As part of my preparation to teach a class on mediation confidentiality, I reviewed the Uniform Mediation Act with all of its comments (UMA). In doing so, it struck me that although mediation is extremely popular and common place, it would be good to remind ourselves why we should mediate rather than litigate!
First and foremost, mediation helps to settle a dispute or litigation early on in the process before parties become entrenched in their positions. Not only does it give the parties control over both the process and the substantive outcome (unlike a trial or arbitration in which a third party (i.e., stranger) makes the decision), it allows the parties to reach a resolution that meets their needs and interests. Many times, those needs, and interests are non-monetary or ones that an injunction cannot address. So, obtaining a judge/jury verdict still leaves an emptiness-a catharsis has not been obtained. A party may obtain a judgment but in the words of the Rolling Stones, “I can’t get no satisfaction.” (UMA at 6.)
Closely associated with this is the notion that successfully mediating a matter early on in the conflict process – reaching a resolution- “…can reduce the disruption that a dispute can cause in the lives of others affected by the dispute.” (Id. at 10.) As examples, the commentary lists the children of a divorcing couple or fellow employees in an employment dispute or indeed, customers and clients of a business. (Id.) Obviously, it also reduces the disruption- be it physical, emotional, or mental etc. of those involved in the dispute.
While I have mediated thousands of disputes, I, unfortunately, have not given this aspect much thought. But, indeed, it is a very valuable aspect. While I may see the parties for only a half day or so, the dispute is something that they have lived with for months if not years. They have had to be available to help respond to discovery, for a deposition or otherwise answer questions from their attorneys or go to court. If the dispute involves neighbors (e.g. a barking dog), it is one that the parties must live with every time they step out of their front door. Living with such stress day in and day out is not good. Hence the value of early mediation and resolving the matter!
And then there is mediation confidentiality. While not absolutely absolute as exceptions do exist (to be discussed in another blog!), in most instances, what is said in mediation stays there. Consequently, parties can be quite candid with each other, admitting things that they would otherwise keep to themselves. (Id. at 6-7). I have often said that a lot of disputes arise due either to miscommunication or a lack of communication. With the promise of confidentiality, the parties can say what is really on their respective minds, how they (mis)interpreted a comment or action of the other party and thus clear up the misconceptions and get down to “brass tacks” and resolve the matter. I am a firm believer that a matter will not settle until and unless each party knows what the other is REALLY thinking, and thus what are their needs and interests. Mediation confidentiality allows that to happen: to say what you are REALLY thinking without fear that it may come back to bite you later on.
And then there is the value of the third person aka mediator with her impartiality. As I have mentioned many times in these blogs, we all have implicit biases. Thus, if the parties try to negotiate directly with each other, their respective biases will no doubt reveal themselves, and the parties will not get anywhere. However, with a mediator, an impartial party is thrust into the middle of the dispute. The mediator does not take sides and looks at the dispute objectively, or “from the balcony.” As either a facilitative or evaluative mediator, she will point out the flaws or weaknesses in each party’s positions by asking crucial questions (e.g., “Have you considered…?”) in hopes that each party will look at the matter from the perspective of the other party. When the parties realize that they are NOT a hundred percent (100%) right, they are on the road to compromise. And by being able to be candid and honest with the mediator, a party can convey proposals for resolution that she might not want to say directly to the other party. Admission is sometimes good for the soul, and to be able to do that to a third party who must keep it to herself and remain impartial can do wonders.
Finally, I think one of the most important aspects of mediation is self- determination. Each party has control over both the process and the substantive outcome. If she wishes to settle, she does; if she doesn’t like the terms being offered, she can walk away. Deep down, no one likes being told what to do or what she can’t do. Mediation allows a party to take control of her own destiny by making an informed choice about how to proceed with the dispute.
So, why mediate? It beats the alternative!
…. Just something to think about.
There are two eternal truths about litigated cases: 1) There is a tremendous likelihood the case will be settled without trial; 2) The settlement could occur any time from the...By Jeffrey Krivis