The Sufi Poet Rumi once said:
“Out beyond ideas of wrong doing and right doing there is a field. I’ll meet you there.”
Conflicts can be said to begin in our stories of the past and our attachment to our positions as the best and sometimes only acceptable outcome for our future.
This helps to explain a party’s willingness to endure the protracted nature and often prohibitive cost of litigation. Lawyers, in turn, face the considerable challenge of balancing litigation tactics and strategies with ongoing opportunities for effective settlement negotiations.
The skilled mediator is always initially facilitating a sharing of stories, not for the purpose of determining who is right or wrong, but with the objective of understanding the interests and needs that underlie each parties’ positions.
This in turn sets the stage for the evaluative reality testing appropriate for each unique case.
Depending on the degree of attachment to their story and its associated fear, anger, and frustration this facilitation can happen quite quickly or it can take considerable time and effort. Determining this balance between facilitative and evaluative mediation is a key question for the front end design of most mediation processes.
In my nearly 30 years as a mediator, it has been my experience that for many simple and complex cases mediators and lawyers can be effective collaborators in designing together a mediation process that works.
This “Design With Not For” approach seeks to establish, to the degree possible and right from the start, clear expectations about the mediation process, and the roles of the mediator, the lawyers and their clients.
The benefits for lawyers in this proactive design approach is threefold:
- The mediator becomes a very effectives ally for the lawyer in managing the lawyer’s client(s).
- The time and effort required to properly prepare for mediation is much more effective.
- The client’s experience as a real and effective participant in the process is enhanced.
David Gould (LLB, QC, C Med) has helped hundreds of lawyers and their clients – business and government organizations, and individuals – in conflict situations to co-create solutions for the future. For more information, contact: firstname.lastname@example.org or visit www.davidgouldmediation.com.