Mediation comes in all shapes and sizes, mostly driven by the extent to which the parties intend to have an ongoing relationship. In cases where preservation of the parties’ relationship is not a goal, such as mediations involving insurance and corporate defendants, I see my job as helping the parties remove barriers that impede them from considering solutions that will be more favorable than further litigation. This means not only drawing on my 25+ years as a Certified Civil Trial lawyer to aggressively help them see their positions more objectively, but also dealing with the inevitable frustration that litigation engenders so that people can focus on meeting their own goals rather than on just beating up the opposition. Most important in these mediations is the mediator’s tenacity in continually overcoming objections to resolution, presenting possibilities, and most importantly, relentlessly undoing expectations and testing parties’ perceptions to engender realism about their positions and the need to obtain the other party’s agreement. Often a case will not settle during the formal time for mediation but strong follow-up in recognition of the time it takes for parties to adjust to newly learned realities can frequently seal the deal. Nevertheless, it’s important to acknowledge those few cases in which both parties may be better served by having their day in court.
In cases where the preservation of the parties’ relationship is important such as couple break-ups with children, collaborative divorces, employment litigation in which the employee may be reinstated, or in vendor-purchaser situations, it’s important to clearly identify not only the parties’ substantive differences, but also the phase of the relationship they’re in and begin to undo the barriers that keep them from rationally pursuing what they really want. It is also possible to help such parties not only resolve the current dispute, but to teach them the skills that may help them address ongoing differences. Beyond that, a mediator can help each party offer palatable alternatives that each thought might show weakness if made by that party.