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From the Blog of Phyllis G. Pollack.
It is often said that the purpose of mediation is to resolve disputes. Parties attend a mediation session hoping that, in a few hours, their dispute will be resolved. But, as is true with all aspects of mediation, sometimes we have to think “outside the box” in terms of why the parties are even attending a mediation session.
Sometimes, the purpose of mediation is not to resolve the dispute then and there but simply to break the impasse or stalemate that has already occurred by getting the “conversation” going. Many times, parties attempt to discuss settlement prior to attending mediation but “life” gets in the way, and the “conversation” gets interrupted. By attending a mediation session, the parties are in the same place at the same time and, at least, for a few moments or hours, can shut out life with its myriad of interruptions and converse with each other about settlement.
I had such a mediation last week. In a separate session, defense counsel told me she had been trying to settle the matter prior to mediation, but was unable to get any counter-proposals from plaintiff’s counsel. Thus, she was looking forward to the mediation session so she could, at least, start the settlement discussion, and perhaps, even settle the case.
At first, the thought went through my mind that the parties were not ready and/or not prepared for mediation. But then, I realized that mediation serves many purposes, only one of which is to resolve disputes. Another purpose is that exemplified here: to get the “conversation” started because the over taxed schedules of the parties and/or counsel had prevented that. Sometimes, the simple beauty of a mediation session is that it gets everyone in the same room at the same time focusing on the same issues. Given how small the world has become, how interconnected we are and how easily and quickly reachable we are be it by e-mail, texting, twitter or even an old fashioned mobile telephone call – this subtle aspect of mediation is wondrous. It forces people to stop, think, look and listen. It is a conversation “starter” rather than a conversation “stopper.”
Did the parties in that mediation settle that day? No – their “conversation” was just beginning, and it had some way to go before it could end. But the mediation session served its purpose; it enabled defense counsel to start the conversation with plaintiff’s counsel and hopefully, they will be able to resolve the matter without a trial.
For mediation to work, sometimes, we have to think outside of the box ….
. . .Just something to think about.
Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides. When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.
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