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Why Mediate When Mediation Is A “Waste of Time”?

June 12, 2011

How many times have you heard your opposition say, “Mediation, in this case, is a total waste of time.”?   

Is there any good reason to mediate a matter when one, or all, of the attorneys involved in that mediation feel that way?  In other words, if it appears that a full resolution of your matter may not be possible, is there any reason to undergo the mediation process?

The simple answer is yes!  And, if you pay attention and simply plan ahead, you will never waste your time.

First, there is much to be gained at mediation other than only a full resolution.  The best lawyers approach every mediation with a  pre-drafted plan to obtain defined alternative goals at mediation, should their client’s ultimate goal, resolution, not be reached.   These lesser goals are unlimited and as varied as the subject matter of the particular litigation.  Such goals often include simple information gathering that can be obtained immediately and at little cost compared to formal discovery.  However, the better thinking lawyers will also use mediation for strategic matters, including testing the opposition’s response to legal and factual trial theories and all-important interim negotiations to permit their better practical use of proposals for settlement for fee and cost shifting.

Second, why do you suppose anyone thinks his/her mediation will be a waste of time? 

It could be something as simple as they are personally simply not ready for the intricacies of mediation.  Mediation, done well, takes effort and preparation.

However, it is more likely because, for whatever reason, he/she believes they will not obtain for their client, at that mediation, what they “want”.  And, frankly, they don’t even want to consider that their opposition might find value in a mediation simply because they do not.  Or, they do not want to participate in any process unless they believe  it will become a direct benefit to them.

If your only goal to any mediation is to achieve a full resolution of all issues, many mediations will be “wasted time” for you.  And, certainly, if your definition of mediation success is restricted to obtaining what you “want”, then it is foreseeable that you have a lot of “wasted time” ahead in any of your mediations.

But, isn’t one of the problems of predicting any true waste of time first simply defining what it is that all of the participants think they can obtain in mediation?  If one party gains value, must all of the parties?  If one party cannot see value, must all of the other participants lose their opportunity?  Or, does it become the duty of each participant to find value they can obtain?

That is also a reason that many Judges will order mediation even in the face of  sometimes unanimous protests by the participants that the process is a waste of time.   Similar to a seminar, it is rare that anyone participates in mediation and gains nothing from the process!

The reason?  Because there is always value in parties simply meeting fact to face and tasting the direct communication of the opposition rather than simply accepting third-hand hearsay and opinions of their representatives.   Advocates often miss the forest for the trees.  Their clients, however, can still see the forest because they often are less burdened with un-objectivity of advocacy.  More importantly, there is always a substantial number of successful mediations that arise from just those same initial protestations of mediation being a waste of time.

And always remember that at the least, wise seeds planted at mediation often germinate into resolution at a later date.  Sometimes the parties simply have different calendars.

Our present real world is full of examples of high-profile issue mediations that by-standers, if not the parties themselves,  often consider wastes of time. 

In the sports world, both sides of the present National Football League labor-management dispute complain that their repeated trips to court-ordered mediation are a waste of time.  And, yet, is there any doubt that both sides leave each session at the least richer in the knowledge of the other side’s position?  And, in world events, one country or the other is constantly in “discussions”, mediation, with another.  Can you ever recall any period in which someone wasn’t in talks with another to avoid a much larger conflict?  Knowledge of each other gained in these discussions or talks or mediations  is invaluable to working out any issue.  More importantly, in that setting, any country talking is not fighting!

Trial of an issue will always be available to litigators.  Given their choice, it is not surprising that litigators would choose the opportunity to showcase their skills.  But parties will always prefer a resolution that they voluntarily crafted.   They will always choose reason over risk, if given a fair opportunity.  And, at a much less costly method than trial.

There are many attainable goals in mediation short of a full resolution.  It simply takes the better attorney to understand this, plan for it and then capitalize upon it if resolution becomes impossible.  In fact, sometimes mediation goals obtained short of resolution, particularly when resolution may predictably not be possible, can become that much more valuable to the wise litigator and his client.

So the next time you hear your opposition state that your mediation is a “waste of time”, simply re-double your own efforts to establish attainable goals for your client at that mediation that will make it worth your time even if your opposition wants to squander their opportunity.

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4 Comments leave one →
  1. August 2, 2016 1:37 am

    I gotta bookmark this internet site it seems extremely helpful extremely helpful

  2. July 9, 2011 1:07 pm

    Although many mediators would agree that mediation is not the answer to some types of conflict, the ability for both parties to voice their opinion and to hear the other party out is therapeutic for many and I do agree that the process, even when not succeessful, can result in a seed of resolution being planted that can in due course become an agreement.

    Jean Smith
    Conflict Resolution Researcher

Trackbacks

  1. Are You Making Your Own Mediation Success “Impossible”? | Honeywell Mediation
  2. The Mediator’s Role: Achieving Mediation Value for Every Participant | Honeywell Mediation

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