The role of formal mediation has expanded greatly in the last 30 years. Mediation and related processes are used extensively in the legal system in civil and family law cases. It is also used to resolve conflicts in employment between employees and between employees and the employer. Community mediation has grown to address conflict in schools, between neighbors, and between tenants and landlords. It can even be used in business outside of dispute resolution, by using facilitators who mediate between two or more businesses exploring potential future business relationships.
Minnesota Court Rules define mediation as: “A process in which a Neutral [in this case, a mediator] facilitates communication and negotiation to promote voluntary decision making by the parties to the dispute.” According to the Cambridge dictionary, a “process” is “a series of actions that you take in order to achieve a result.” I think this is a pretty good definition.
What I find most interesting about the definition is that the purpose is not defined as promoting settlement, agreement, or a deal. It is to promote voluntary decision making. From my perspective as an advocate and Rule 114 qualified neutral, this is important. Some deals are not better than the alternative. Sometimes the parties’ perspectives are just too far apart and can’t be moved. Not every potential business relationship is a good idea. The focus is on meaningful decision making.
A decision without information is not a meaningful decision. It is no different than flipping a coin. To be meaningful, there must be information. This is why good mediation is valuable. By providing information, even if it’s just information about what the other party is willing to do, mediation can achieve its purpose even if it doesn’t produce a deal. Good mediation accomplishes its goals if helps a party explore possibilities, gives a party a more accurate view of each party’s position, and helps clarify likely outcomes for a party. While these goals could be accomplished through straight negotiation, a Neutral such as a mediator provides significant advantages.
A Neutral provides these advantages in several ways. First, the Neutral can act as a go-between, shuttling between the parties without them having to talk directly to each other. This can be invaluable when one of the chief obstacles to an agreement is personal conflict between the parties or potential miscommunication. This is extremely common in most legal disputes. A neutral messenger, who can let a party vent and filter out the unhelpful information, helps a party feel heard without the other party feeling attacked. Second, a neutral provides a safe sounding board. This allows a party to explore and discuss options openly that they may not wish to discuss with the other party. This allows a party to refine, clarify, and strengthen their own position by forcing the party to consider and articulate it. Finally, a neutral can offer valuable insight into a party’s position and force them to more honestly confront weaknesses.
A Neutral can provide this insight in two ways. First, a Neutral will reality test—ask questions to make sure a party has thought through the feasibility or consequences of a proposal. Sometimes this is simply a matter of asking a party to confront if a proposal is really something a reasonable person would agree to so time is not wasted pursuing an impossible goal. Other times, this involves questioning whether the proposal is practical, effective or genuinely serves a party’s interests. Often, a party will become fixated on a proposal and lose sight of the party’s goals. Most often, reality testing involves seriously considering if a proposal a party is inclined to reject is worse than the alternative. Parties often fixate on an impossible best possible outcome and lose sight of an achievable better outcome.
Second, a Neutral can offer a useful perspective and opinions. While a pure mediator in theory might not comment on the merits of an action, in practice, parties frequently seek out Neutrals who are experienced in a relevant field who will offer opinions. Attorneys seek out mediators who will challenge all parties, including the attorney and the attorney’s client.
These neutral opinions offer several benefits. The exact same observation coming from a Neutral is more likely to be taken seriously and not dismissed as a mere negotiating position. This can be invaluable in getting a party to hear and seriously consider an adverse perspective the party would otherwise dismiss as a mere argument by an interested party. Similarly, people want to believe they are on the right side of an issue or tend to assume that others will agree with them. A neutral opinion can correct those inherent biases. Finally, a Neutral can be helpful at identifying missing, incomplete or helpful information. It is not uncommon for a party to believe something is obvious, only for a person with an outside perspective to easily identify leaps in logic or additional information that would be necessary or helpful to make an informed decision. This helps a party be better prepared in the future.
Additionally, as in other aspects of life, a second opinion is invaluable in any important decision. If an experienced Neutral and your own attorney or in-house expert agree on something, it may be worth putting more confidence or resources into supporting that position or betting on that outcome. On the other hand, if two experts disagree, that doesn’t mean one is right, and the other is wrong. Quite frequently, this just means there is more uncertainty around the issue. Very rarely is anything in life certain, but knowing more about how reliable the information is can be invaluable. Finally, even a “wrong” opinion from a Neutral is valuable, especially in litigation, where it can identify real risks. As I tell my clients, Judges, like Neutrals, are not perfect. They make mistakes, and not all mistakes can be realistically or affordably fixed.
Collectively, this means that good mediation will accomplish several things. A party will learn about the other party’s perspective, gain a better appreciation for the strengths and weaknesses of their own position, learn about risks and uncertainties, and learn to understand what their options are. This allows a party to identify and explore opportunities and options, identify the best path forward, and commit to it appropriately. This may involve reaching a deal, but it also may simply help narrow the available choices, allowing a party to better commit resources in a more profitable direction.
Thomas Witt is an attorney and Rule 114 Qualified Neutral with Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of Family Law, Employment and Civil Litigation. This article is not intended to provide legal advice. You should always consult with an attorney about your specific circumstances.
