Mediation is an important part of modern life. It is used extensively in the legal system. It is also used to resolve conflicts in employment, at school, between neighbors, in housing or in any relationship. It can also be used in business where the parties seek out neutral mediators to facilitate a potentially mutually beneficial deal.
Minnesota Court Rules define mediation as: “A process in which a Neutral [such as a mediator] facilitates communication and negotiation to promote voluntary decision making by the parties to the dispute.” A “process” is “any 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 of the process 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 and can achieve its purpose even if it doesn’t produce a deal. Instead, good mediation accomplishes its goals if it promotes voluntary decision making by helping a party explore possibilities, giving all parties a more accurate view of each other’s positions, and providing information on likely outcomes. It aids this process by introducing a Neutral.
A Neutral offers several advantages over an unmediated process. 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. 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 and helps a party refine, clarify and strengthen their own position. 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, the Neutral can reality test – ask questions to make sure a party has thought through the feasibility or consequences of a proposal. Second, while some would argue this is not true mediation, a Neutral can offer a useful perspective and opinions. In practice, parties frequently seek out Neutrals who are experienced in a relevant field who can and will offer opinions. Attorneys seek out mediators who will challenge not only the other party, but also the attorney and the attorney’s client.
These opinions offer numerous benefits. A Neutral can provide an honest opinion on the merits of a position, without the opinion being viewed as a mere negotiating position. This can be invaluable in getting the other side to hear a perspective without it being affected by bias against the messenger. A Neutral can also force a party to confront the weaknesses in the party’s own position and help identify strengths.
Finally, even a wrong opinion from a Neutral is valuable, because it can alert a party to pitfalls of putting the decision in someone else’s hands. Judges, like neutrals, are not perfect.
Collectively, this means that during any good mediation both parties will accomplish three things. A party will learn about the other party’s perspective, get a better appreciation for the strengths and weaknesses of their own position, and learn to understand what a workable deal would look like. It allows them to explore an opportunity without necessarily committing to it. With that information, a party can then make an intelligent, informed decision that serves the parties’ long-term goals, which may or may not involve reaching a deal.
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.
