Published on 20 Jan 2012 under category: cubism
Article written by Cubism Law commercial mediation consultant, Roger Levitt.
Having the right mindset is critical for success. Without this, even the most expert mediator will have trouble moving the parties together.
To start with, I invite the participants to focus on possible solutions well before the mediation meeting. It is important to remember that in a mediated solution, the participants each achieve some amount of satisfaction, and if it works well, equal dissatisfaction. This is different from going through with litigation. When you go to trial, you risk all or nothing. For an unsuccessful claimant, this can mean years of effort and stress producing nothing. For a defendant, this could mean a sympathetic judge awarding more to the claimant than you ever thought possible. With mediation, the participants have the benefit of crafting an agreement that mitigates the risks associated with a litigated outcome.
It is essential to manage your expectations by understanding that you will NOT get everything you were seeking. Mediation involves negotiation and compromise. In order to receive, you must be willing to give. If you are not willing to move, you cannot expect other participants to do so. Disputes are unlikely to move into litigation or alternative dispute resolution if all of the evidence clearly weighs in on one side. Generally, both sides have valid points and some amount of evidence to back up their claims. Make sure you give credit to the evidence the other side presents, even if you have a different point of view.
Be realistic. This is probably the toughest part of having the right mindset. For an injured claimant, no amount of money can fully compensate them; for a defendant, funds may be limited or fault denied such that they feel a single pound is too much to pay. The reality is that regardless of damages, pain and suffering, an independent third party will never feel that pain. For a defendant, even if you win at trial, you will not recover all of your fees from the losing party. Mediation helps reduce costs and risk for all participants.
In summary, having the right mindset for a successful mediation means being prepared to compromise, be creative and accept less than you hoped for: Understanding that for every pound you give up at mediation, you are gaining time, emotional well-being and money otherwise spent in legal fees. Most often, parties leave my mediations pleased and relieved that settlement has been reached and that the conflict is over. The power and relief that comes with settlement should never be undervalued.
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