Mediation is a process where a neutral third-party meets with parties in dispute (“disputants”) to act as a moderator for their settlement negotiations and attempts to satisfy as many needs and interests of all concerned as possible. The process works with or without court involvement. It is private, confidential and, since no disputant can be forced to settle, gives all disputants full control over the outcome. Mediation is faster, better and cheaper than battling it out in court.
Private & Confidential. The disputants typically meet with the mediator in a private conference room, away from public view, to discuss their dispute. Anything said or done in mediation is usually held confidential, either by agreement or by court rule if part of a litigated dispute. Although all disputants usually start out in the same room, speaking directly with one another and the mediator, they are also free to ask to talk to the mediator separately in private meetings. In those private meetings, the disputants decide what the mediator may share with other disputants and everything else is kept confidential from them.
Control. Mediation is a voluntary process. A judge may order disputants to attend a mediation session, but no judge will ever order them to settle; that decision is always retained by the disputants. It is up to the mediator to help them assure their decisions are based on a solid understanding of the facts and, if applicable, the law. The mediator does so by asking questions and helping disputants share important information with one another to aid the decision-making process.
Needs & Interests. Mediators help disputants meet as many of their needs and interests as possible. Usually, disputants present their respective positions, not their needs or interests. A simple example helps explain the difference between positions and needs.
Two sisters each want an orange for a recipe, but there is only one in the house. They argue who will get this one and who has to go buy more. Each takes the position they should have the orange. But then their mother asks, “Why do you need the orange?” “For the rind,” says one. “I need it for the juice,” says the other. Their wise mother helps them see that one orange can satisfy both of their needs. That’s the essence of mediation; helping people see and meet one another’s needs and interests.
Yes, it’s a simplistic example, but better communication can reveal needs and interests beyond the all or nothing positions initially advanced; where people get stuck. For example, in a business dispute which came to mediation, a parts supplier was suing a customer for nonpayment of an invoice. The customer was not paying due to a claimed quality issue. During opening statements, the customer apologized for not submitting a mediation summary on time, explaining they were busy working on a new part. Hearing this, the supplier asked if he could bid on the new part without the current dispute jeopardizing his chances of winning the contract. The customer assured him he would be considered along with all other bids since the quality of his work in the past had been great. The supplier stepped out of the room to speak with his attorney, came back with an offer which was immediately accepted and a settlement agreement was signed before the mid-morning snacks arrived. The simple act of communicating in the presence of both clients revealed a hidden interest (more work) which led to resolution of the dispute. (Oh yes, when the supplier returned to mediate a claim against a different customer a few months later, he told me he was the winning bidder on the new part.)
Faster. The entire process can take as little as an hour in the case of the parts supplier and rarely takes more than one day. Disputes with multiple or complex issues or multiple parties may require more than one session. But most disputes are resolved in a one-day session. Some depositions take longer.
- Agreements can go well beyond what a court can order. The case of the parts supplier is a perfect example. No judge could order the buyer to do more business with the supplier, but by talking together in the course of mediation, they came to an agreement which resulted in a benefit for both sides; an improved business relationship and resolution of the outstanding claim.
Cheaper. Using mediation to resolve disputes costs less than a tenth of the cost of litigating to a verdict, according to a recent study from Boston. By speaking directly with one another, communication is improved and, when it occurs directly between parties, eliminates the distortion sometimes introduced by third parties, resulting in cost savings and reduced expenditure of other business resources. More importantly, since over 80% of my mediations result in a settlement agreement, it cuts off all future costs and brings the dispute to an end on the spot.
So if you are ever asked, “Why mediate?” just tell them, “Because mediation is faster, better and cheaper than going to court!”