What is mediation?

Mediation helps warring parties communicate, find common ground, and create better tomorrows. Mediation cannot change the past. But it can help parties move forward quickly – from anger and frustration to collaboration and hope.

Why mediate?

Mediation offers the parties an opportunity to reframe their conflict and craft custom solutions that go beyond the blunt tools, rules, and timetables of trials, verdicts, judgments, appeals, and arbitrations.

How does mediation work?

Rather than let others decide, the parties work together to design a path forward that makes sense for them. The parties can negotiate and agree on balancing risks, costs, and outcomes, without the burdens of adverse publicity, negative credit, damaged relationships, wasted time and expense, and the general distress of an unresolved dispute or a dispute determined by third-party rules.

Is mediation limited to filed matters?

No. Mediation works best early – before a dispute results in the parties filing lawsuits against each other or at the very beginning of that process. At the early stages of a dispute, the transactional and emotional costs of litigation can be avoided. Frustrations have not yet been galvanized. If more information is needed, the parties can agree on a focused process to efficiently acquire that information without unnecessary exasperation.

What are the ground rules for mediation?

There are three basic ground rules for mediation. One, it is voluntary. Although a court or a contract may require parties to attend a mediation session, once there, the parties are not required to reach an agreement. It is entirely up to the parties as to whether they want to listen, agree, or continue to talk. Two, it is confidential. Unless the parties otherwise agree, the discussions within the mediation are only for the mediation and cannot be used for or against a party in other forums. Three, the mediator is neutral. The mediator is there to help the parties brainstorm, collaborate, negotiate, and agree – not to independently decide an outcome for the parties.

Is a mediator like a judge or jury or arbitrator?

No. A judge or jury or arbitrator makes a decision for the parties within limited possibilities and according to certain rules and timetables. Usually, these third-parties can only decide liability and the amount of damages at the end of a rule-defined litigation process. Mediators neutrally assist the parties to fashion a mutual agreement that works for them. Mediators do not and cannot impose a resolution on the parties.

What can the parties do in mediation that they cannot do in litigation?

In mediation the parties can decide at the outset of a dispute to divide the risks, work out payment plans, structure settlements, require confidentiality, or trade other independent resources outside of the lawsuit to reach an acceptable solution for the future. Mediation is a voluntary agreement. The parties are completely free to be as creative as they can be. They are not limited by the rules, time constraints, time delays, costs, resource limitations, or limited remedies of a judge, jury, or arbitrator.

Is mediation an alternative to decisions by a court, jury, or arbitrator?

Yes and no. YES, it is an alternative to the millions of pages of rules and case law about disputes resolution by third parties and it is an alternative to the millions of ways humans, individually and collectively, interpret and act upon those rules. But numerically, NO. Voluntary agreements are the norm in 95% to 98% of all cases filed. A court, jury, or arbitrator decides only about 2% to 5% of cases filed.

Do I need to threaten the opposition in order to get a fair result?

This is a common question. The traditional approach is to aggressively threaten harm to an opponent. To scare them into submission. To boast about your strengths. To demean an opponent’s weakness. To outspend, outwork, and bankrupt the other side and render them incapable of responding. To bully them.

What is the common reaction to threats and bullying?

Most opposing parties and attorneys do not respond to bullying with meek submission. They usually fight back with even greater determination when they feel unjustly disrespected. Bullying usually escalates the dispute.

Doesn’t litigation, like sports, require aggression and confidence?

Aggression and confidence makes sense on a football field. It builds team unity. It shakes the arrogance of the opposition. It pleases fans. And it can give a team a psychological edge against an opponent and with fans. But sports-like aggression makes little sense if your objective is to persuade the fans or referees or the other team to agree with you.

Why is litigation not like sports?

In sports, when the game ends someone wins, loses, or ties according to one set of facts (the game) and one set of rules (rules of the game). In litigation there is usually a disagreement about the facts, the applicable rules, or both the facts and the rules. To “win” in litigation, a party must persuade the judge, jury or arbitrator to agree with their version of the facts and applicable rules or they must persuade their opponent to agree to a settlement that ends the dispute but does not necessarily decide the facts and applicable rules. Unlike sports, the goal of litigation is an agreement (with a judge, jury, arbitrator, or opponent).

Does the difference between litigation and sports require different behavior?

Yes. The aggressive and confident behavior that may work in sports – where there is one set of facts (game) and one set of rules (rules of the game) – often is not enough to persuade judges, juries, arbitrators, and opponents to agree with the aggressive and confident party’s version of the facts and law.

What kind of behavior is more effective in persuading a judge, jury, arbitrator, or opponent to agree?

Think about your everyday interactions. What kind of behavior would cause you to agree with a sales person or opponent? If you felt a sales person was telling you only the good things about a product and not telling you about any of the negatives, would you agree to buy that product? If someone aggressively pushed a product and demeaned your uncertainty and did not address your alternative choices, would you agree to buy that product? We generally do not buy unless we trust the source from whom we are buying. Aggression and confidence often builds more skepticism than trust.

How should parties prepare for mediation?

To prepare for a mediation, the parties would be best served if they thought deeply about their own and their opponent’s Best Alternative to a Negotiated Agreement (BATNA), Worst Alternative to a Negotiated Agreement (WATNA), and how their conduct and words are likely to be received by the opposition. The parties should consider, at least, the following:

• What do I want and what can I reasonably expect from the negotiations? What objective evidence justifies my wants and expectations?
• What do I think my opposition wants and what can they reasonably expect from the negotiations? What objective evidence justifies their wants and expectations?
• What are my strengths, weaknesses, and vulnerabilities in the negotiations? What objective evidence justifies my strengths, weaknesses, and vulnerabilities?
• What are my opponent’s strengths, weaknesses, and vulnerabilities in the negotiations? What objective evidence justifies my strengths, weaknesses, and vulnerabilities?
• What do I need to know? How can I get that information?
• What does my opposition need to know? How can they get that information?
• What are my best and worst alternatives to a negotiated agreement? What objective evidence supports my best and worst alternatives? What is the likelihood of my best and worst alternatives?
• What are my opponent’s best and worst alternatives to a negotiated agreement? What objective evidence supports my opponent’s best and worst alternatives? What is the likelihood of my opponent’s best and worst alternatives?
• How can I improve my BATNA and likelihood of my BATNA? How can I minimize my WATNA and likelihood of my WATNA?
• How can my opponent improve their BATNA and likelihood of their BATNA? How can my opponent minimize their WATNA and likelihood of their WATNA?
• Is there a Zone of Possible Agreement (ZOPA) between the parties?
• Are there variable risks, assets, promises, or concessions that could be included to put a deal together?
• Are there relationship issues that could enhance or detract from the negotiations?
• How can the parties best collaborate or reframe their dispute to achieve an acceptable meeting of their interests?

What is the mediator’s role?

As a neutral, the mediator’s role is to help build trust. To actively listen to both sides. To ask questions. To clarify. To uncover underlying facts, vulnerabilities, interests, objectives, and goals. To help the parties see the dispute from all sides. To explore where the parties may share common ground. To assist the parties in assessing both their strengths and weaknesses. To reframe the context of the dispute and spur discussions of objective measures and criteria for the resolutions of the conflict. To aid the parties in seeing the dispute from the eyes of opponents, employees, customers, owners, third party decision makers (like judges, juries, and arbitrators), the public, and other interested stakeholders. To stimulate discussion about processes and exchanges of information that may accelerate the trust needed to chart a mutual path forward.

Is there a set procedure for every mediation?

No. Every dispute, like every person involved, is simultaneously similar and unique. We share certain common perspectives and beliefs as citizens and members of certain groups. At the same time, we each have different life experiences that shape our biases, attitudes, and perspectives – even about matters we have in common. Building trust and finding common ground takes a different path with every stakeholder and every group.

Why should I choose you for a mediator?

As reflected in this FAQ, I understand I need to earn your trust. Each mediation is unique and requires active listening, creative brainstorming, and sincere authenticity to gain that trust from all sides and from all persons involved. Mediation is voluntary. There is no requirement that any of the parties remain or actively engage.

Why do you think you can help?

As a student leader, attorney, and mediator, I have devoted almost my entire life to helping people come together. Recently, I have been applying my mediation approach at the Edelman Children’s Court where parents – who often do not like or trust each other – are mediating their parenting time. Despite their simmering animosity toward each other, our mediation group achieves agreements in over 90% of the cases in a matter of hours. While we cannot change the years of discord that led to this mediation, we can foster a forward-looking environment by listening, treating the parties with respect, and acting in good faith. In my own experience, this approach has resulted in agreements in nearly 100% of my mediations in the Edelman Children’s Court. I want to share what I have learned and humbly believe I can help.

If I know you, can I hire you as a mediator?

Yes. Mediators are generally hired by friends who know and trust them. Since the mediator is facilitating a conversation between the parties, it makes sense to hire someone that can gain the trust of both parties. If you know me and trust me to be a straight-shooter who can gain the trust of people with opposing viewpoints, we are on the path toward a positive collaboration.