Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe.  It’s about resolving disputes.  Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution for your clients.

 

In some cases, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute.  Plaintiffs are the aggrieved and defendants, because they often believe they are involved in the dispute needlessly, feel abused by the plaintiff and the dispute process, particularly when facing the burdens of litigation.

 

Your clients may wish to avoid confrontation at the outset but may find, as the process continues, that they want to express themselves to other parties.  Make sure your mediator is willing to allow this flexibility and is comfortable handling confrontation.  In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, your mediator will guide your clients safely through confrontation of the conflict to resolution.

–Laurel Kaufer

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