What Happens in Mediation
As a mediator, I am hired by both parties to a dispute. I serve as a third-party neutral helping the parties resolve challenging issues. In keeping with the Through Understanding philosophy, I facilitate discussion aimed primarily toward advancing mutual recognition and secondarily toward generating viable, creative solutions to the underlying issues. In practice, what this means is that we first try to help people understand each other’s perspective. Then, when some level of understanding is restored, I help them find solutions that meet both of their needs. Throughout the mediation, I offer my clients help/training in navigating challenging communication. In the end, clients find viable, mutually beneficial solutions, see each other again as human beings, and are better prepared to manage disputes in the future.
Types of Mediation
I group mediation styles into two divergent approaches. The first is what I call “entitlement-based” mediation. In this very common form, clients seek to emulate, to the extent possible, the results of litigation. Here, legal representation for each client is normally critical because each side makes legal arguments in attempt to convince the other that they are in the legal right (or that they would prevail in court). This form of mediation, which employs, either subtly or directly, legal threat and intimidation, does not typically help the parties resolve anger and bitterness, but rather, like in court, tends to exacerbate division. Nonetheless, when successful, at the least, clients avoid the financial costs (and some of the emotional costs) of litigation.
The second type of approach I call “relationship-based” mediation. Here, rather than try to emulate what might happen in front of a judge, clients instead seek to find their own solution, one which works well for both. First, they investigate each other’s needs (goals). Once they reach an adequate level of understanding of what the other wants out of the situation, they then they work together to find strategies acceptable to both of them. This form of mediation — which uses understanding as a means toward resolution — promises both to ease the personal conflict and yield solutions that creatively serve both parties. This approach is not typically practiced by attorney-mediators because, first, as attorneys, most have an attachment to the “law,” believing it is the best way to resolve issues, and second, most are inexperienced in, and uncomfortable with, an approach which seeks to foster understanding. But it is this approach which I have found opens up limitless possibilities for clients.
In my experience, where clients will have some relationship beyond the conclusion of the legal matter, relationship-based mediation is far superior to entitlement-based mediation. Not only does it free clients to find creative solutions but it promises to ease the hostility which may have plagued their lives for too many years.