Mediation is the conversation you have to find your solution.

Somehow, we have come to believe that disagreements must be settled in court. That the battle will be fierce, but fair. And in the end the truth will emerge, justice will be rendered and we will be triumphant.

Unfortunately, that it is not always the case.

In California, there were 6.8 million cases filings in fiscal year 2014-2015.

Of the cases that made it to trial, at least two attorneys vigorously argued opposing views. Witnesses and paid experts gave conflicting testimony. A judge or jury did their best to render a fair judgement. And at least half of the parties were disappointed.

This is the way it works. Standard operating procedure. 

Fortunately, you don't have to follow this path.

How does mediation work?

Mediation is the structured conversation where everybody has the opportunity to tell their story while the other person listens.  

Listening may be the hardest part.

Many believe that listening is something that just happens while they aren't talking.  Nothing could be further from the truth. Listening is a conscious decision, that is difficult and exhausting.

So, if while the other person speaks and you are thinking about your response or wondering if they are even capable of telling the truth. Well then, you are thinking, which is important but it is not what should be happening in this moment. This moment is about listening.

You will know that you have been listening when you have learned something new or have gained an insight into the speaker’s feelings or point of view. This is very important because it is from these discoveries, that we will develop a list of interests. 

Interests are not the same as positions. An interest is the answer to the question “why?” Positions are often the answer to “what?”

We see the world thru our positions. Everything that we want and the strategies to get it.

To illustrate, there is the story of two neighbors who argued over an orange. Exhausted by the battle, they reluctantly agreed to split the orange in half. A Passerby asked why they were so unhappy. The first neighbor, Jill, said she needed all of the juice for a drink. The second neighbor, Jack, said he needed all of the peel for jam.  The Passerby said, how about instead of splitting the orange in half, Jill could take all of the juice and Jack could take all of the peel and everyone could have everything that they want. Smiles all around. This is negotiating from interests.

So, after we have created a list of interests, we will move to the next step, the agreement.

The agreement is often developed with the parties in separate rooms and the mediator shuttling between.  This is because, what is said in these rooms is confidential. There are some exceptions, but for the most part, what is said in the room stays in the room. Privacy provides the opportunity to think out loud and consider the relative value of each interest. From here, we will trade what is less important to them for what is more important to you. 

In this process the mediator is not an advocate for either party nor are they a passive neutral. Rather, they are advocating for an agreement that both sides find acceptable.

And from this give and take, a workable, durable agreement is created.  

Your dispute might be complex and the parties deeply entrenched. So it would be reasonable to believe that mediation couldn’t work. However, "will it work," isn’t the question. But rather, will litigation dispense a better solution?  And after you tally the money spent, the time wasted, and the opportunities lost, you will find that mediation is the better option. 

Contact Intrepid Dispute Resolution.