Mediation Tip: Problem-Solving 101

Patrick Russell
6 days ago
3 min read

A Rubik's cube and the words Solving Problems

The Key to Mediation Success is Problem-Solving

Settling a legal case at mediation is similar to solving a Rubik's Cube. Just like a Rubik's Cube, a legal case has many different intertwined facets that must be aligned to find a solution.

First, there are the people, namely, lawyers and clients on opposite sides, each with their own perspective, personality, and truth.

Second, there are the legal issues and claims that each party has and shares in the case. Hint: This is the real problem.

Third, there are the needs and wants of all the participants at the mediation, which may not be aligned.

Success at mediation occurs when all these pieces are examined, moved, and aligned for a common purpose: finding a solution to the problem.

Align the Participants for The Common Cause

Often, the biggest challenge at mediation is the people and not the legal problem.

We are all different in many ways. People respond differently to conflict. They arrive at mediation with diverse agendas and personalities. Communication styles and how people process information vary widely from auditory to visual.

Regardless of these differences, the first task is to bring this disparate group together to work on the common cause for solving the legal problem that brought them all together for mediation.

All too often, mediation participants treat each other as if they are actually the problem. Matters are taken personally, and emotions can hijack the process. By doing this, the parties lose focus on spending time solving the legal problem.

Regardless of the cause of the problem, a solution must still be sought. A flat tire still needs repair, regardless of the reason it is flat. Blaming the driver or the road is not going to fix the tire. Your time is better spent finding solutions.

Finding Solutions to Problems

The goal of mediation is to explore solutions to the legal problem of the case. If the parties are united in this cause, finding solutions to problems will be much easier.

If, however, the parties come to mediation with a different goal, such as seeking certainty in a result through trial, delay, vindication, or some other objective, then mediation may not be fruitful.

Their Problem is Your Problem

The first step is for the parties to understand that by solving the other party's problem, they will solve their own. There is one life preserver, and they will need to figure out how to use it together, or they will sink.

Identifying the problems your counterpart has puts you in a position to offer solutions. By providing solutions to the other party's problems, you are bringing value to the negotiation. Leaving such matters unaddressed can be a roadblock to resolution.

Identify the Needs of the Parties

The second step is to identify the bare minimum needs each party has to resolve a case at mediation. The needs of a party are different from their positions at mediation. Positions are the arguments and views that each party will use to frame their legal case. All too often, more time is spent at mediation discussing positions rather than needs. Needs are the desired outcome for each party to have a resolution.

The primary need for both sides is the resolution of the legal dispute, followed by monetary terms, time, and other non-economic factors. A resolution is possible only if the needs of all the parties can be aligned and satisfied. As such, each side must address and exchange their minimum needs during mediation rather than focusing so much on positions.

Separating Needs from Wants

The final step is to separate needs from wants. Think of a need as a requirement, while a want is a bonus. When purchasing a car, it would be great to have a Ferrari. The Ferrari is a want, but what I really need is a car.

Parties often mix wants with needs and anchor those demands at mediation. This confusion can lead to unreasonable expectations. The better approach is to identify your critical needs first and then rank additional wants in order of importance to you. If the needs of each party can be met during mediation, they can then negotiate and attempt to obtain additional wants for a resolution.

The Takeaway

Do not underestimate the complexity of all the moving parts involved in mediation. Mediation is a complex process. Mindful of this complexity, mediation outcomes can be enhanced with preparation and the adoption of a problem-solving mindset. Unifying the parties around a common cause of finding solutions to resolve the case, while ensuring the minimum needs of each party are met, will go a long way towards solving the puzzle.

Less conflict. More resolution.