Mediation is voluntary and puts the parties in control. Parties choose to participate in mediation, unlike litigation, which is anything but voluntary for the party being sued. The participants retain decision-making power, negotiate the terms of their own agreement, and have control over the outcome of their dispute. The mediator does not issue rulings or compel the participants to accept the terms of an agreement.

 

Mediation is well-suited to emotional disputes. In emotionally charged disputes, the parties want to tell their story and be heard. Mediation gives them the unique opportunity to convey their own narrative directly without having to shape that experience into a legally “understandable” story. Rather than having emotions fester, parties can resolve conflict arising from events shortly after they occur, rather than months or years later.

 

Mediation is confidential. Lawsuits are matters of public record. Mediation is private and confidential. Participants have the freedom to be candid about settlements options, to change positions without embarrassment, to share litigation strategy, and to weigh the strengths and weaknesses of their positions. Equally significantly, they can address personal concerns or fears that may not be legally relevant but critical to successful resolution of conflict.

 

Mediation can provide solutions that litigation can’t. Courts are limited in the remedies they offer. In addition to money damages, mediation gives participants the freedom to explore creative solutions to their conflict – including options as simple and powerful as an apology. Whatever will work for the parties is on the table.

 

Mediation is timely. Litigation can take years to resolve. Mediation can often be completed within a day, bringing swift resolution to sensitive situations and providing the parties with certainty and closure.

 

Mediation is cost-effective. Litigation is expensive, both in terms of legal fees and costs and potential financial exposure of the losing party. Mediation costs a fraction of what litigation costs and offers certainty with respect to legal exposure. Equally important, ongoing conflict – particularly protracted litigation – is an emotional and intellectual drain on the productivity and well-being of individuals and businesses. Mediation can prevent significant, hard-to-measure costs in human capital and time.

 

Mediation has high rates of compliance. Parties who have actively and voluntarily participated in negotiating their own agreement have been shown to be more likely to comply with its terms than if the agreement has been imposed by a third-party decision-maker.

 

Mediation can preserve ongoing personal and business relationships. Mediation encourages direct communication between parties, which can heal fractured relationships and improve communication going forward. Moreover, mutually agreeable, negotiated solutions that address the parties’ respective needs can preserve relationships that could be irredeemably damaged by the win/lose results of litigation.

 

Where mediation occurs early in the course of a dispute, these advantages only increase. Addressing conflict in the workplace before it disrupts the workings of a business or spills over into litigation can be invaluable. In highly charged, emotional disputes, parties often become entrenched in their positions. Early mediation can resolve conflict before this occurs. Where unwanted publicity or damage to reputation is a concern, mediation offers a confidential way to resolve conflict quickly and privately. Where working relationships between an employee and employer or between businesses will continue, early mediation paves the way to preserving those relationships and improving communication going forward.

Why mediation rather than direct negotiation?

Most people are familiar with direct negotiation, which can be an effective way of resolving a dispute. If you’ve purchased a car or bought a home, you’ve likely engaged in direct negotiation. Typically, direct negotiation involves positional bargaining, in which each side negotiates from a strategically high or low opening position, followed by a series of mutual concessions and trade-offs.

 

Particularly in emotionally-charged conflicts, positional bargaining can lead to impasse. Why? First, where emotion is at play, positional bargaining can easily derail because it does not address the emotions driving the dispute. In addition, because positional bargaining is inherently reactive, each side can become stuck on how much or how little they can extract from their adversary, rather than focusing on what they really need and want. The negotiating universe is often framed and circumscribed by the parties’ starting positions, and the results may have little relationship to the full range of the parties’ actual interests. Because the parties lack trust in one another, a productive and mutually beneficial option will often be rejected by one party simply because it was suggested by the other side. Opportunities for mutual gain remain unexplored. The parties may experience the process as “death by a thousand cuts.”

 

A skilled mediator fundamentally alters this zero-sum dynamic in several significant ways. First, the mediator is an unbiased third party who represents no party’s interest and has no stake in the outcome of the dispute. From this position of neutrality, the mediator can effectively assist participants with clarifying their interests (sometimes thought of as “why” they want something), rather than becoming stuck on their positions (“what” they are asking for or “what” they can get). Where emotions are a significant factor, mediation gives each participant the opportunity for their story to be heard and understood. The mediator assists the participants with framing their communication most effectively, and can highlight areas of agreement and explore possibilities for mutual gain. The mediator can also reality-test alternatives to a negotiated solution – for example, what it would look like to pursue litigation, or what the risks of litigation might be. Finally, rather than negotiating a series of concessions, a mediator can help the participants reach an agreement in which each participant’s actual interests are addressed.

 

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