“We just can’t agree. Mediation would be pointless.”
“We should be able to work this out on our own. We don’t need to mediate.”
These are pretty common statements that parties involved in a dispute make about mediation. Many disputes arise between sophisticated, intelligent people who are completely capable of negotiating directly with one another. The parties know more about the facts and circumstances of their dispute than a mediator does. They may be represented by attorneys who know more about the legal issues than a mediator would. Why can’t parties simply resolve matters on their own? What advantage does mediation have over direct negotiation?
In some cases, settlement agreements are fairly complicated. When a married couple with couple decide to divorce, state law requires that settlement agreements incorporate a number of required forms and address specific terms. A couple divorcing amicably might be able to complete a settlement agreement by carefully studying model forms and self-help materials, but a skilled mediator can help guide them though forms and help them address necessary terms and stay focused.
In other cases, the key terms of settlement agreements are not very complicated: it may simple be a matter of a dollar amount. Identifying the value of mediation in civil cases that are primarily about finding a dollar figure that will settle a lawsuit may require some discussion of psychology, the dynamics of litigation and mediation theory.
I hope that mediator, attorneys and individuals who have participated in mediation sessions will share some of their insights on this topic. Why does mediation often work when direct negotiations fail?
Filed under: Uncategorized | Tagged: mediation, negotiation
Congratulations on your new site! Chris Annunziata was kind enough to send his readers over, and you are off to a great start.
What advantages does mediation have over direct negotiation? There are probably a dozen, but two come immediately to mind. First, in some cases mediation allows parties to be in the same location but in different rooms for difficult parts of the negotiation; this allows each party to pause before reacting, and allows them to compose their thoughts before their positions are communicated to the other side. Second, mediators help resolve disputes for a living and use their experience and training to facilitate the process; very often the mediator will help each side craft the message that is conveyed to the other side, the mediator will help each side see weaknesses and strengths of various positions that can foster more realistic settlement positions, and the mediator will help manage the process as he or she feels can get the case settled.
There are plenty more, and I look forward to seeing what other readers think.
Congrats again on the new site–
JD
“How about let’s give it a try.” I say to doubting parites. “We won’t know until we have talked together. And our time together will give both parties a change to talk ‘out loud’ about your point of view on this matter and will help you later if have to expain it before the judge. Besides, it have been my 18 years of mediation experience that often, actually most of the time, that mediation does help both parties move closer to an agreement. Also, if we settle it now, you will be saving yourselves a lot of money and heartache. So, would you be willing to try? If it doensn’t work, then you have lost nothing and gained a positive experience.”
It has been my experience that even when parties feel they can come to an agreement themselves, there is always the possibility that the process, which a mediator oversees, gets off track. Individuals always want what is in their best interest. A mediator can put the process back on track and show how a situation can affect both parties individually and help to come to an acceptable agreement that benefits all.
I have thought more about this post since I commented originally, and decided to expand on my thoughts in a post on Settlement Perspectives at http://www.settlementperspectives.com/2008/11/why-mediate-at-all-cant-we-just-work-it-out/ that links back here.
Thanks again–
John DeGroote
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