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The role of a mediator is often misunderstood. This can result in fuzzy or muddled expectations, and ultimately a failed process. Over time this lack of clarity can lead to counsel skepticism and resistance to mediation proposals. My “Design with Not For” approach aims to remedy this by establishing clear expectations about the mediation process, and about the roles of the mediator, the lawyers, and their clients.

Mediation works best when all the parties understand the process in which they are being invited to participate. The mediator and counsel can collaborate to determine the right balance between facilitation and evaluation. The parties can have meaningful input into their own role and that of their counsel. They can plan what information will really be required and how it will be shared. They can be encouraged to take more ownership of their own unique process.

Conflicts begins in our stories of the past and persists because of our attachment to that story. This has a huge impact on our path forward, and it is easy to view our positions as the best and sometimes the only acceptable outcome for our future. This explains a party’s willingness to endure the protracted nature and often prohibitive cost of litigation.

A skilled mediator will facilitate the sharing of stories. This is not about determining who is right or wrong, but instead seeks to reach an understanding of the underlying interests and needs that form each parties’ positions. This in turn sets the stage for the evaluative reality testing of options for resolution that are appropriate in each particular case.

In my nearly 30 years as a mediator, it has been my experience that for many simple and complex cases both mediators and lawyers can be effective collaborators in designing together a mediation process that fits the parties’ unique interests.

This “Design with Not For” approach seeks to establish, to the degree possible and right from the start, clear expectations about the mediation process, and the roles of the mediator, the lawyers and their clients.

The benefits for lawyers in this proactive design approach are threefold:

  1. The mediator becomes a very effective ally for the lawyer in managing the lawyer’s client(s).
  2. The time and effort required to properly prepare for mediation is much more effective.
  3. The client’s experience as a real and effective participant in the process is enhanced.

The result of mediations can have a massive impact on our lives. Something this important to the immediate well-being of the parties deserves to be properly designed.

For more information about these Steps or assistance with difficult negotiations contact:
[email protected]