Take advantage of everything that mediation has to offer.
Mediation offers advantages that you just can’t get in litigation. More important than anything else, you get to determine whether it makes sense to resolve your dispute and how to do it. That won’t happen in court. The judge or jury will decide and someone will win and someone will lose. Sometimes both sides lose – from a practical standpoint.
In mediation you have the opportunity to understand why you are in a dispute. And that knowledge can lead to creative, fulfilling resolutions where both sides actually win. The proverbial win–win result is not a myth. It really can happen with mediation.
But, to take advantage of everything that mediation has to offer, it’s critical to have the flexibility to approach mediation in the best possible way.
When you mediate with me, one of the first discussions will be about process – how the mediation will occur. That’s because one process does not best fit all mediations.
Some mediations call for splitting the parties up from the outset with the mediator literally going between the separate camps. In cases where there is no real relationship between the parties, this is relatively common. Some attorneys have never mediated a case other than entirely in caucus.
But the most promising format for some mediations is in joint session. Virtually any dispute that involves a valuable relationship – whether business or personal – should be considered for joint session.
In other circumstances, a combined joint session with strategic caucus sessions may be the best format. This can allow the parties to directly convey information that a mediator would have difficulty conveying, like the credibility or authenticity of a party to the opposing party who would need to experience that to truly accept it.
Mediation is a different animal than litigation. Where litigation focuses on the opposing camps fighting, mediation focuses on bringing the parties together to find a resolution. Sometimes it can be difficult to work together if the parties are never actually together.
Mediation offers the opportunity to explore the underpinnings of a dispute and find true resolution, not simply a settlement, as long as the parties take advantage of all that mediation has to offer.