10 Things I Learned about Conflict as a Mediator

It’s Never about Money

I’ve seen litigants pay $90 in filing fees to sue each other for $100. I’ve seen plaintiffs spend $50,000 in litigation costs to secure a $60,000 settlement when they could have mediated the case for less than $2,000. I’ve seen someone sue their neighbor for $5,000 over the trimming of a shared tree. Conflict is never about money. Money is a channel through which individuals seek to be made whole. Sometimes, a litigant is seeking something intangible, such as justice or an apology. As a mediator, it’s my job to listen for clues about what the parties can offer beyond dollars.

All Perspectives are Valid

My first rule as a mediator is never form an opinion on a case. For me to do my job well, it’s important for me to maintain a nonjudgmental stance internally and externally. There have been cases where I start to think a defendant is guilty, a liar or completely irresponsible. Eventually, the defendant always says something that creates reasonable doubt and brings me back to a state of neutrality. My job as a mediator is not to determine who is right or wrong, but to look at the dispute through each person’s perspective.

Many Disputes Can Be Resolved with a Conversation

I’ve seen disputes with tens of thousands of dollars at stake end in 25 minutes. In one case, a customer was given the runaround from several people at a furniture company and couldn’t get the customer service she needed. She resorted to litigation to get the company’s attention. With the right parties in the room during mediation, the case settled quickly. Think about how much money the furniture company could have saved in litigation costs if they had a more engaged customer service team that could escalate issues properly.

Air out Feelings before Negotiating

Mediation is a dance and it has a certain flow to it. Every now and then I get a group of litigants or attorneys who want to “cut to the chase” and start negotiating. Jumping right into the negotiation cuts out a crucial part of the process. I always start mediation with my litigants in the same room, to discuss the events that lead up to the dispute. Often, it’s the first time the parties are having a face to face conversation about the issue. It’s important to first flesh out the details of what happened to understand the parties’ frustration before negotiating numbers.

It’s Critical that the Parties Create Their Own Solution

My second rule as a mediator is to never recommend a solution. I may ask certain questions to make sure the parties have considered all parts of the problem, but I don’t tell them what to do. Mediation is a creative process and parties should feel empowered to generate their own solutions. Even if two parties agree to settle, there’s no guarantee that the parties will abide by the agreement. If parties come up with their own solution, they are more likely to follow through with the settlement agreement.

Authenticity Goes a Long Way

Very often, parties will posture in mediation. Posturing in a legal context is when attorneys or litigants behave in a manner to intimidate an opposing party. They may bluff about the solidity of a case by claiming they are fully prepared to go to trial even if they plan to settle. This is meant to force the opposing side to make concessions. While this may seem like an effective negotiation tactic, a genuine demeanor goes a long way. You’re more likely to get concessions from the other side if you say something they can relate to instead of trying to get them to be afraid of you.

Attorneys Can Make Things Better

I take a problem-solving approach to mediation. The parties have a problem and I am there to help them resolve it. When each party has representation, it balances the power scale because each side has someone advocating for their interests. Attorneys are helpful because they explain to their clients what their legal rights are. When litigants understand their rights, it allows them to make a more informed decision that they can accept. I can focus on what I do best as a mediator and the attorneys can focus on what they do best.



Attorneys Can Make Things Worse

I can’t disclose the number of times I’ve spent a mediation session mediating the attorneys instead of the litigants. I’ve had cases where two attorneys refused to sit in the same room together. I had a case where an attorney settled a $6,000 dispute for $500 because she hated the opposing attorney so much she couldn’t wait to get off the video call. I’ve had attorneys who were friends and didn’t want to be in the same room because they actually liked each other and didn’t want to argue in front of their clients. I’ve had attorneys try to negotiate from what they think is personally right or wrong rather than what the law says their client is entitled to. It’s important for litigants and attorneys to check their ego at the door and keep an open mind.

Humans Have a Great Capacity for Compassion

As a mediator I have the opportunity to see people at their worst, but I also get to see people at their best. I’ve seen parties who completely disagree, but respectfully work towards finding resolution. I’ve seen genuine kindness, empathy and creativity arise out of a legal battle. My career as a mediator has only strengthened my faith in humanity.

Conflict is a Place for Personal Growth

In mediation, there are no winners or losers. Sometimes you get less than you expected and sometimes you give more than you expected. Some parties leave with a sense of relief and satisfaction. Some parties leave feeling like they left something on the table. This is where conflict teaches us a valuable lesson in cooperation and acceptance. We can never know why conflict is part of the human experience, but we can acknowledge that conflict plays a significant part in our personal growth.