The First Rule of Mediation: Know What You Want!

Filed under: Business Law

In many legal disputes, mediation can be helpful to both parties involved in the conflict. By avoiding court proceedings, both plaintiff and defendant can often avoid higher attorney’s fees, save significant amounts of time, and avoid putting themselves through additional stress. Mediation is particularly helpful because it allows each party involved in a conflict to come to a resolution of their choosing, rather than being at the mercy of the court. In most real estate transactions, mediation is also mandatory under the purchase agreement – if you skip that step you risk losing the very significant right to recover your attorney’s fees if you prevail in subsequent litigation or arbitration.

However, there is one major obstacle that can prevent mediation from succeeding: One or both parties don’t know what they actually want!

You would be surprised at how often one side in a conflict makes a very reasonable offer, and yet the other side refuses to accept it. On top of that, when asked by the mediator if they would like to counter the offer, they cannot come up with a clear and reasonable counter offer! At this stage of the game, we sometimes hear statements such as, “I want them to make it right” or “I just want this to go away.” That’s often a big clue that we have a long road ahead of us, and we end up spending a lot more time in mediation than was really necessary. This type of thinking is counter-intuitive to the entire mediation process, since the point was to save time and money.

There is a simple way to speed up the mediation process and get to the heart of the matter so that it can be resolved: Each side must come into mediation knowing what they actually want to achieve. Statements such as “make it right” or “make it go away” are fueled by emotion, which is understandable when someone feels wronged. However, the mediation will proceed much more smoothly if each party comes to the bargaining table with some idea of a logical, practical solution to the dispute. It may be a number (such as an amount of money), it may be an amount of time (to close a business deal), or it may be some other way to remedy the situation.  For the complainant especially, not only is a clear goal critical, but so is support for that goal.  It is the plaintiff’s demand “give me $100,000” without back-up bids or detailed reports that lets respondents/defendants know that the demand is fanciful.  It hinders settlement.

If you’re considering mediation as way to resolve a current conflict, remember this rule: start out with a clear, logical plan of action. Discuss this plan with your attorney, and try to keep emotions at bay as much as possible. Once you know exactly what you want, enter into mediation with an open mind. Your plan may need to change somewhat, depending upon circumstances, the abilities of the opposing party and the underlying facts. Yet, having a clear idea of what you want will serve as a road map to guide you through the rest of the mediation process.

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