The Expert Podcast

So you're thinking about doing a mediation to help you with some conflict, litigation, or court case, and you're wondering what's going to happen in a mediation? Let me start by giving you an example of an introduction or the beginning of a mediation session. What you're going to expect when you first walk into that room, or if it's done remotely, virtually, what's going to happen. You'll have a certified mediator who is going to introduce the process, going something like this:

First of all, let me tell you what you can expect as participants in this mediation so you can envision and see the day. First of all, all the parties here need to be familiar with each other. My name is Dave Pellegrinelli, I'm your mediator, and I'm going to help facilitate you through this process. Understanding it's very hard, I know you probably have a lot of concerns and maybe even fears about what's going to happen, and we'll take care of that. You're in good hands, but assuming that you know each other somewhat from the prior history of this case, we maybe can make some introductions. If there's attorneys involved, we can make sure that everybody knows who the players are here.

That being said, first, let me tell you that I understand that you have concerns. Part of it's that you don't know what's going to happen today. You're coming into this blind. I know what's going to happen because I've done this before. You may not know what's going to happen. Your attorneys may know a little bit about this, but even if they do, I still would like to go through the details for those of us who may not have been through this, or even there may be some differences in how this is done versus other ones. You probably have some apprehension, some fear, maybe even feel some pressure. You might feel like you have to do something, that you're going to be forced to do something. None of that's going to happen. You are totally in control of this process. All of the results of this are completely voluntary.

One of the things that you always want to have in your mind is the mediation process is 100% voluntary. Unlike a court where if a court says something, you have to do it. Mediation is voluntary, and I'm here to find a solution that you already have that you don't know about. I'm not here to try to force you to do anything, coerce you to do anything, pressure you to do anything. I'm here to find a solution that already exists, that just happens to be hidden right now because of the history of the case.

So first, let me tell you that I appreciate you being here. Showing up is 99% of the success. This is hard for everybody. Think how hard it was for you to agree to this, to come here, to make arrangements, to have to think about facing your adversary, to have to think about being in a room with people you don't know, with me, who maybe you don't know what my position is or what I'm going to do to you. Remember the fear and concern that you have. Also, remember the other side has it too. The person you're across the table from, the person that you're here with, they have that same fear and concern you have, and they showed up too. Appreciate them for showing up just like we all appreciate you for being here. That's a big step.

Now specifically, I'm not a judge, I'm not a jury, I'm not an attorney or a government agent. I'm not here to pressure you into doing anything in particular. In fact, I'm here to take the pressure off of you. I'm here to see through the trauma and drama and toxicity of a conflict that we all have. There's nothing wrong with you or the other party for having conflict. We all have conflict in life. It doesn't mean you're defective or a bad person, or the other party is either. It just means that things get out of hand. I'm here to see through that and discover the solutions that really already exist that you may not be able to see, that you're blind to.

So I'm going to tell you a story, then I want to hear your story. When I was in high school, I had a driver's ed teacher who told me a very interesting story about conflict. You know, when you're driving down the road and somebody puts their high beams on and you're driving at them, the driver's ed teacher told me, "Don't put your high beams on too, because now you have two blind people. They can't see." And the same thing is within a conflict. If another person is doing something that's blinding you with anger or fear, you might do something back, and now you're both blind. The purpose of mediation is for everybody to turn off their high beams.

The first thing that's going to happen today is I wish for you to tell me your story about your case. Tell me your story about your position, the details. I want to hear them. I want you to be heard. I'm going to actively listen and actively solicit clarification. I'm not going to interrogate you, but I'm going to ask you to get more details about really what your story is. Let me ask about your thoughts that you have behind the facts of the story. The facts of the story are only part of the story. What you're thinking behind it is very important to me. Some of this we'll do all together, some of it we'll do in one-on-one sessions with one party separately. That way you can be more open and maybe more vulnerable.

Remember that in those separate conversations, everything you say is confidential. I can't go back and tell the other party or vice versa. It's all confidential, so you can say whatever you want. You can even be vulnerable about what you're willing to do or not do. Some of it will be all of us, and even that is confidential within these confines. It's normally not subject to subpoena, not subject to public records. There's no court reporter here, nobody taking this outside of this room.

Also, remember that when you're saying something and you're saying your side of the story and your facts, the other person might have a difference of opinion, and vice versa. When that happens, I'm going to ask you for a favor: I would greatly appreciate it if you hear something said that you don't agree with, even strongly, don't agree with it. Let it go. This is not evidence in court. You don't need to object if somebody says something that's not true. Not arguing with it doesn't mean you agree with it. Let that vent out. Let it come out of the other person's thoughts. Sometimes just venting something makes the problem go away. Have you ever had that happen in your life, where you just want to get something off your chest, and then it's gone? Let those things come out. Don't argue with them. Don't try to tamp them down if you can. I know it's hard. I know it's difficult, but if you can, that would be greatly appreciated, and I would appreciate it.

Remember, there's no record of this. No one's agreeing to anything. Try to hear something you haven't heard before. If somebody is saying a fact or statement you don't agree with, even if you've heard that before, try to read between the lines and pick up subtext. What do they mean by that? Obviously, if somebody says the moon is made out of green cheese and you know it's not true, read between the lines and try to think of why a person would say that. They obviously don't believe it to be true. Maybe they just need to communicate something or get something off their chest, or they're just desperate for help. During these conversations, be nice.

Don't yell and scream. Don't swear. Don't call somebody a jerk. If you have those thoughts and feelings, wait until we're in a private session. You want to yell and scream? Yell and scream at me in private. I can take it, right? Obviously, within reason. You know, don't get personal. This is valuable time. Negative energy takes away from this valuable progress. If you want to yell and scream, do it at me in private. If you want to even yell at the other person, do that when you're back in conflict. If we don't come to a resolution in this setting, the valuable time moving forward can be extremely helpful to the overall result.

Who's helping you with this? Me. I know what to do. You're in good hands. I'm here to help. I'm an expert at this. I'll tell you a little bit more about me as we go along. I don't want to make this about me. This is your time, and the primary focus of this is you and your solution. As you say things, even if you say something that you recognize later was ridiculous, or you just wish you didn't say it, remember, I'm not judging you.

I know that in conflict, in times of stress, people say and do things that maybe aren't reasonable. I do it all the time. I'm a human being. So I'm not judging you. So don't feel bad if you say something that you regret. Just get it out there.

What about being impartial? You've heard of, "You want somebody that's impartial?" I am partial. I'm partial to a solution. I'm partial to achieving a result. I'm not partial to one side or another. I'm partial to the result. I will always be laser-focused on that result for both of you, for all the parties involved. I have an opinion. I'm not a robot. My opinion is about me, not you. My opinion is that I should make this work. If it does not work, I have failed. You haven't failed, right? My opinion is that I should make this work, so I'm putting the pressure on myself to make it work. Take the pressure off of you. You don't have to do anything. Let me shoulder the burden and let me do the work. Just contribute to it as you see fit.

Now, at the end of this activity, we can have that agreement, that resolution. If we do, we'll formalize it, write it up, and you can go on your way and never have to think about this again. Put it behind you. You don't have to worry about legal fees, court fees, attorneys' fees, or what the court could put on you for problems. I'm not going to do too much carrot and stick. I'm always going to focus on the positive. But if we come to a resolution, all this is behind you.

Think about all the pain and drama you've had for the last weeks, months, maybe years with this conflict. If we have a resolution today, it's all behind you. As an alternative, we could have an impasse. That means we don't have an agreement. If we have an impasse, again, I will consider that I failed, because I couldn't see that solution.

As your attorney probably told you, this is your last chance before it's out of your control. Take advantage of having control.

A couple of last things to think about: As parties in a conflict say things that they object to, or complain about, or they say wrong facts, these are just steps in the road to a solution. A lot of times complaints aren't really hard fast objections. They're just wanting to get it out there. As an example, if you ever went to a store to buy something and said, "Oh man, that's too much money, that's too expensive, that price is too high," but you still bought it, right? That observation was just you kind of getting your feeling out there, but it wasn't a permanent block to you actually taking action.

So, if other parties, and even yourself, say things that seem like they're digging in their heels, remember sometimes it's just you want to say what's on your mind and take it with a grain of salt. So if you hear wrong facts, unrealistic opinions, don't feel too bad about it. Just know that's part of it. The ultimate goal is to get a solution.