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Marketing Mediation: Sitting in the other chairs
10 June 2007In the last month, I’ve had the opportunity to sit in the other chairs at the mediation table.
I had the opportunity to be an advocate for a client in mediation. A client had filed an EEOC claim and wanted legal representation at the mediation. So, I participated in the mediation as an advocate as one of my colleagues mediated the case.
It really was a refreshing and insightful experience. The client had expressed to me her misgivings about mediation due to a prior bad experience with a child protective mediation (Is it really appropriate to mediate cases where there may be child endangerment?). In any event, in the prior case (she was not a party) but a relative was and the mediator and the lawyer/advocate exerted strong pressure upon the party to “take the settlement offer” indicating that it was unlikely the party would do any better at trial. The party didn’t take the offer which was patently unacceptable to him and did in fact do better at trial.
All this as way of saying, it is important to know where people are coming from and what biases and experiences they bring with them.
Armed with this knowledge, I made an effort to advise the client but make sure that all decisions were hers and that she felt empowered to choose what she wanted to do at each and every step of the mediation. The case settled and I believe she got a good settlement and an opportunity to air her concerns with the company. While there may not have been a deeper resolution, it was better than a litigated outcome could have been.
As far as understanding the role of the mediator, I saw the value of the mediator from the other side. In this case I actually appreciated the fact that the mediator provided some legal evaluation. While I explained the legal weakness of my client’s case to her, knowing her prior experience, I did not want her to feel as if I was not there to vigorously represent her interests. Having a mediator that could be “the bad guy” and explore the potential legal realities of her case allowed me the space to be on her side and to help her explore what a good resolution could involve.
I also appreciated the fact that this mediator had years of experience with the EEOC and with employment law and was well versed in the legal issues. I did not find his legal evaluation to be out of line.
(I contrast this with my experience in “settlement conferences” with judges where the judge will tell you how bad your case is or how your legal arguments will fail, grossly overstating the weakness of your legal position and losing credibility in my mind).
I also had the opportunity to be a party (kind of) in mediation training. It was interesting. It allowed me to think about what is really useful. The teaching of skills was useful. What I found most useful was the mediator’s insight into where each side was coming from and what the core issues seemed to be. Also, the mediator’s contribution to understanding what the underlying interests/needs were when the parties were not necessarily able to think about or communicate at that level. Sometimes when involved in conflict, we can’t see the forest beneath the trees.
In marketing your mediation practice, think about what it is like to sit in the other chairs. Think about what you could bring to the table that could be really valuable to the lawyers, the parties and to everyone involved. How can you, the mediator, add value?
If you have the chance to sit in the other chairs, I encourage you to do so, it will take your insight on the above questions to another level.
NEVER GIVE UP!
Your partner in peace,
Kristina