How To Get The Most From A Required Mediation

Video Transcript

So what should you try to accomplish or expect to be accomplished when you do mediation? If you’re involved in a dispute with another party maybe it’s court case litigation. Maybe it’s some type of contract dispute or employment dispute. At some point, the idea of mediation will be presented or maybe even required. Many jurisdictions require that litigants in a civil case undertake mediation prior to going into the case. So what should you be trying to accomplish when you do the mediation? 

Well obviously if it’s a requirement, one of the accomplishments is getting it done so you can get to court. If the mediation can come to a conclusion that is satisfactory for you and for the other party, you can avoid having to go to court. You want to do that, believe me when I tell you. We have seen hundreds and hundreds of court cases over the course of our experience. At the end of every single case, even the winner of the case is not glad that they have to go through the process. The loser obviously hates it. The winner is no happier either, they may have gotten back to where they were before the case. If they had losses maybe they recover some of their losses but it’s never a windfall. It’s emotionally draining. You may not see that going in, but at the end of the case, you’re going to wish that you never even went there. Plus you’re going to be out a lot of attorney’s fees. And even not even the attorney likes going to court. If you talk to your legal representative and you ask them or even look at the activity in the case, most attorneys want to do all the activity by motions or depositions. They don’t want to go to court, even though they’re getting paid for it. The court is the least appealing and desirable activity that attorneys do, ask them. Don’t take our word for it. Ask them, we work with attorneys all the time. Nobody wants to be in court and the court itself the judge they don’t want you in court either. That’s why they’re suggesting mediation. 

So what can mediation do? Well, first of all, it can lay out the possible outcomes that you might have. It might start to give you an idea of your best case. A wishful thinking scenario might not be as practical as you would expect. It might also show where you and the other party how already have a lot of common ground. The fact that you haven’t spoken directly to one another or, you know once the conflict started it’s all been an argument. Might have blinded both parties to the fact that really, more than half of what you’re arguing about you agree on. There may be a couple of sticking points that could be resolved, but most of the time when we do mediation or any type of, conversation or dispute resolution, or even facilitation, we find the parties already agree on most things they just don’t know it. 

Here’s a good metaphor. Let’s say you’re driving down the street at night and a car’s coming at you with their high beams on, and now you put your high beams on. Now you’re both blind. You’re both not seeing what the other cars doing that can result in a head-on collision. That’s what you have with crisis litigation. You have a head-on collision about ready to happen. Your court case will be a head-on collision, maybe one or both of you survived a collision, but no one’s going to like it. So why not both turn off the high beams? See where you both have an agreement and come to some kind of conclusion. You don’t have to give up your principles. You don’t have to give up your pride to get the resolution you want. Most of the things that you and the other party want are probably aligned. And in fact, if there are places of dispute in which people don’t agree it’s very likely that the correct answer is neither of the parties’ intentions. 

So if there’s one point of contention that both parties want and they don’t agree on, it’s usually the case. Not always but usually the case that neither party is right. Both parties are wrong, they’re both extreme. And the right answer is somewhere in the middle. There’s that old saying, “there are three sides to every story. Yours, mine, and the truth” And with conflicts and court cases that’s usually the case. Usually, the answer is somewhere in between. Maybe closer to one side or the other, that’s fair enough. And sometimes one person is genuinely acting in bad faith, that’s fair enough. And, you know some people are just, hard to deal with. But a skilled expert mediator facilitator arbitrator whatever you want to call them can help find those common grounds and help diffuse the situation. Not in a way that you have to you’re not forced to accept anything. Look mediations are non-binding anyway. Whatever the mediator says they’re not going to tell you what you have to do when you’re forced to do it. All they can do is help bring the thing together, even if the mediation by itself doesn’t come to a settlement before the trial. Before the case goes to court. What it can do is make the court process more palatable. It can make it last less long in terms of time, it can cut down your legal expenses. Cause you might not have to argue so many points, some of the points may already be settled in mediation. You still might have to go to court to have a judge decide a few of the things, but mediation even if it doesn’t keep you out of court, it can minimize court, and that by itself can be a huge thing.

Mediation might cost three four or 500 bucks whatever it costs, but if you save one or two hours of your attorney’s billable hours, it paid for itself. Your attorney I’m sure is billing two or three or $400 an hour maybe more and if the mediation can help shorten the time that your attorney has to be in court or shorten the number of hearings. Or maybe shorten the number of back and forth communications with the other party because I’m sure you’re getting your legal bills. You’re seeing bill time for your attorney talking to the other attorney guaranteed you’re seeing that. Mediation can help reduce that. And look, we’re not taking any food out of the mouth of the attorney, you ask the attorney if they would rather your case be settled more quickly. They don’t want to just keep churning and billing your hours, they want to get it over with. They want to help customers and clients get to a conclusion. That’s what a good mediator can do. So consider that with any type of conflict whether it’s a full-blown court conflict or even something less intense like a contract dispute or, working together with a party that’s trying to maybe do some development. You want to have somebody that helps neutralize the conflict between the two, it’s almost like a translator, right? When you and the other part of your communicating, even though you’re both speaking the same language. Your intentions about what you want to do might almost make it seem like you’re speaking a foreign language because your needs are different than theirs. You want to have somebody that can see both sides and hear you out and hear what you have to say not interrupt you. Hear the entirety of your intentions and hear the other side too without you having to listen to them. You don’t want to hear the other side. It’s painful to hear what they have to say. So let the mediator hear both sides and put the parts that need to be heard on the table. Suggest some ways to diffuse and, downplay some of the key points. Maybe get to an answer but even if you don’t, keep the court process at a minimum. Let us know what you think of the comments about this type of dispute resolution from a neutral third party. And how it might help you or how it’s helped you in the past.

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