Here’s a situation… someone you know calls you up (it could be a friend of a friend, a neighbor, a referral or so forth), they know you are a lawyer and a mediator (sorry this scenario will not apply as much to mediators who are not also lawyers) and they have a conflict.
They are calling you because they need help. They may have a legal claim but they definitely have a “conflict situation.”
Do you tell them they must first go to a lawyer and understand what their legal rights are?
Do you explain mediation to them and explore the possibility of reaching a pre-litigation resolution of their dispute?
In this scenario, the other party would not be represented by counsel (in this pre-litigation stage, at least with respect to this case) and then the question is, what do you do next?
Do you ask the person who has contacted you to contact the other side to explore sitting down at mediation? Or, do you offer to call them yourself (some mediators I’m sure shudder at the thought of this)?
Many mediators I know (who are legally trained) will not talk to parties in conflict who have not consulted with lawyers first. Sometimes, you may be inclined to do all of the above.
And, what else could we as mediators do?
Last year I had a friend contact me re: a business dissolution and need to get contribution from defacto partners on debt. Mediation would have been a great choice. He was on board. But did he first need to know what the statute of limitations was? Did he first need to know what his best legal arguments were? There were some unknown legal issues and if he were to have leverage over the other guys in the former business, I thought he needed to know the strength of his legal position.
Needless to say, he went to consult with a lawyer and nothing has been done since then. His claim is probably time barred and I doubt whether he would be able to persuade the other parties to come to the table because “it’s the right thing to do.” It depends on the integrity of the people involved, certainly with some business relationships people will come to the table.
Sadly, most people in our society won’t come to the table unless they are forced to (or are coerced to by the threat of litigation). I wish that as a marketer of mediation I could say, yes, propose the collaborative option and everyone will come to the table. That would be foolish and naive.
So, what do you do? If we are to expand the field and how we can help people in conflict are there creative approaches that we can take when people in conflict come to us for help?
Let’s start exploring the possibilities…
Sound off won’t you?
What can we do?
NEVER GIVE UP!
Your partner in peace,