Innovative Conflict Resolution

A few evenings ago I struck up a conversation with a gentlemen at a social function, and the obvious topic arose of our occupations. At the mention of “mediator” he said, “Oh, do you know Judge so-and-so?  When I was a property appraiser, we mediated many condemnation cases with him.  We’d each lay out our positions, and then he’d make his decision.”

I knew there was no point in engaging him further on the subject, so let it slide. But, in my mind I instantly thought, “That’s not mediation.”

Unfortunately, most people – even many attorneys – don’t have a good sense of what mediation really is, or could be, because in the world of litigation and judges, the concept of mediation is too often blurred with the old-style settlement conference, in which Judges typically do anything they can for force parties to settle a case, thereby easing the Judge’s workload and clearing his courtroom.  Judges, oddly enough, usually don’t like trials; in the language of conflict styles, they would be practicing Avoidance. They prefer empty, peaceful courtrooms.

Lawyers, as I mentioned, must learn about mediation from Judges and these types of settlement conference experiences, as this is what they typically expect.  Yesterday I was looking at the website of a litigation consulting firm that among other services, will assist in preparing strategies for trials as well as mediations.  I was surprised to find that they maintained the same concept of mediation.  Their focus was to prepare the case for presentation at a mediation, in order to convince the mediator of the strength of that particular case.

Once again, that’s not mediation.

I understand this perception, however, as this was my perception as well after participating in hundreds of mediations up and down the West Coast.   The reality is, this type of process – where the judge or mediator takes sides and forces parties to settle – short-changes the parties.  It may resolve the immediate situation – that is, close the case – but it often can leave the parties unhappy and with very sour tastes in their mouths about the whole process.  And, in situations that involve real people with real relationships, the issues behind the issues will seldom be resolved.

The job of a mediator is not to take sides or force a settlement; it is to assist the parties in problem-solving. A good mediator will understand this and look for the real problems, the interests that lie beneath the presenting issues.  A good mediator will understand that sometimes a quick resolution is not always the best option.  A good mediator will recognize that a real resolution will mean that the parties have to have the major part in the process, and must own the process as well as the resolution.

Manipulation and coercion may work to close a case, but that’s not mediation.  If you are a party to a dispute and you’re seeking assistance in getting it resolved, you deserve better.

Depending upon the situation, you have a couple of options.  One, you can seek the help of a traditional mediator, who will take a neutral role and work with the parties to facilitate communication and understanding, and assist you in finding a “win-win” resolution.  Alternatively, you can seek the help of a conflict coach, who rather than being neutral (not on anyone’s side), takes the position that he/she is on everybody’s side.  A coach will also facilitate communication and understanding, but will assist each party to be better understood, better able to communicate their thoughts, and better able to deal with the other parties.  This option is especially valuable for disputes within groups who will continue to work together, and it provides tools for dealing with future conflict situations.

Even in situations where you are court-ordered to a settlement conference or mediation, remember: not even a judge can force you to settle (of course, if a case gets to trial or arbitration, it may be out of your hands).  You have a right to seek mediation with a mediator who understands that there is often more to a dispute than the issue at hand.