Until relatively recently, many attorneys would not have participated in mediations in a meaningful way. They thought it would lead to a competitive disadvantage by forcing them to put their cards on the table prematurely. Sometimes lawyers have seen mediation as interfering with their income: the more a case goes on, the more I make.
From the parties:
“What, sit in the same room with that person? That’s one of the reasons I hired a lawyer.”
“They screwed me, I don’t want to talk to them. I want to screw them back. I want to get what I deserve.”
However, times change, and as mediation has increasingly become an accepted part of the litigation/dispute resolution process, there is far less resistance. Many lawyers welcome it as a way to resolve a dispute that is quick, efficient, and leaves their clients happy. A happy client stays a client – and refers others. I have never participated in a successful mediation where a party said, “I wish I had held out, rolled the dice, and gone to trial in two years.”
So, as a mediator, how do you overcome resistance? Perhaps the #1 method is simply to listen. To the lawyer and the clients. You may not agree with what an attorney or a party has to say. But hearing and understanding what they say is critical to achieving a resolution.
All mediators are taught “active listening” skills. Think of it as how you would listen to someone on a first or second date. You want the other person to know you’re really listening and you’re storing the information for future use.
Of course in a mediation (as compared to that date) you’re not going to discuss too much about yourself, but you are going to reveal to the parties that you understand who they are and what they are looking for – that you get it. And if done right, the process often reveals to the parties:
Who they are, what they want, what their interests are, what they’re willing and not willing to do.
It can be a remarkably creative process, one that leads to solutions that weren’t contemplated when the parties first entered the room.
Next time, I’ll discuss what to do to create the comfort level that can help stimulate an open and productive mediation where both parties and/or attorneys can explore possible solutions to a conflict.
But what have you done to create the proper atmosphere? And in what kinds of cases? Employment, Divorce, Construction, Real Estate, Personal Injury?