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  • Writer's pictureChuck Malone

What does it mean to be mediation?

This is the time of year when we focus on those things for which we are thankful. While this year has presented many challenges, we all have much for which we should be thankful. To be thankful for something means that we appreciate it, we value whatever it is that we receive, whether its deserved or not, whether it’s fair or not, whether it’s all we could have received or not. That is what it means to be thankful. And the same holds true for a negotiated settlement obtained through mediation. There are many things that must be appreciated if a mediation is to be successful.

The parties must appreciate the roles of the mediator.

In most cases, someone is paying for the mediator’s services. If not, extra appreciation is warranted! Regardless, the parties must appreciate the various roles that a mediator can and should play during the mediation. The mediator acts as a facilitator by helping to facilitate the negotiations. A mediator does this with active listening, by brainstorming potential resolutions, by helping the parties to identify their goals and interests, and by assisting the parties in effectively communicating those interests to the other side or other parties. A mediator also wears the evaluative hat. Here is a third party who has learned a little about your case or dispute who can give you unbiased feedback. Take advantage of him!

The mediator must appreciate the wants, desires, needs, and interests of the parties.

After all, it is the parties dispute, it is their case, and thus it must be their settlement. Regardless of how the mediator or someone else may value the case or dispute, the mediator must be tuned in with the party’s evaluation, needs, desires, interests, etc. Everyone has different risks tolerances. And there may be other factors which affect a party’s interests and thus their evaluation of a potential settlement. As a mediator, I try to ferret out those interests so that I understand what it is that a party actually wants to accomplish. Mediations give us the opportunity to be creative with a settlement. But, that requires actually listening and then appreciating a party’s perspective.

The parties must also appreciate the other side’s perspective.

You don’t have to agree with it or find it reasonable, but you must appreciate it. This is very hard for some people to do. But once they are able to see another perspective on a potential resolution, the creative wheels begin to turn and a compromise settlement acceptable to all is possible.

The parties must also appreciate the risks that they are taking if they do not resolve their dispute by agreement.

Are they willing to take the risk? What could happen? What’s their worst case scenario? What’s their best?

When parties make informed decisions about a compromise settlement and are able to reach a voluntary agreement to settle in mediation, the gratitude and relief that they feel is palatable.

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