Choosing Mediation

Reasons People Choose Mediation

If you’ve ever been in a contentious conflict with your workplace, you probably asked yourself: “Should I choose mediation?” There area number of reasons that people opt for mediation as compared to regular litigation. Ultimately, it comes down to what the participants want (or what they’re contractually obligated to do).

Privacy: The process of mediation is confidential as it relates to all participants, including attorneys and the mediator. Therefore, anything that is discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other theories advanced in the mediation are confidential.  Mediation is not a matter of public record, and therefore, the participants’ privacy is secure.

Control Over the Outcome: In mediation, there is no judge sitting on high in a black nightgown will decide the fate of your dispute. There is no jury of your peers will be holding your future in their hands. You have the unique opportunity to “tell your side of the story” without lawyers objecting that what you’re saying is inadmissible for some reason. You, along with the mediator, can have the experience of “building a bridge” to your opposition, essentially crafting your own resolution for your dispute.

Preserving a Friendship: Some relationships are important to resurrect or maintain intact. Business partnerships, relationships of long standing, among others, are often stabilized and preserved as a result of the mediation process. That is nearly an impossible feat if you’re trying to accomplish that with litigation.

Personal Responsibility: In the mediation process, good mediators frequently encourage the participants to assume personal responsibility for their respective roles in the underlying conflict. This means among other things not blaming others, fate, or the gods for your part in the dispute. It means admitting your own fault for the conflict (even if only done privately with the mediator). This is an extremely important concept. Why? Because it is instrumental, perhaps the first step, in reversing the cycle of conflict.

Who Wins and Who Loses in a Mediation?

If the mediation is conducted under the watch of a competent mediator, both sides “win” and there is no “loss” on either side. That does not mean, however, that both sides walk away from the mediation necessarily happy or content with the outcome. Consider the following sayings:

  • Even a poor settlement is better than the best fight.
  • Each side needs to be at least a little bit unhappy with the result; that means that each side gave up something of value to the other.
  • Closure and certainty are everything!

In general, neither side is going to be perfectly happy with the outcome of a mediation but they tend to be much happier than if they’d gone to trial.

“A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.” — Ludwig Erhard