a collaborative form of dispute resolution that allows the parties to work together, blah, blah, blah. When you hear that, you probably sound like Charlie Brown's teacher, putting you to sleep, right? But there is something to this. What do we mean by that? In any dispute, the two people involved, called the disputants, have different styles. Some people come with a business mindset, some come to the dispute with an emotional mindset, like they want to be seen and heard and feel like they're being disregarded. Either way, those mindsets have to be taken into account. It's not just dollars and cents, it's not just cold hard facts. The value that a mediator brings to the table is that they have to know what these personalities are because that's how the dispute will be resolved. In most cases, the actual facts in dispute are really not that big. Many times, the dispute is already 90% agreed upon. There's just a principle or moral factor that's keeping the parties apart. So what does the process look like?

Here's the thing: The mediator is not the judge. They don't make a decision and tell people what you should do, right? One of the biggest factors of mediation is what's called the self-determination cannon. That means all the parties involved, both parties, have the ability to walk away at any time. They can make the final decision. They don't have to abide by what the mediator says. So don't feel like you're forced into a corner. The mediator, though, can tell you what the possible deficiencies in your case are or the advantages are. You might be able to tell the disputants, as a mediator, "Look, this is where you have a good point. Maybe this is where your point is clouded by emotion," and tell the other party the same thing. That way, the parties can see objectively, without being blinded by rage or revenge or fear or anger or resentment to the other party, what the actual facts are and how it's going to be probably decided in court. The mediator can give you a facilitator resource. They'll control the process, but they don't control you. They control the safety, security of your negotiation or conversations with the other party. They can draw out the important things and tamp down to things that aren't important, but they don't control you. What you have to do. So it's the best of both worlds. You get somebody to help give you a convenient forum to resolve your dispute, but without backing you into a corner.

A lot of times, what we say in mediation, it's the last chance to control your destiny. Once you get into court, once you get into discovery with attorneys and a courtroom process, it's out of your hands. You're just along for the ride. Whatever the court says, you have to do. Where mediation, you can still have some control over it, and you have somebody helping you take your needs and make them stronger with the other party, and vice versa. So mediation is kind of a black box. A lot of people don't know what goes into it, but it's a very valuable way to avoid the consequences of a dispute or a conflict that many times become a lot worse than you think they are. Even if you say, "I want my day in court," sometimes afterward, you wish you didn't have your day in court because court is not fun for anybody, even the person who prevails. Usually, regrets having to go through that process.