If the Parties Can’t Agree, How Can a Mediator Help?
“We just can’t agree. Mediation would be pointless.”
“We should be able to work this out on our own. We don’t need to mediate.”
These are pretty common statements that parties involved in a dispute make about mediation. Many disputes arise between sophisticated, intelligent people who are completely capable of negotiating directly with one another. The parties know more about the facts and circumstances of their dispute than a mediator does. They may be represented by attorneys who know more about the legal issues than a mediator would. Why can’t parties simply resolve matters on their own? What advantage does mediation have over direct negotiation?
In some cases, settlement agreements are fairly complicated. When a married couple with couple decide to divorce, state law requires that settlement agreements incorporate a number of required forms and address specific terms. A couple divorcing amicably might be able to complete a settlement agreement by carefully studying model forms and self-help materials, but a skilled mediator can help guide them though forms and help them address necessary terms and stay focused.
In other cases, the key terms of settlement agreements are not very complicated: it may simple be a matter of a dollar amount. Identifying the value of mediation in civil cases that are primarily about finding a dollar figure that will settle a lawsuit may require some discussion of psychology, the dynamics of litigation and mediation theory.
I hope that mediator, attorneys and individuals who have participated in mediation sessions will share some of their insights on this topic. Why does mediation often work when direct negotiations fail?
