When, despite good faith efforts to directly resolve their differences, two (or more) parties remain engaged in a dispute but still wish to try to reach a settlement before incurring the costs (in time, money, man power and angst) of litigation, mediation is the most viable alternative.
In mediation, a trained, experienced individual sits with the parties. He/she first fleshes out the issues, both those above and below the surface, in order to determine what each party would, in ideal circumstances, wish to achieve. However, -and perhaps more importantly-, the mediator also attempts to determine what each party needs, from both a financial point of view and otherwise, in order to resolve the dispute and move on with their lives. Upon reaching such determinations, a good mediator then attempts to help the parties narrow the gap between their “wants” and their “needs” so that each of the parties can leave the bargaining table with a solution which is both satisfactory and with which he/she/they can live.
It is sometimes a lengthy back and forth process with both joint meetings and separate, private meetings and discussions with each side. When the payment of money is the issue, as it often is, often one side agrees to accept something less than what he/she feels deserves and the other side agrees to pay somewhat more than he/she feels he/she actually owes and/or wants to pay. Sometimes the solution involves installment payments over time or accepting a smaller sum than may be due for a period of time but, thereafter, receiving additional funds (ultimately receiving in excess of what might otherwise be due) over an extended period of time and, thus, equitably, offsetting the initial shortfall. Such a solution often gives each party what he or she needs to continue his/her business and to more importantly maintain a (business) relationship with one another. Not only is the dispute resolved but also a mutually beneficial (business) relationship is saved.
There are times when money is not the (most critical) item in dispute. Every case is different; the parties and their thought processes differ from one case to another. However, what is constant in all cases is that to reach a successful resolution each party must be satisfied that he/she has not been unfairly treated. Although it does happen occasionally, quite frankly, it is rare when either party is satisfied to the point of being thrilled; it is even more infrequent that both parties feel that way. Rather, it has often been said that when both parties are equally unhappy, a fair settlement has been achieved. At ADR, we do not want anyone unhappy; rather we seek that there be satisfaction.
The key element to reaching that goal is for the mediator to listen to each party (when necessary, allowing him/her to “vent”), discuss with him/her/them the various positions he or she takes at the various stages of the process and, depending upon the facts of the case, attempt to have each party look at, without necessarily accepting, the perspective from which the other party views the dispute. By doing so, very often the mediator will be able to reduce a wide gap in positions to a much narrower one and then, to thereafter, bridge the remaining gap.
The resolution occurs not because the mediator has imposed his/her will or opinion upon either of the parties or has told them what to do, but rather because the mediator has provided the insight of a disinterested impartial third party and perhaps has been able to cause the parties to conclude that the additional time, money and effort to continue the dispute (through litigation or otherwise) is impractical; that the amount then still in dispute is simply not worth pursuing. At that point it is “all over but the shouting”; or, rather in the case of a mediation, all that is left to be done is to reduce the agreement to a written document for the parties to sign. At ADR, we will see that is also accomplished.