Mediation surprises a lot of people. Parties who feel like every bridge has been burned — parents who think there’s no way they’ll ever find an agreement over their child custody dispute, businesses sparring over every line in their contract — can, with a mediator’s guidance, discover common ground they couldn’t see. It may not be a lot of common ground, but sometimes it doesn’t have to be a lot to be enough.
But mediation isn’t magic. Whether the process leads to an agreement depends on many factors — some in the parties’ control, some not.
Unwillingness to Compromise
Mediation works best when both parties approach the process with a shared goal—to reach a workable solution. If a party comes into mediation with a “my way or the highway” attitude, the chances of an agreement go down. A lot. A mind open to possibilities and compromise makes an agreement much more likely.
That doesn’t mean you should come into mediation ready to compromise on everything. Knowing what is important to you, and why it is important, will often make it easier for you to listen to the other party explain what’s important to them and why. Hearing each other and focusing on what is most important to each of you frequently helps peel away the stuff that felt more important than it might actually have been. That lets you zero in on possible solutions to the underlying interests.
Complex Procedural Issues
In mediation as in life, timing can be everything.
Sometimes your dispute is intertwined with legal and procedural questions. If one or both of the parties feel a need to get those questions answered, the time may not be right for mediation. You may need to submit some of those issues to a court and wait for a ruling before getting into meaningful discussion of the underlying dispute.
But don’t assume every case with nuanced legal questions has to wait for mediation. Remember that in mediation the parties get a chance to control their outcome. Submitting part of their dispute to the court gives away a piece of that control. In some cases that will be the right approach. But sometimes, you may want the freedom to craft a creative solution that is beyond the court’s power. For example, when New York State accused a company of illegally fixing the price of eggs — a complex claim — the parties came up with a resolution the court never could have imposed: The company donated 1.2 million eggs to food banks.
Lack of Shared Vision
Sometimes a party just plain doesn’t want to compromise. They want to win. They want a court to tell them they’re right, or they want the other side to admit they’re right.
When that happens, the parties don’t share the notion that a fair resolution will require compromise on all sides. That makes mediation more challenging and an agreement less likely — but it doesn’t necessarily mean it isn’t worth trying. As we said at the beginning of the post, mediation sometimes surprises people. In mediation, in hearing a new perspective on the dispute, a party who drew a line in the sand may reconsider. Of course, they might not.
Facing any of these factors doesn’t mean you should give up on the idea of mediation (especially since it’s required in most lawsuits in Minnesota anyway). But if you see a potential impediment to an agreement before mediation, you should be sure to talk it over with your lawyer and to bring it to the mediator’s attention.
For more information about the mediation process in Minneapolis and St. Paul, call Rubric Legal LLC today at (612) 465-0074.