Some of the Differences Between Litigation and Mediation

I’d like to talk about a few of these points this week. We will talk more about these points as the year progresses.

One of the real differences between parties involved in litigation as opposed to mediation is the focus of the parties. In litigation, parties focus on past behaviors, blaming the other side for the dispute, they focus on the dispute and they focus on how they can win their case. In mediation, the parties focus on solutions and on the possibility of resolution. The focus of the mediator is to get the parties focused on the future. 

Many times, parties are at impasse because they are spending too much time in finger pointing.  They blame the other side for the dispute. They blame the other side for the expenses they are incurring. They blame the other side because they can’t sleep at night. In litigation, much of the time is spent demonizing your adversary. 

We have gotten to the point in our society where we cannot talk anymore. We must be able to talk about difficult things. When we get to mediation, a skilled mediator will allow the parties time to talk about their feelings and where they are at emotionally. This is an important part of the process.  As Harold Coleman used to say “The job of the mediator is to be able to have a series of difficult conversations.”  The mediation may be the first time that a party has had a chance to express their feelings to a neutral third-party. The mediator must be prepared to discuss the emotions that the parties are feeling in this moment.  He or she must be able to have those difficult conversations.   

After parties have had a chance to discuss the problem and their feelings, and to acknowledge each other’s feelings, the mediator may get to a point where he or she feels that the parties are now are then ready to focus on solutions. As mediators, we try to focus the parties on the future, to focus on possibility and to focus on the solution. I often ask the parties at a mediation, “If this mediation could resolve in the best way possible, what would that look like to you?”  I may ask “As you look towards tomorrow and the day after that, what would your relationship look like, if this could turn out in the best way possible?”  These questions focus the parties on the possibility of resolution, rather than the obstacle in front of them.  Focus on the solution, not on the problem.  Many times, parties do not even know what they are looking for with a successful mediation, because they are focused solely on the problem. By asking these questions, we start to put some structure around the end goal and start to get the parties thinking about resolution, rather than the just the opposite of what the other side wants.  

It is sometimes hard for a party to see a solution, when all they are focused on is the problem.