People often have a hard time seeing through others’ eyes. Conflicts are inevitable.
As a lawyer and mediator, I’ve seen lots of conflicts. Most people don’t understand what mediation is, just how broadly it can be used, and the range of value it brings to resolving private and public conflicts.
Mediation of a private dispute provides a safe harbor where parties can speak confidentially and reveal what may be driving the dispute, allowing breakthroughs. Generally, a mediator acts neutrally and does not pass judgment. The mediator gathers input from the parties and helps them navigate through their dispute to a resolution of their own choosing.
Unlike court or arbitration, there’s no ruling, which makes parties more comfortable. Mediation also allows a focus and timeliness that may not be possible through the overcrowded and slow court system.
Countless disputes stem from assumptions, misunderstandings, unclear language or communications, differing interpretations, and different honor codes, resulting in conflicting expectations. Virtually all disputes have an emotional underpinning with personal and cultural roots that must be understood and acknowledged. A party who feels disrespected will be angry and less likely to compromise. It’s critical to identify if there are emotional barriers and provide an outlet that allows parties to move forward.
Mediation has been used for decades to resolve lawsuits for money, often involving personal injury, real estate, business, and insurance disputes. Law and facts generally guide the discussion while the mediator probes parties’ unrealistic expectations and downplaying of risks. A huge benefit of resolution is avoiding legal expenses, stress and uncertain outcome at trial and appeal.
In public facilitation, a form of mediation, usually a project proponent invites the public to present concerns about a community dispute or matter pending before an agency. The approach involves coordinating with interested parties, establishing ground rules to achieve efficiency and respectfulness, as well as meeting with groups separately to build greater consensus. When oppositional voices are considered, projects can get improved or modified to where the opposition fades away and potential high-dollar, long-term litigation is avoided.
Proponents of a new land use or development with negative impacts are prime candidates for public facilitation, not just check off a box for community input that builds resentment. Local government should require such an approach prior to considering whether to approve significant matters.
Some lawsuits are filed to achieve an outcome other than money, such as blocking a project or forcing compromises. The mediator looks for conditions that might resolve the dispute. Neighborhood disputes, such as noise from a business or a land-use dispute, might get resolved by agreeing to parameters, such as time of event and traffic restrictions, or offering some public concession.
Concerns that courts cannot address find themselves at home in mediation. For instance, defendants may be pressed to resolve a matter in a calendar year for tax reasons. A workplace, family or neighbor dispute may need quick intervention. Where parties have to deal with each other, the mediator works on reinforcing the value of the relationship and creating rules to work better together.
Mediation can bring great benefits and should be encouraged in our community. Local government should require public facilitation when warranted for matters with negative impacts. When people feel their voice is heard in the process, the result is better for all.