What Is Mediation?
Updated: Jun 29, 2021
I am eating cookies with my children. Two boys. They are nine and six. As we often do after dinner, we discuss school, music, politics and anything that pops into their heads at the moment. On any given night the topics range from animé and Fortnite strategy to physics. It’s like the game show Jeopardy, except that in my house, people talk over each other, stand on furniture and are prone to dancing in the middle of a question or answer.
Say What Matters, Listen and Move Forward
My older son asks if I am a lawyer. He knows this already but I see he wants to talk. I gather that in school earlier, they discussed someone who was a lawyer—Lincoln, probably. I say yes and ask both of them if they know what a lawyer is. My older one says it’s someone who goes to court and argues. More or less, I say. My younger son, mouth full, says that I am a mediator, too. I say yes and I ask if they know what that is. Not really, they say.
To both of them, I ask - "What do you think a mediator does?"
"Helps people"
"How?"
"You settle fights."
"How?"
"By talking to people."
"That’s mostly right."
"What did we miss?" my older child asks.
"A lot of my job is listening."
"For what?"
"For what matters most to people; for what brought them to me in the first place."
"Why?"
"Because if people who disagree can say what matters to each other and hear it, maybe they can move past it."
How Mediation Works
Mediation is a process in which people discuss a conflict, generate options to address it, and hopefully resolve it. The mediator facilitates the process by helping parties to develop an agenda; framing and reframing issues; helping parties to generate options, ideas and possible resolutions.
Sometimes it’s about money. Sometimes, it’s helping people to understand what options there are to resolve a conflict besides money.
Mediation is commonly referred to as an "alternative dispute resolution" process. What is it an alternative to? Court. Litigation. The stuff you see on television or in movies—when we had those things. Our courts are where disputes are most often settled.
If you have ever been a party to litigation, you know that courts can be a challenging place. The rules are complicated. The judge or a jury, people you have never met, make all of the decisions. It often takes time, lots of time. If you have a lawyer, legal fees and costs pile up quickly. Because of time, cost and the risk inherent in the decision-making process (trial), most cases settle before they are ever fully heard. If I were to ask my kids what the law is, it would be some vague notion of this process that they would discuss.
Mediation vs. Court
There are many important differences between mediation and what generally happens in court.
First, mediation is a self-determined process. This means that parties to a mediation make all of the decisions as to what steps to take to resolve a case and of course, the ultimate resolution.
Second, mediation is confidential. Unlike in court, in mediation, what happens there stays there. Once something is said in mediation, the other side cannot not hear it. However, they cannot act on it. This means, practically, that mediation is a place where one can have a candid discussion. It can be honest - brutally honest. That candid discussion, with the other side or alone with the mediator, is a place where solutions begin to take shape.
Third, mediation can be much faster than court. Generally the only people involved are the parties, their counsel and the mediator. It can take place in one day or on more than one day - as schedules allow and if needed.
When To Use Mediation
Since mediation is a voluntary and self-determined process it leads to an obvious question—when do you try it? There is no simple answer on this but generally, mediation is often best tried earlier in a dispute rather than later. The reason for this is that once parties have really gotten into the weeds, let's say by becoming embroiled in litigation for months or years, they have spent too much time and energy to feel like giving mediation a try. This is a mistake but it is an understandable one. Mediation that takes place earlier in the trajectory of a conflict can fundamentally alter its course.
These are the best times to use mediation. Try mediation any time you have a conflict and you’d like to have a discussion with the other side(s) with someone who is specially trained in facilitating really hard conversations. Try mediation when you want to try and resolve a dispute amicably, although not necessarily easily. Try mediation when you want to settle a dispute privately. Try mediation when you want to settle a dispute without incurring tremendous cost. Try mediation when you want to have the dispute resolved quickly. Try mediation when you want a dispute resolved with your input. Try mediation when you have tried everything else, including litigation, and gotten nowhere.
What Does Mediation Look Like?
There are often preliminaries to a mediation. These include private phone calls between all side(s) and the mediator, exchanging of key information and signing confidentiality agreements. Once that is done and it usually doesn’t take long, there is a room.
In the room, there is a table. There are chairs at the table. Everyone sits down and the mediator, after reminding everyone of the ground rules, generally says something along the lines of, “who wants to go first?” Because I am a big fan of her podcast, I often use Esther Perrell’s "Where shall we begin?” The parties and counsel talk. The story of the conflict is told. The story is told from two different perspectives. This is called the joint session. Sometimes it lasts ten minutes and sometimes it lasts ten hours. Joint sessions vary widely but often they can be an opportunity, maybe the first for some conflicts, for people to speak openly about how they see the problem. Joint session is the norm in some kinds of mediation such as family law disputes. It is common, at least for me, in such cases to hear one side say X and the other side say, “I never knew that.” The energy can change in a heartbeat. So can the conflict.
At some point, it may make sense to break out into separate groups. This is called caucus. The mediator goes back and forth to discuss with each side, their positions and more importantly, the interests that underlie them. Confidentiality exists in the caucus rooms. The mediator confirms with each side what it may bring back to the other. This process, over a period of hours, often results in offers and counter offers moving closer together.
If everyone has prepared, if the mediator has helped facilitate, if everyone has listened and thought and considered then often, resolution is reached. It takes time, but it happens.
What Do You Look For In A Mediator?
First you want someone who can truly listen. Listening is the elixir carried by every hero upon returning from a journey. It is the sword that pierces the veil of every well-crafted argument. It is the shield to the reactivity and defensiveness that comes from a side who knows they must entertain a settlement to move forward with their lives. Listening is the critical, first skill of every mediator.
Second, you want a mediator who is curious about your dispute and how you got there. When we listen to other people tell us why we are wrong and they are right, we shut down. In a mediator, you want someone who is genuinely curious as to the arguments, positions and interests of all sides. The mediator should not be judging, but rather should be listening and when they hear something which strikes anyone as insane and improbable, the mediator should be asking about it. Curiosity is critical because by giving expression to it the mediator provides participants with what they bargained for in mediation—that the process is fundamentally about them. Keep the focus on them and talk through challenging questions and ideas.
Third, you want a mediator who demonstrates positivity. This is a wildly unappreciated trait that every mediator should have. Every mediation starts with the parties far apart. Every mediation begins with each side taking an approach that the other characterizes as “coming from another planet.” No case has any possibility of settling until the moment that it does. Mediators are positive, and rightly so, about how much better people will feel when the matter settles. Mediators are positive about how much money might be saved by settling today as opposed to two years from now. Mediators are positive about the enormous strength demonstrated by all sides when they can acknowledge that the settlement on the table is nowhere near where anyone started or even maybe what they hoped for, but somehow, they got there anyway.