One of the unique benefits of participating in a mediation is opening the door and allowing another voice to enter the room. Litigants and their counsel will readily admit that after protracted litigation and the ongoing acrimony that often escalates within a dispute, it is oftentimes very difficult for the parties involved to manage their own direct negotiations to reach a resolution of the case. After time, positions are often intractable, opinions intransigent and compromise unattainable. Mediation offers the unique opportunity to invite an un-bias participant into the situation, giving that person the chance to invite a new perspective, a new mindset and a new attitude into the discussion.
A good mediator is an impartial contributor who listens to all sides, is non-threatening in their inquiries and is unprejudiced in their reactions. A good mediator is one who not only shuttles offers between otherwise non-communicative or non-receptive parties but a person who seeks to find constructive alternatives between them to reach a resolution.
Since the lawyers involved in disputes are typically stuck to their positions, or limited due to their advocacy to narrow demands, a third-party mediator has the flexibility, without losing credibility or strength, to sometimes offer unusual suggestions to reach compromise. It is oftentimes this “out of the box” approach that can spark a pathway to new discussions or a recommendation that might ultimately lead to a solution. Whether the deliberation involves payment plans, compensation through business credits, waivers of medical liens, an agreement to manage out of date warranty repairs or a litany of other creative approaches, participating in a mediation may be the best way for the parties to allow themselves a mechanism towards open dialogue and fresh perspectives.
It is in that mind-set that parties to a mediation should welcome the involvement of an intermediary. Not as a person who will solely referee the dispute before them but as a person who is encouraged to search the parties to determine their ultimate goals that are internal to the dispute. This is one of the reasons why good mediators also need to be good listeners, because those goals are often disguised behind the bitterness and rancor that springs from litigation.
Certainly, many disputes offer cut and dried solutions. But it is in those cases where the parties fail to connect that mediation can oftentimes be the best method toward solution. Allowing the parties to consider all options, even creative ones, to control the settlement of their own dispute before a judge or jury needs to, is one of the best qualities of mediation and one of the best reasons to consider alternative dispute resolution.
For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at [email protected] or www.EpicADR.com