On winning a mediation
Does winning a mediation mean that your side won and the opposing side lost?
From my perspective as a mediator, I see my job as creating an atmosphere that fosters communication, in providing possible ideas for solving the problem, testing the strengths and weaknesses of the case. My job is to stay neutral and to not be swayed by the arguments of the parties.
Attorneys are paid advocates. The rules of professional conduct exist in part to ensure that attorneys be zealous advocates for their parties. Zealous advocacy can stand in the way of mediating a solution.
When a case comes to court ordered mediation, it is at about the last point that the parties have control over the outcome without court intervention. The parties have control over the mediation -- they may be able to choose the mediator, they may be able to choose whether or not to participate in the mediation. Control over the outcome is a strong motivation for the parties.
Winning a mediation means that the parties came away from the session with some mutually agreeable outcome that they had control over. A third party did not make the decision, they did.
So, if you want to win a mediation, come prepared to discuss the issues and needs that are at the heart of the controversy. Be open to discussion. Be prepared to compromise. Do not come thinking that your case is foolproof and that it is impossible to loose, because those cases have a tendency to loose at trial.
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