Mediation often provides more acceptable, satisfying and long term resolution of conflicts than litigation. This may be due to the heightened personal involvement that parties experience in an effective mediation. The result reflects some “buy-in” by the parties, rather than their simply receiving a judicial order in which one side wins and one side loses. Mediation can also provide a more expedient and less expensive way to resolve conflicts.
Persuasion and communication skills are the true power and authority of the mediator, rather than statutory or judicial power. The mediator’s gavel is personal style and gravitas gained over years of practice. As a veteran of business counseling and bankruptcies for more than 26 years, an important lesson is that calm discussions of options are usually more profitable than heated exchanges in the conference room or in the courtroom.
Third party decision makers such as Judges necessarily know much less about the components of a conflict than those directly involved. The participants are not only the experts about the dispute but can also be the experts in crafting the resolution of the dispute.
Frequently, the human side of the dispute is at the center of the matter, whether or not consciously acknowledged. Ignoring the human dynamics is ineffective and triggers situations not unlike the whack-a-mole game. Mediations are not the place for psychological counseling, but addressing the human side allows for resolution to occur.
Allowing the parties to work out as much of their differences together is important with substantial caucus breaks with the mediator. In joint session tone-setting of a facilitative discussion is critically important to move the parties to focus on their mutually agreed upon interests. In those super-confidential caucuses, an experienced mediator with knowledge of the subject matter can encourage realistic evaluations from trusted advisors whose opinions are respected and valued. Often during caucuses, the mediator learns of the ‘window of settlement overlap’ allowing for the exchange of offers to refine the terms to a final agreed upon resolution.
The facilitative/evaluative approach has been the key to successfully resolving complex legal and relationship disputes.