Mediation Tip: It's a new year, time for new beginnings

January 6, 2016

It's a new year, time for new beginnings, "do-overs", self-improvement, and deep reflections. That is also how I see each day of mediation. People come to mediation because they are in a dispute of some sort. It may be a pending lawsuit, or it could be a disagreement that people wish to resolve privately before litigation. Whatever it is and however they get there, there is one thing everyone is seeking: Closure, peace, and the ability to move forward. Yet, this somehow gets relegated to the wayside, as people's emotions, pride, ego, anger, and other feelings take over and control the proceedings.


Here is what I recommend for people coming to mediation:


(1) First, write down what the dispute is. Was a promise broken or a contract breached? Did someone cause you or a loved one injury? Did an employer wrongfully terminate your employment, or harass or discriminate against you? Did a contractor or vendor perform shabby work?


(2) Second, List the facts that help you, and those that do not, or favor the other side's position.


(3) Third, write down what you want. Think broadly; of course in legal matters, people want money. But there is usually more, for example, in a mediation some months ago, halfway through the day, the plaintiff said the other side had "never apologized". I went to the other side and mentioned plaintiff's comment. He said he did feel badly for this person, and we worked out a meeting with just the two parties, and myself overseeing the meeting. It started awkwardly, feelings were shared, an apology was given, they talked some more and then hugged. The air was lighter- We resumed mediation and the case resolved. In another case involving a terminated long-term employee who felt unappreciated for all the years of service he gave, his manager agreed to write a letter listing the employee's contributions and accomplishments. They also shook hands afterward, so that it felt "real" rather than "negotiated". So, think about the intangibles, the non-monetary things that you want, however irrational they may sound.


(4) Fourth, Think about how this dispute or case makes you feel. Do you stress over it? Do you clench your teeth going to sleep at night? Do you ruminate about what the other side did? Do you feel angry? Do you worry about the cost or time of litigation? Do you worry about the outcome if this goes to court or arbitration? Is it impacting any of your relationships? Is it impeding your exercise and resolve to eat healthier? Have you put on weight from all the stress? Does it impact your sleep? In fact, is it on your mind AT ALL?

 

(5) Fifth, picture life after this dispute is gone and out of your life. How do you feel? What doors do you see opening? What are you now free to do that has been put on hold? Do you see yourself free to do/be/have things that are otherwise out of your grasp now? What are your goals for the rest of your life? Have you been meaning to go to school, or finish your education, get a degree? Stop smoking? If you have been unemployed, do you see yourself being able to put real energy into your job search? Have you been thinking of changing careers? Making a move? Finally writing that book? Finding love? Do you see yourself perhaps starting to put those goals into place after this dispute is over? Can you see yourself sleeping better? eating better? making better health choices? Having more time and energy for your loved ones? For yourself?


(6) Sixth and finally, focus on the monetary part, what is it you NEED to feel sufficiently vindicated or taken care of, while still demonstrating compromise?
Now...you are ready to go into mediation, well prepared, with clear visions for what you want to achieve, what is or is not important for you, your life, your family....and you can more cogently and persuasively strive to achieve those goals. HAPPY NEW YEAR!

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