How does mediation work?

Mediation is about talking constructively about what matters most.  That’s not the easiest thing to do in normal circumstances.  And when you’re have a disagreement, it’s harder still, especially when you’re frustrated.  Mediation works because you have a trained, experienced professional mediator helping you.  I’ll help you describe and hear what’s most important to all of you, to reach a common understanding about your situation, and maybe come to an agreement or other solution.

You will meet with me, both individually and together with the other people involved.  We’ll focus on identifying the situation, on what’s important to everyone concerned, and on what possibilities there are for improvement.  If you have other advisors or support people they may be involved in these conversations.

When we’re meeting together, I’ll help you have those constructive, productive discussions that will make a difference.  This is the power of mediation — that as your mediator I help you talk together directly in a way that gets you to the solutions you need.

When you meet individually and confidentially with me, you have the unique advantage you get with no other professional advisor:  I am also meeting individually and confidentiality with the other person.  This is the power of intermediation — that as your mediator I’m there for you both, still keeping your individual confidences, yet guiding you in your discussions together on how to reach the solutions that are possible.

How do we get started?  What’s going to happen?

After you first call or email me, we’ll setup a conference so we can talk and you can decide if working with me is of interest to you.  At the end of that conversation I’ll lay out some next steps.

Those next steps depend on you and your situation.  If the other person involved is not yet on-board with the mediation idea, we’ll have to decide together how best to approach them, what’s called engagement.  Some sort of situation assessment will be necessary, usually my talking to the people involved by phone or maybe in meetings.

We’ll then meet for the actual mediation.  More than one meeting may be required to address your situation.  Some follow-up work may be necessary.

At each stage along the way we’ll decide together what needs to happen.  You’ll always know what will happen next.

How long will it take?

We can setup the first conferences in a matter of days, and unless more extensive assessment is necessary, probably the first meeting can be scheduled for as soon as everyone’s schedule allows.

How long it takes after that depends on your situation.  Some take just a couple meetings, some just one, some benefit from more than that.  The length of time has something to do with the complexity of the facts or law or the amounts in dispute.  But it’s even more a function of the dynamic between the people involved and how important the situation is to them.

It may be that you and the other people involved have different ideas how much time needs to be spent.  Pacing will be one of the things we’ll have to work on.

So almost any type of case can go from start to finish, from first call to final agreement, in a few days to a couple weeks.  And some take longer.

For those people who need to work quickly because of outside circumstances, I can often work to accommodate your schedule.

Where’s this all going to happen?

When we meet all together, it’ll usually be in my conference room in Seattle.  Sometimes it makes sense to meet elsewhere.  If you’re outside Seattle, we can figure out the best place to meet.

Can we do this over the phone, via email or a video conference?

We can often do some preparation work, follow-up or special projects using these tools.  But the situation is rare than can be done completely that way.  Nearly every situation benefits from the unique dynamic of a face-to-face meeting.

Often people think they have a situation that could be solved with just a quick phone call from a disinterested intermediary.  We’ll look for those opportunities, and it is sometimes possible, but they don’t come around as often as people think.  It took some time for you folks to work yourself into the situation you’re in, and it’s going to take some time to work out of it.

How much will it cost?

I charge initially by half-day or full-day meetings, and will quote you a fee for a meeting ahead of time.  I can often provide a quote for a half-day session that includes pre-session conferences.  Follow-up work is charged by the hour; I can give you an estimate beforehand.

Every case is different:  how many parties, who is involved, whether it’s already being litigated, whether other people are involved, how many, and whether people have legal advice or representation.

Give me a call so we can discuss the situation.  After we talk I can give you a preliminary quote for the first meeting and my best estimate for what else may be required.

I’m concerned I’m going to sink a bunch of money in this only to find we’re not going to reach agreement.

Wouldn’t it be great if I could give you guarantees?  I’m sorry I can’t.  But here’s what I can tell you.

I can often structure a fee that allows you to have the pre-mediation conference before you pay me.  If after that conference, for any reason, you or the other person don’t like what’s going on, don’t like how I do things or don’t think it’s going to work, you’re done, and you’ve not paid anything.

And after we start the mediation, unlike litigation, we can often tell pretty quickly whether the process has a possibility of reaching the agreement you’re after.  If not, you’re not committed to anything further.

We used to get along pretty well before the disagreement.  Can we talk about that in mediation?

Sure.  Maybe you’ve seen how disputes can take a toll on personal and business relationships.  And if you’ve ramped-up your conflict in a lawsuit – fighting even more antagonistically than before – the toll can be even higher.

In a mediation it’s possible to rebuild damaged trust by carefully managing the discussion.  You can discuss a restructuring of your relationship or even building a completely new one.  This is possible because you’ll be working together toward a solution to your disagreement, which can sometimes be much the same as working together on rebuilding the relationship.

There’s a chance that, if you can find a way to address the disagreement constructively, you might also be able to rebuild the relationship into something that works again for everyone.

I want things things done discretely and kept confidential.

Then mediation is for you.

Court records in lawsuits are public records and accessible to anyone unless you can convince the court that they must be sealed.  Recently, at least in this area, the courts have been a lot more hard-nosed about not sealing court records.

Your mediation is protected by laws which provide that what happens in it is privileged – that it can’t be brought out in court.  And mediation is as confidential as the people involved want it to be.

Does mediation work?

It does work.  Mediation organizations that keep records report reaching agreement in 80-90% of cases or more.

Is this going to work for me?  Are we going to reach agreement?

I don’t know.  I can’t say.

This is one of those situations where “if you think you can — or you think you can’t — you’re right.”  Because you’re in control.  Not me.

“You manage what you measure.”  If I measured settlements when people mediated with me, then they’d be reaching agreements all right — I’d be making sure of that.  But I don’t, because then it wouldn’t be their agreement.  Instead it would be my judgment of what’s best for them.  So it wouldn’t be viable.  It wouldn’t be sustainable.  And it wouldn’t work.

What I want to know is, years from now, will the memory of the settlement still make you wince, just like the dispute did before it was settled?  Or did you reach a resolution that lets you feel better about what happened?  If I can find a way to measure that, I will.

So I won’t promise that you’ll reach resolution, negotiate an agreement or hammer out a settlement.  What I can tell you is that if there’s a solution there to be had between you, I’ll help you find it.  Whether you want to agree to it is up to you.

What’s the biggest challenge in a mediation?

When people have the intention of not reaching an agreement.

They’re there, and they may be talking, but for whatever reason, coming to an agreement with the other person is something they’re not interested in.  That’s the biggest challenge.  Because if they don’t want it, I can’t make them want it.

Maybe they still need to be in conflict.  They’re not ready to let it go.  They don’t want to focus on what’s most important to them or are having difficulties focusing on it.  Or they’re still wanting something that they can’t even admit to themselves.  I can sometimes help folks in this situation.  Sometimes I can’t.

But if people want to reach an agreement, they’re already more than half-way there.  I can help them move the rest of the way.