Perhaps the most common misunderstanding about mediation is that it is only a part of the litigation process. In fact, many attorneys see it as a necessary nuisance that is commonly court ordered by a judge in a lawsuit before that judge will schedule a trial. This perspective becomes quite apparent in the mediation session when the attorney seems more intent on issuing ultimatums and threatening to just end the session than on getting at the issues and possible resolutions.
However, mediation is not litigation. Litigation is the formalized process of putting claims for various sorts of relief, usually monetary, before the branch of government authorized to decide who gets what in a dispute. Litigation at its very essence of the adversarial approach of each party trying to power up and win over the other party or parties. They do not use illegal forms of powering up, such as physical violence. Rather, they leverage language in advancing certain facts in a certain way to fit an interpretation of the rules of court or statutory and case law to prevail over their opponent. Mediation is not that.
Litigating is powering up to conquer. By definition there is a winner and a loser on each issue.
Mediation seeks to bring potentially opposing parties together on a relatively even field where they become willing to power down enough to find interests that are either in common or at least not directly adverse. There are few conflicts where the underlying interests of the parties involved are so squarely opposed that there is no convergence; few situations where the line is starkly black versus white. In litigation, people take positions and defend them vehemently. Positions usually are directly opposed. But, in mediation positions are the starting point to find out what the actual interests are that underlie them. Positions may be opposed, but usually interests align at least enough where agreements can be reached.
Mediation is powering down to resolve conflict. By definition, there are either two winners on each issue or the conflict simply continues; there is no losing when mediation is entered into.
Now, one practical implication of realizing that mediation is not litigation is to recognize that mediation can happen well before litigation is initiated or in lieu of ever considering litigation. And, mediation is not resigned to merely address conflicts where some legal issue is at stake; mediation is for any relationship of any nature or magnitude where an impasse has been reach.
A second implication arising from the realization hat mediation is not litigation is one’s effective approach to mediation. Lawyers (and I can say this since I am one) seem to measure their value to their client in terms of how big a win that can achieve for them. This seems true even when it does not change the level of compensation they will receive. It is rooted in their training as well as other sources which I will not speculate upon. In doing this, though, they often lose sight of what their client truly desires.
There is an adage in the legal field that goes, “When a client says, ‘It isn’t about the money’, well, it is ALWAYS about the money.” I used to believe that as many lawyers I know continue to believe it. However, often, people truly do seek something higher than money and they settle for money because that is all the legal system can really give them. Often, they just want to be heard and for some sort of restoration of relationship. Mediation is that.