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Your Mediator: These Days, Best Considered a Farmer?

October 21, 2015

The next time you mediate, if your mediation does not end in a complete resolution at that formal mediation, please consider that your mediator, these days, may be amazingly similar to every successful farmer.  They may have to wait, with you, for your final harvest, yet to come.

And, particularly, if your practice is in personal injury.

Although he/she would love to participate in your immediate and final harvest of your litigation efforts during that particular formal mediation, in increasing numbers, the mediation process, particularly an early one, is becoming more like the initial plantings of seeds for some future final settlement, than the final harvest most often visualized by claimant-participants.

Mediation as a tactic of negotiation was never a part of the original intent of mediation.  But any tool of the practice of law can and usually does flow in many directions as lawyers (and participants) try alternatives to find that new tool’s best course/usefulness.  See, “Personal Injury Mediation:  A Disturbing Trend of A New Flawed Tactic?,  March 12, 2014.

Mediation is clearly a total process.  And that process has never really been confined solely to the few hours of the “formal” mediation conference.  That is why so much is written and presented about the realities of preparation and presentation; to permit the participants to maximize their, often limited, formal mediation time.

Accordingly, the true process of mediation, still evolving, is a lot like farming. It is hard, often drudgery work. And, many times you simply cannot predict a truly final result at any particular scheduled formal session regardless of your believed efforts.  Seeds, like final resolutions, have their own timetable.

But, there can never be a total loss to any good,patient farmer/mediating participant, because, at the least, if their seeds of resolution are sown carefully and properly there usually is always a great future reward.

However, like unsuccessful farmers, if you do not at least properly plant (and then later, nurture) your seed planted at mediation, there is assuredly a predictable total  harvest loss in your future.

Therefore, even if some mediation participants are not so skilled at this wise mediation “farming”,  their wise use of good mediators can still substitute FOR the participants!  And, with equal success.

One of the basic tools of any good mediator is recognizing and raising important issues with a party or their attorney (usually both sides) without offending them. And, subtle suggestion (even simple rhetorical questioning) is always the mediator’s best scheme to assist all sides to see all of the issues, objectively. I call it “planting issue seeds”.  (Some may call it “leading from the back of the room”.)  See, “My Opinion:  Good Mediators Lead Best From the Back of the Room”,  September 30, 2014.

And, like in farming, your harvest could be coming later than you hoped.  Similar to farming, the total resolution process takes far more time than most “non-farmers” anticipate.

Already compressed by formal opening procedures preparatory to even begin negotiation, it becomes even harder to effectively negotiate in the limited time often remaining in formal mediation where time is artificially so-compressed.

Or, worse, where patience is missing.  (Always remember, both/all sides must have common goals.)

In perfect circumstances, every mediation issue should be obvious to all of the participants prior to mediation. However, like farming, surprises abound.   And, new seeds will always arise in every mediation.  (Hopefully, as the direct result of an effective mediator.)

But, most of all, like any new seed, sometimes any new position contemplated for the first time at mediation is hard to visualize without allowing the idea to fully bloom.  Accordingly, it is also foreseeable that it simply takes time for these “seeds” to grow and thus time for any party to contemplate the subtle seeds planted first by your mediator.  Or, you?  Or, your opposition?

Again, in a perfect world, like planting seedlings transferred from a hot-house to gain time over the planting of only raw seeds, if the advance preparations and presentations and even prior negotiations have gained all of the participants the resultant real head start on the growing period, many mediations can still continue to be fully fruitful.

But, if not, try joining your mediator in thinking as a farmer.  Have the patience to recognize the seeds sown at formal mediation, carefully cultivated afterwards, will always result in an optimum future harvest.

And, maybe thank your mediator (at least mentally) for the planting assistance when it does?

Dan, from Ft. Pierce, Florida.

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