What is mediation anyway? Mediation is a facilitated dialogue between two disputing parties with the assistance of a neutral third party. Mediation is a discussion. It’s an exploration. It’s a safe space to explore alternative resolutions that cannot or won’t be ordered or determined through rights-based processes.
Why would you choose mediation instead of a rights-based process? Because YOU have a voice. Nothing is agreed to unless BOTH parties agree to the terms. Your interests are shared, and you use your own interests, the other party’s interests, and your mutual interests to generate options for resolution, instead of resolutions based on the parameters of strangers or a law that doesn’t consider the unique aspects of your situation.
Why else would you choose mediation instead of a rights-based process? Because YOU want to determine your future. You want a say in what happens next. You don’t want to abdicate responsibility for your decisions to someone who doesn’t have to live with the consequences. You want to be intimately involved in building a resolution that is interest-based and future-focused.
Is privacy important to you? This is another reason you may choose mediation instead of a rights-based or adjudicative process. Your business is your own, and you don’t need everyone knowing what was said, the intimate details specific to the situation, or the resolution reached to resolve the dispute.
If determining the outcome that works for you and the other party involved is important to you, if keeping things private is significant, and coming to a creative resolution that may be outside of what a court could order or what might be negotiated through a legal process is something you’d want, then mediation is the process option for you.
Mediation is a confidential, private, and without prejudice process. In mediation, parties can share their perspectives, work to better understand one another, and strive to reach agreements to resolve their disputes that meet their individual and shared interests without the pressure of a rights-based process.
When a mediated agreement is reached, parties may wish to seek independent legal advice. This can be helpful for checking the durability of the agreement. Sometimes mediated agreements are outside of what a court would order or what a lawyer would negotiate for the party. If the party is uncomfortable with that, they can return to mediation or otherwise negotiate something they are more comfortable with. Other times, the party may not care what might be ordered in court or what a legal process may result in; their priorities, goals, and values are more aligned with the agreement they have reached through the mediation process, through interest-based negotiations rather than what a rights-based process may or may not result in.
It’s important to know that mediation is one option among many. If your concerns are more about your legal entitlement and getting as much as you can through a rights-based process, mediation may not be your first choice. If it’s important to you to reach creative agreements that will meet the individual and shared interests of you and the other party or parties involved, mediation might be a process better suited to your needs.
Rights-based and interest-based resolutions can be complementary. Your mediator may point out certain legal rumble strips for you to consider in the negotiations. Or, after attending mediation, you may make tentative agreements to take to your lawyer for review; a lawyer may make suggestions that will make your agreements more in line with the legal parameters related to your dispute. You can provide those adjustments or revisions to the other side for consideration, and you may build an agreement through mediation that is both interest-based and rights-based.
You may wonder, should I hire a lawyer as my mediator? The answer is, what are you seeking? Lawyer-mediators may provide legal information or framework related to the dispute at hand, but the lawyer-mediator will not provide legal advice to either party and must stay neutral and impartial throughout the mediation process. If going through the mediation process with information and legal parameters is important to you, a lawyer-mediator and a mediation process might be what is most suitable for you.
When would mediation be unsuitable? If you are rights-focused, if you want to win and want the other person to lose, if you want to cause damage, if you want a resolution that only focuses on your own interests and does not consider the needs of the other party, then mediation is not for you. If you want to negotiate in bad faith, if you want to cause harm, if you want to deceive the other party, then mediation is unsuitable. If you would prefer to abdicate choice and if you would prefer someone else to enforce the decision related to the dispute, then mediation is not for you.
Mediation requires a mutual commitment to honest and open conversations. It requires the voluntary participation of both parties. Parties must also have the authority and knowledge to settle any and all disputes. If parties are not willing to be honest, open, enter the process voluntarily, and do not have the knowledge and authority to settle, mediation may not be the process that is suitable for the disputing parties.
You may wonder, what is the point of mediation? If I could have a conversation with the person I’m in conflict with, I would! Mediators are skilled in assisting disputing parties in communicating with one another. They help to translate the messages the disputing parties are sending one another and build consensus. They guide the disputing parties through exploring their individual and shared interests, and brainstorming options that will satisfy as many interests as possible.
Mediation is not always successful in resolving disputes, but neither are rights-based processes. If you are keen on keeping matters in your own hands and building a resolution plan that will be sustainable and unique to your and the other party’s unique needs, mediation is worth a try before embarking on a costly, with prejudice, and public rights-based process.
