Why Mediation works

Interests and Mediation

In a Mediation, the parties focus must be on goals and interests. It is easy to get sidetracked and absorbed in conflict, charged emotions and non-negotiable positioning, which are all non-conducive to the negotiation process. Such standpoints are stagnant, stationary and egoistic, leading to a detrimental state of impasse, for all parties. As Mediator, I empathize and actively listen, whilst managing the parties emotions, empowering the parties to get on with and get back to negotiating. My role is to bring parties back to the negotiation table and away from distraction, confusion, anger and frustration. I seek rationalization and realistic bargaining, assessing and managing risks, identifying needs and interests, mindful of wants and goals. I manage confusion, caution and conflict, so that constructive negotiation can continue. I, as Mediator, seek common ground and provide the foundation for a solid negotiation build.

Conflict and Mediation

Conflict is distracting, in life and in the litigation setting. Anger is a natural, charged emotion, which, most often, serves little purpose, causing depleted energy and useless exhaustion. Effective communication, on the other hand, is constructive, useful and insightful. It enables people to flesh out issues and identify what is important to clients, without the cloud of conflict and noise. Mediation is a powerful tool, when the Mediator actively listens and hears what is being said. What Mediation enables is for the parties to converse, openly, in a confidential setting, off the record, without need to be defensive nor cautious, in their positions. As Mediator, my focus is on assessing and managing risks, managing emotions, whilst delving deeper, to identify key issues, specific to the matter at hand. My role as Mediator is to provide a platform for good faith talks, reasonable negotiations and realistic discussions, without judgement nor pressure.

Time and Mediation

In trying times, an alternative avenue to Litigation is a fantastic opportunity to see if a matter can be resolved, effectively and efficiently, in the clients best interest, now, not down the road, at some juncture, when a Trial date becomes available or if/when Jury Trials resume. As the world seeks its unpredictable, unprecedented revival, the standstill on life has caused rippled irreparable delays, in the Courts, straining an already time sensitive, time period founded process. Whilst some matters befit the Litigation forum, many matters prove amenable and suited to Mediation and can and are mediated, early, avoiding the need to wait, for an available Trial date. As so much time has already been forfeited, stalling backlogged systems, Mediation can offer a viable option, a platform for early resolution and avenue of hope, saving your client time, money and stress. Time is always of the essence for your client, as life, never stands still, whilst uncertainty, adds avoidable stress. Give your clients matter a chance at Mediation. So far as risk management is concerned, Mediation is risk free, unveiling options, interests, expectations and risks, should your clients matter proceed to Trial.

Unpredictability and Mediation

You have a client, whose matter has faced difficulties and ongoing delay. Your client is annoyed, frustrated, confused and fearful, as there appears no end in sight, no light and no hope. The litigation process is not moving as you expected, for various reasons, many of which are out of your control. You feel that open communication will provide an option to discuss issues and highlight important aspects and key elements, of your client's case. You undertake a cost benefit analysis, going forward, trying to assess the risks associated with your clients matter and its present value and future cost estimates. You want your client’s expectations to be met, with a sense of realism, in real and fair terms Mediation is a wonderful platform to evaluate your client's case, whilst assessing the opponents position and argument. Mediation will not hurt your client's position and may lead to an early resolution, solution generation or at least, concrete discussion. If your client's matter does not resolve on the day of Mediation, this does not equate to failure nor represent a waste of time. In fact, every minute of the Mediation is constructive and forward moving, directed towards options and opportunities, for negotiation and settlement discussions, in a confidential setting, off the record and in good faith. Save your client an unnecessary wait in unpredictable times and discuss the Mediation option, to resolve their matter.

Litigation and Mediation

Every step and stage of the Litigation process encourages transparency, communication and reasonableness. The Claim is a synopsis of the cause of action in the suit. This Claim is fleshed out throughout the process, set up to test the legitimacy and theory of the case and its legal value. The Defence can request further information, to evaluate the case and challenge its credibility. In the Affidavit of Documents, more information is required to be disclosed, so that the parties know where their case stands and what proofs are to hand, required or lacking, to prove or disprove their case. At Examinations for Discovery, the parties are questioned and undertakings for information, documentation and proofs are requested. Expert reports are often sought, to establish or support the cause of action. The platform for communication continues, albeit formally, at Pre-Trial, where again, the case is dissected, by the Pre-trial Judge. Should the matter go to trial, the Judge or Jury decide the value of the case. At any time, an Offer to Settle can be made and the Rules scold a party who fails to give such Offer due consideration, should the case go to Trial and be adjudged for a lesser amount. Efficiency and effectiveness are key to your client’s case, negated by delay and unpredictability.

What Mediation offers is efficiency and effectiveness, as the Mediation platform offers an unlimited and unrestricted chance to engage in meaningful, off the record, confidential conversation, where Lawyers get the opportunity to directly address the other side’s client, not allowed via the Litigation route. It enables and empowers all participants to let their guard down, in a constructive fashion and be reasonable and rational, to get to the root of the issue, identify and address concerns and see, is there a plausible, possible avenue upon which to resolve the case. There is no pressure tactics in Mediation and no room for manipulation, intimidation, deception nor face keeping. There is simply a forum for open, honest and real conversation, about the case, with scope for blunt realism and realistic talk. Every aspect of the Mediation process is conducted in good faith. Everyone is at the Mediation for a reason. The reason is to establish can a Settlement now be achieved and is a Settlement, now, in the best interest of the client. At that end of the day, that is all that matters.

Confidentiality and Mediation

At the confidential Mediation table, good faith negotiations offer unrestricted possibilities. The process is not recorded and is off the record. The platform is informal. This is important as the Mediation session promotes and provides a safe, nonjudgmental space, where all parties can utilize the stage of honest real talk and explore plausible, reasonable options. The Litigation veil is ordinarily defensive, which, during the Mediation, is unveiled, opening an avenue for client focused progress, through theory testing, risk assessing and best alternatives exploration. Though the Rules encourage communication and Settlement talks, the formal sphere proves non-conducive to reality testing and realistic offers. Mediation, on the other hand, enables the parties to test the waters, examine the evidence, evaluate expectations and for once, manage and control, in a coordinated collective fashion, the case, the risks and the outcome. It is a shame and a waste, not to explore Mediation, which may hold the key to unlocking effective efficient results and timely closure, for your client, in the client’s best interest. Try Mediation, as a way to resolve your client’s matter, managing your client’s expectations.

Expectations and Mediation

Your client’s case has hit a wall. The wall is uncertainty. Anger and frustration are building. Your client feels overwhelmed and exhausted. The client’s interests are being blurred amidst confusion and delay. Time is of the essence, for your client's life and legal matter. Expectations need to be managed. Don’t wait, try Mediation. The platform is neutral, the atmosphere, informal, the possibilities, endless. It is in your client’s best interest to explore and exhaust every avenue to resolve their matter, effectively and efficiently.

Realism and Mediation

Time is always of the essence in life. Your client’s time is precious. They entrust you with it. Don’t waste it. Take the opportunity to explore a third party mediating your client’s matter, in a confidential, objective and fair setting. Engage in realistic talk with the opposing party and identify real concerns and common goals of the parties, by communicating, respectfully, off the record. Establish the approximated legal value of your client’s case, through the evidence and identify any obstacles that may pose an issue, threat or impassable block. Get to better understand your client, as a person, with needs, interests and expectations. Mediation acts akin a rehearsal of Trial, should the matter not settle at Mediation. This preview is valuable and insightful for the preparation process.

Negotiation and Mediation

The Rules of Civil Procedure strive for efficiency. They seek for the parties to be reasonable. They require timely disclosure and opportunity to seek evidentiary documentation. The process is a structured logical flow of case testing, from Claim issuance to Trial. However, the stance of a Lawyer is often firm, seeking to protect the client and ensure the client’s case is avidly pursued. This is justified, provided this avid pursuance is in the best interest of the client. What is important is that the parties do not lose sight of the end goal, which is a fair resolution of the matter, on its merits. The objective is not to extend the matters duration longer than is necessary, given the facts specific to the case. Mediation can offer a chance to explore where the case is at, test the theory of the case and see is the case settleable. It is worth pursuing.

Communication and Mediation

Never underestimate the power of effective communication. In listening, we learn and grow, by challenging our own perspective. Reality checking is key to advancing a case and is in the client’s best interest. Though the Rules of Civil Procedure encourage conversation between respective Counsel, the formal platform is non-conducive to realistic talk. What the Mediation table promotes is respect and honesty – respecting the right to disagree whilst acknowledging opposing party’s standpoint and the honesty to express concerns, common goals and interests. Active engaged listening is the foundation to a successful Mediation, actually hearing what is being said, not what we expect to hear. By listening, major issues, latent/patent risks, alternatives, compromises and consequences are advanced to the fore, for due consideration, deliberation and negotiation. There is always an alternative, which is worth exploring.

Creative thought and Mediation

Mediation strives to think outside the box, viewing alternatives as potential viable options. We all have thoughts and opinions, confirmation bias, preconceived bias and self-fulfilling prophecies. These shape our attitude and standpoint of the theory of the case. What the Mediator does is, objectively, as a neutral party, identify and confirm the legal and factual issues present in the case and acknowledge the position of the parties. Every comment is respectfully invited and welcomed at the informal Mediation forum, where the objective is to assess whether the matter is settleable or not, that day. There is no failed Mediation, provided the parties attend in good faith and engage in realistic, reasonable conversation and negotiation, off the record. Mediation benefits are multifarious and far reaching.

Settlement and Mediation

When we speak of settlement, we are talking about a degree of compromise. Some perceive this as letting their guard down or giving in. It is quite the contrary. In fact, a compromise is not akin a weakened position, but represents a smart and client focused decision, having weighed the litigation risks of the case. At Mediation, the decision makers are all present, at the same time and place, whether virtually or in person. All parties as legally allowed to directly communicate with one another. The parties have control of the process, that day. Any other day requires formalities for conversation and leave the ultimate decision of the legal value of your client’s case, in the hands of a Judge or a Jury. Where there is a mist or cloud of concern or risk hanging over your client’s case, it is befitting to engage in Mediation. At Mediation, risk is identified, and the client is present, thus, heard, listened to and respected, for their interest, expectations and input, in the negotiation process. The client at Mediation is duly treated as a human being, with a legal grievance, who has a life independent of the claim, not merely a file number. The end goal is to assist this person achieve a settlement if the matter is settleable that day, so that they can move on and forward, with their life. Time is of the essence, at all times, for your clients onward lives. Mediation can expedite this process.

Reality testing and Mediation

Mediation is about openness and options. It is a preview of how the case will present and be presented at Trial, should the matter not settle. It is an opportunity for Counsel to hear the other sides theory of the case and proofs to hand to support that theory. It reveals gaps in the evidence and further evidence required to prove or disprove a claim. It provides an invaluable opportunity for Counsel to talk directly to the opposing client and evaluate credibility. It is a unique opportunity to better understand one’s own client, their interests, concerns and expectations. There is no persuasion at Mediation but there is reality testing of live and pending risk. Every avenue towards settlement is exhausted at Mediation. There is no room nor space for feuds, disrespect, deception nor non-negotiable positioning. The Mediator seeks to explore whether a reasonable compromise is available and acceptable, on the day of mediation, to bring the matter to its most befitting close. The client’s lawsuit is a commodity, but their life and time are not. As the great majority of Civil suits settle before Trial, Mediation makes a lot of sense and is risk free.

Risk management and Mediation

At Trial, Counsel argue their positions. Lawyers, from the outset, formulate and develop a theory, establish a position and commit to represent the client’s case. However, the client has personal interests and expectations which need to be identified and managed, from inception, to file closing. This is not an easy task and often, an evolving one. Mediation can offer invaluable insight into the client's personal position, which is pivotal. The theory of the case and the interests and expectations of the client are inextricable, from the client’s perspective and must be addressed and attended to. What Mediation enables is real conversations, which unveil the human element of the file, often misplaced, in the Litigation process. Firm positioning can present and represent a block to settlement thoughts and talks. Litigation risk can be attenuated, by tunnel vision standpoints, which are not client focused Mediation offers the deciding parties control of the reigns, to command the negotiation, discussion and outcome. It is a safe space to engage in meaningful conversation, inviting deep delving, to see if the matter is settleable, that day. This is key to effective and efficient file management, which is clearly in the client’s best interest.

Compromise and Mediation

There is no weakness in compromising. There is no client benefit in mind games, distracting techniques nor efforts to out negotiate opposing Counsel, fueling a feud. Such strategies are exhausting and time wasting. The concept of compromise is misconstrued as submission, but in reality, displays adept appreciation of the client’s case and the risk involved in bringing the matter to Trial. For, there is no perfect case and there exists no legal formula for a guaranteed Judge or Jury Trial win. Uncertainty is prevalent throughout the Litigation process, as the file evolves. What Mediation does is dissect the case, in a confidential forum, where the parties can talk, off the record and be real about the highlights and lowlights, both patent and latent. A case often transforms into a questionable façade, where the founding foundation to substantiate the cause of action is lacking, conjectural or precariously risky. It is important to evaluate this and think about the best strategy for the client, going forward.

Mediation offers a safe, secure stage to test the case, behind closed doors (or via Zoom virtual doors), which proves an opportunity for early resolution, effective and efficient solution generation and a chance to better prepare your client's case for Pre-Trial and Trial. In order to best serve your client, identification and management of all aspects of the case is a must, which means that reality testing conducted at Mediation, is an invaluable tool and learning exercise. Compromising, so as to arrive at a realistic and reasonable solution, is a client focused approach, mindful of risk, interests and expectations. When the totality of the evidence is put on the table, open and honest negotiation can bring a matter to an acceptable settlement, enabling the client to move on with living their life, and not continue to have their life placed or put, on hold or pause.

Listening, perspectives and Mediation

In a Mediation, there is no persuading the other side that you are right and they are wrong. That is ok and that is to be expected. This is partly due to a pre-conceived positional stance and resolute appearance that Counsel assumes as Counsel of record. However, at Mediation, we have the main player present, the client, whom we all must respect, hear and truly listen to. Although we don’t agree with the other party’s theory of the case, we can respectfully disagree and listen to their standpoint. It is important that Counsel does this, as from every comment and theory, we can and do learn. Why? Perspectives. We all have our own perspective and though it guides us generally in life, it can be a hazard to our insight and broader grasp of matters. When we brainstorm, which is something that can be achieved at the Mediation, there is a meeting of the minds, a common purpose, an array of commentary and an amalgamation of thoughts, knowledge and wisdom, which all operate, in synchrony, to produce a thorough assessment of the theory of the case. With respectful open communication and active listening, we enable and empower ourselves to hear things we neglected or refused to consider, which may be crucial to the case and something that would prove lethal to overlook, ignore or disregard. There is no loss from further learning and only gain, should the matter not settle at Mediation and be argued in Court before a Judge or Jury. When we don’t listen, we lose out on a wealth of information which may prove key to our client’s case. When we listen to say our responding piece, we are not listening. We are timing a speech, disengaged, disrespectful and disinterested. Mediation works when active listening is constructively coupled with reasonable realistic talks.

The value of time and Mediation

Mediation is a neutral platform, without judgement. It is a safe space to openly express concerns and air grievances. It is a powerful informal ground to talk as humans about a matter involving a human client, with interests and expectations, who, effectively, has put their life on hold, pending resolution of their case. It is an opportunity to see can a controlled solution be unveiled at Mediation, as opposed to waiting for an unpredictable decision at the end of an unknown future Trial date. It is an option to remove uncertainty and risk from the equation and settle the matter, now. It is a chance to be reasonable without fear of repercussions about your position, comments and expressed thoughts. It is a forum to get real and get talking realistic realism, in the client’s best interest.