What a mediator can and cannot do, and why mediation is worth considering.
Statistically over 90% of all court cases settle, so the chances are very high yours will too. However, lawsuits and lawyers are expensive. Is a long bitter or drawn-out process with lots of expense really going to be the best way to get to a resolution? Every case is different, but experience and the statistics show us that four things contribute to cases not getting fairly resolved as early as they might:
- Not understanding the real costs of the litigation process. The parties start out with goals, fears, maybe anger and a lot of suspicion. Lawsuits are a long journey. At the end of the line, when all the costs in money, time and emotion are added up, do you really know whether it will be worth it? This is something both sides should consider, not just at the end of the process, but along the way.
- Poor understanding of what is realistic to expect from the process. Let’s face it, if both sides know how the case would turn out, they will usually want to settle. Sometimes, disputes are long, expensive, risky and involved because one side or the other does not clearly see the issues, know all the facts, understand the risk and expense of continuing. One side or another may not know how the law or facts will play out, or what a judge or jury will do. Or they may need information that they don’t have.
- Poor understanding of the other side’s needs and concerns, and where a “win-win” instead of a “win-lose” solution might lie. Sometimes it is hard to see the other side’s point of view. Many people, lawyers or clients alike, can put aside the sword and armor of the gladiator, to look at the entire situation objectively. We all want our lawyer to fight for us. Just as important, however, is the need to see the entire dispute in a broader light. Maybe, sharing information with each other can be something that benefits everyone. Maybe, what looks like game-playing by the other side is something else. These are things to explore.
- Distrust, suspicion and lack of knowledge. “I don’t trust them.” “They are hiding the ball” “They stonewall”. Mediators cannot make everyone honest or candid, but they can help the parties see where these tactics may not be in their best interests, and maybe to help start a dialog that results in mutual exchange of information.
Mediators are settlement coaches. A mediator is a trained professional whose job is not to judge or take sides, but instead to help the parties explore and understand some of these problems, and come up with a solution that works for them. In a mediation, both the parties and their lawyers get to talk to the mediator, both in joint sessions and in confidential private sessions. You, the parties, control the process. You can control the solution as well, if you can get to agreement.
What’s in it for you?
- A chance to explore what you want and need. Maybe you need information from the other side. Maybe you haven’t been able to think globally about where this all may end up. Maybe the other side can be convinced to give it to you so you both can see the case for what it is.
- A chance to see if the other side can begin to understand your side of the dispute, and maybe see that you both have something to gain from a fair settlement, and a lot to lose from not settling.
- Seeing if you and the other side can get close enough to a shared belief of what is fair or “do-able” so that it makes more sense to settle than continue to fight.
- If you cannot settle now, at least working out some preliminary agreement on some parts of the dispute. For example, you might end up agreeing how your lawsuit can proceed without wasting money, time and energy. Very few disputes cannot be boiled down to a few issues or problem areas that are what “it’s really about”. Maybe there are facts that both sides really do not disagree about. Maybe there are some “easy” issues that can be resolved. This leaves both sides free to focus their time and attention on what is really important. And maybe as a result, if you cannot settle now, you can come back later with a clearer understanding on both sides, so that you can reach agreement that is fair and acceptable to both sides.
All these are things a mediator can help you with. Very few mediations do not achieve some good for all sides. Not every mediation can result in a settlement, but many do.
Who we are. Steve Neuner is a trained and qualified civil, bankruptcy and foreclosure mediator who regularly serves in those capacities. Joanne Ventura is an active, trained and qualified family law mediator. Both have undergone the special training and ongoing continuing education needed for participation in these programs.