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Some people struggle with the idea of mediation. In particular, they question why someone who seeks to solve a dispute in court, and is preparing for litigation, would want to then negotiate toward compromise rather than winning a case outright. To help illustrate why mediation can sometimes create a better brand of victory than litigation, it’s useful to think of a lawsuit as a war – literally.
Imagine you and your opponent in a lawsuit are generals waging war with your armies. The war has dragged on for months without either side making significant gains. You’ve sent spies against each other, staged sneak attacks, and lost hundreds if not thousands of troops in battle. Both armies are losing numbers, losing morale, and losing the will to fight – but the idea of winning urges you on, even though you might end up without the troops necessary to hold whatever territory you might gain at war’s end.
You decide to contact the opposing general about a peace treaty. You and your adversary drop your weapons, and you meet to try to work out terms. But you and your adversary speak different languages, have different customs and different ways of doing business. You realize, even though you both want to prevent further losses and end the war, that you need an interpreter to bridge the language and cultural differences between both sides.
In this scenario, the armies are your assets – your money, your time, and your energy. The decision to seek out a peace treaty is the decision to seek mediation – you realize that ending the war is better for both sides than continuing to fight. And the interpreter, to help you and your enemy understand each other? That’s the mediator, helping the two sides to communicate and come to an agreement.
Mediation differs from litigation in that there’s not automatically a winner and a loser – a skilled mediator will work toward a solution that fits the needs and meets the goals of both parties, be it a dispute involving a divorcing couple, business adversaries, or people settling disagreements over contracts.
It can be extremely challenging to come to the table with people who may have hurt you – especially if they started the conflict and are expecting you to eventually give in to their demands. But if you’re like the general who wants to end the war, rather than lose everything trying to win it, then mediation can be a way for you to get to an agreement that addresses and resolves the suit. A settlement doesn’t mean you’re settling for something less; rather, you’re settling a dispute before it exhausts your resources.