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09.02.20   |   Insights

Party Foul: Don’t be the Party Who Causes Your Mediation to Fail

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Conflicts are inevitable. A conflict occurs when two or more parties experience strong emotions resulting from a real or perceived difference in needs. A dispute is a result of conflict. When two parties have a problem that is unable to be resolved, they often turn to a dispute resolution process for help.

Mediation is an alternative to litigation, and it can be a useful tool for both business and personal disputes. The Ohio Uniform Mediation Act defines mediation as: “any process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” (ORC 2701.10) Mediation can occur before or after a lawsuit is filed, and the sessions may be held outside of a courthouse. This post is going to highlight the process of mediation and explore four ways participants should properly prepare for a mediation in order to increase their likelihood of success.

1. Understand the Role of Mediation

One way to find success through mediation is to thoroughly understand how the process fits with the other dispute resolution options. This will allow the party to have proper expectations about the mediation process.

Mediation is a substitute for the courtroom. Mediation is not a “practice trial”, or a place to present evidence in hopes of persuading the mediator to “take your side”. There are no witnesses and no jury. The goal of a mediator is never to get the parties to agree about the facts that led to the dispute; let’s be honest, that’s a nearly impossible task. Instead, the role of a mediator is simply to have a fundamental understanding of each party’s perspective in order to effectively manage the room, facilitate conversation, and help the parties discover a resolution.

So yes, you will get a chance to tell your story, and even show pictures or receipts if they’re relevant to the dispute; but the way you “win” in a mediation is resolving the conflict. No more time or money spent or anxiety about the impending, but inevitable, confrontation. If two parties reach a mediation agreement, the case is taken off the docket and the agreement replaces a judgment by the court. Understanding the role of mediation will allow for a party to have realistic expectations about the process and utilize their session most effectively.

2. Avoid Unleashing Raw Emotion

Emotions may arise during the mediation session and that is expected, but if a mediator is spending a lot of time trying to combat intense and raw emotions that may lead the mediator to determine the case is not ready for mediation. As a result, the mediator is permitted to terminate the mediation.

One of the biggest mistakes a party can make during a mediation is putting all of their energy in trying to prove a point or get the other party to “see their side.” The truth is, this gratification rarely happens and it never actively resolves the problem at hand. Healthy emotions are beneficial to the mediation process; they encourage openness and honesty between the parties, which can result in better cooperation. However, it is in the best interest of both parties to avoid comments that are driven solely by emotion as that can be extremely counterproductive and result in an unsuccessful mediation.

3. Brainstorm Creative Solutions

There is no third-party decision maker in mediation, the parties control the outcome. This leaves a lot of flexibility for the parties when creating an agreement. For this reason, it is best to come to the table with creative ideas that can be proposed and discussed, instead of missing an opportunity to collaborate while the other party is in the same room. Most creative solutions are found when each party can identify what is most important to them. For example, one party may hold value in maintaining a business relationship, while others may be seeking financial compensation only. In addition, if mediation takes place after a lawsuit is filed, there may be incentive for a party to reach a mediation agreement in order to avoid a judgment on their court record.

Creative solutions can involve providing services as repayment instead of money, developing a realistic re-payment plan, or even asking for a positive review to be posted on a business website. Mediation allows for the parties to tailor solutions – meaning success in mediation comes when each party is prepared to share ideas on how to resolve the dispute.

4. Bring Representation

It’s important to remember that a mediator cannot act simultaneously as your personal representative. All mediators are instructed to serve as a neutral third party. The most prepared parties select an attorney to help them through the dispute resolution process. An attorney can provide support, and can help the party to stay organized and focused during discussions. Don’t overlook the value in having an attorney as your teammate during a mediation session.

Managing conflict is a necessary skill; there is value in learning how to effectively participate in a mediation in order to resolve the dispute in a way that is most beneficial to all parties involved.

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