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February 2014

Mediation is not about the argument.

In this type of dispute resolution process, it is not about one party proving that his or her issues are more legitimate when compared to those of the other party. I have said this before, and been jumped on by other practitioners as well as those with an interest in the subject on Linked In and other websites. When parties agree to mediation, it is, for them, all about the argument, and who is right and who is wrong. The goal of a good mediator is to get the parties to step back and look at the issues differently.

As Richard Shore of Gilbert LLP, wrote recently in his article Four Tricks That Make Mediation Work….”the goal of mediation is not to win an argument; it is to achieve a favorable settlement….” On this issue I agree with Mr. Shore up to a point.  Where we differ is that I see the outcome as a resolution of the dispute that produces an agreement the parties willingly accept. His use of the term “favorable settlement” may be nothing more than the fact that he sees mediation through the lenses of his legal training, but it underscores what I see as a significant issue that skews peoples’ perception of mediation. This is especially true in the broader business community. Much of what people know of mediation is anecdotal and inaccurate. The reason is the most visible examples of this form of Alternative Dispute Resolution come from court ordered mediations in such areas as divorce or in litigation where substantial time and money has already been consumed.

This perception that mediation is primarily a tool used in the legal environment is difficult to overcome because companies that are in dispute with another company or with an individual are accustomed to seeing disputes of this nature as being resolved through direct negotiation, or litigation. In recent years, many companies have adopted dispute resolution clauses that introduce mandatory arbitration, which is essentially a mini-trial, and which perpetuates the perception that ADR is an adjunct of the legal system.

A second hurdle that needs to be overcome is the perception that companies have concerning the value of mediation.  Department heads, division managers, and vice-presidents have superiors that they answer to, and companies have boards and shareholders they answer to, and the benefits of mediation are difficult to quantify. By this time significant time and money has been invested in negotiating a dispute that results in an impasse. Stepping back from positions that have been strenuously defended, and turning the process over to a third party is often seen as riskier than simply letting the lawyer’s handle it.

The point I frequently make to skeptics is not the dollars saved or the time saved. While important, it is not where the rubber meets the road so to speak. I remind them that their goal is to mitigate the harm to the work, and save the relationship. Unless the company’s management has let it go for far too long, the goal is to continue the business relationship. Time and cost are always an integral part of the calculus, but negotiations that focus almost exclusively on the mathematics that underlie many disputes, will often repair the work, but fail to repair the relationship. Mediation is one of the best ways of allowing parties in dispute to craft solutions that meet their respective needs such that they can continue to work together in the present and in the future.