With the New Year always comes thoughts and discussion of New Year’s Resolutions. We take that turning of the new year as an opportunity to turn over a new leaf – eat better, get more exercise, spend more time with our families, get a handle on our finances, and perhaps keep our lives (or parts of them) less cluttered. For most New Year’s Resolutions, it’s simply a matter of identifying the task, setting a goal, and changing our habits. We keep the end goal in mind and in our focus, and that allows us to accomplish whatever it is that we set out to do. The same cannot be said for successful mediations.
While having a goal or a plan is important for a successful negotiation, a mediator must be mindful of the process, not the end goal. A mediation is more likely to be successful if the mediator understands, enables, and protects the process. After all, if it was simply about exchanging overlapping goals, mediation wouldn’t be necessary. The reality is that rarely do each side’s goals overlap. There is a gap between them. And that is where negotiation enabled by mediation can be so valuable.
Mediation is and should be a process. It involves exchanging information, being heard, identifying interests, building rapport and trust, evaluations, and re-evaluations, recognizing risks, appreciating opportunities, brainstorming, and resolution. It takes a certain amount of time but doesn’t mean that it must be prolonged. A mediator should facilitate and participate in this process. Unfortunately, many parties don’t appreciate the value of the process and simply focus on the end goal. What is worse is that there are many mediators who do not appreciate it either. They decide where the case should settle and work it to that point. That is not, of course, what mediation is about nor is it what a mediator should do.
A rather successful football coach frequently speaks of the process. He teaches the coaches, staff, and players to focus on their jobs, their tasks, their assignments, the basic elements of what they are expected to do. He emphasizes focusing on the process – those necessary details – rather than the team’s bigger goals, such as winning a game, a season, or a national championship. The same is true of successful mediations.
Allowing the process to proceed requires patience. For mediators, it means setting aside our judgments, our opinions, and our valuations to let the parties negotiate their resolution. While most cases settle near where I believed they would, I am surprised sometimes at resolutions that I would not have thought of or never agreed to. But I realize that it isn’t my case. I cannot substitute my judgment, my risk aversion, or my willingness to take chances for those of an attorney or party, especially when I am not in their shoes. Regardless of how much I learn at the mediation, I do not know the client nor the case as well as the lawyers. While I am happy to share my opinion and evaluations when asked, I am careful not to let it get in the way of allowing the process to work.
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