Back To Basics: Why Mediate?
Phyllis Pollack
Commercial | Civil Mediator at PGP Mediation - specializing in Employment, Personal Injury, Real Estate, Lemon Law, and Trademark disputes and Lecturer in Law at University of Southern California's Gould School of Law
Back To Basics: Why Mediate?
As part of my preparation to teach a class on mediation confidentiality
First and foremost, mediation helps to settle a dispute or litigation early on in the process before parties become entrenched in their positions.?Not only does it give the parties control over both the process and the substantive outcome
Closely associated with this is the notion that successfully mediating a matter early on in the conflict process – reaching a resolution- “…can reduce the disruption that a dispute can cause
While I have mediated thousands of disputes, I, unfortunately, have not given this aspect much thought. But, indeed, it is a very valuable aspect. While I may see the parties for only a half day or so, the dispute is something that they have lived with for months if not years. They have had to be available to help respond to discovery, for a deposition or otherwise answer questions from their attorneys or go to court. If the dispute involves neighbors (e.g.?a barking dog), it is one that the parties must live with every time they step out of their front door.?Living with such stress day in and day out is not good.?Hence the value of early mediation and resolving the matter
And then there is mediation confidentiality. While not absolutely absolute as exceptions do exist (to be discussed in another blog!), in most instances, what is said in mediation stays there. Consequently, parties can be quite candid with each other, admitting things that they would otherwise keep to themselves.?(Id. at 6-7). I have often said that a lot of disputes arise due either to miscommunication or a lack of communication.??With the promise of confidentiality, the parties can say what is really on their respective minds, how they (mis)interpreted a comment or action of the other party and thus clear up the misconceptions and??get down to “brass tacks” and resolve the matter. I am a firm believer that a matter will not settle until and unless each party knows what the other is REALLY thinking, and thus what are their needs and interests. Mediation confidentiality allows that to happen: to say what you are REALLY thinking without fear that it may come back to bite you later on.
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And then there is the value of the third person aka mediator with her impartiality.?As I have mentioned many times in these blogs, we all have implicit biases
Finally, I think one of the most important aspects of mediation is self- determination. Each party has control over both the process and the substantive outcome. If she wishes to settle, she does; if she doesn’t like the terms being offered, she can walk away. Deep down, no one likes being told what to do or what she can’t do.?Mediation allows a party to take control of her own destiny by making an informed choice about how to proceed with the dispute.
So, why mediate???It beats the alternative!
…. Just something to think about.
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High Success Rate National Mediator- Specializing in Short Notice deadlines
2 年Terrific reminded- and the possible basis of a contribution to CA Mediation Awareness Week thru the SCMA Public/Business Outreach Committee. Phyllis- let's talk! (Thanks)