Mediation

In my decades of being an attorney, I have met many, many people who wish they had not gone to trial, either because the outcome was not what they wished, or because it was so expensive. But I have rarely, if ever, met anyone who wishes they had not settled.

The role of a good mediator is, first, to accurately understand the case from all sides, and then, secondly, to help each party see their side, and the other side, from an objective standpoint, so that they can realistically evaluate the strengths and weaknesses of each side, and the possible range of outcomes, and the likely expense of going to trial. The hope is that this sort of analysis of the case can yield a “ZOPA” or Zone of Possible Agreement.

When I serve as mediator for a case, I try to approach it as a learning experience. It really is fun! It is almost like a detective’s work, or a scientist’s explorations. In my experience, when people are litigating, it is usually due to a failure of communication, or an unwillingness to acknowledge the truth. Throughout the day, as we peel back the layers and get to the heart of the conflict, it feels like a voyage of discovery. Sometimes, even when the conflict is presented squarely, and reasonable alternative settlement options discussed, the parties just can’t agree. But, usually they can. And the process of mediation can assist greatly.

The mediation process also provides a forum whereby the parties can be heard, and can feel that they have had their “day in court” so to speak.  Often, the mere process of telling their story can have a calming effect and can help the parties let go of the grievance to some extent, and settle.