What I Learned From My Own Mediation
I participated in a mediation several years ago. To set the stage, I had a long history of conflict with the other party. I had a lot on the line, and I was petrified of losing. When we couldn't reach a resolution in the early stages of litigation, my case was punted to mediation. I opted for the court-appointed mediator, not really understanding what my options were. This story is not meant to knock court-appointed mediators. It's meant to show how little I knew about the mediation process I was about to walk into, despite having a legal background. Hopefully you can learn from my mistakes because I see now that mediation can be a useful tool for conflict resolution.
All I knew about mediation was it should be voluntary and neutral. I entered the room nervous about what was going to happen, which is a very bad place to be making decisions. First off, I knew there was a power imbalance between me and the other party and in my personal life I had implemented a lot of boundaries to protect myself. I trusted the mediator would recognize my boundaries for what they were. Things got unbalanced quickly and I didn’t say anything because it was embarrassing. I should have called attention to it. Instead, I was too worried that I would look uncooperative. I spent a lot of time doubting my concerns instead of voicing them.
I should have spoken up. For instance, our discuss session lacked any sort of roadmap or agenda, which surprised me because we had one issue in play. Instead, the mediator brought a checklist for my case type and raised issues that weren't pertinent to our case. But once the issues were raised, they took us way off target and provided a forum for the other party to raise past grievances of all sorts. I didn’t want to appear like I was questioning the mediator’s method. Looking back, if I had met with the mediator ahead of time for a consult, I could have asked her questions and gotten a feel for her style. I'm sure her style works for some - it didn't work for me.
I came prepared with a lot of evidence. The mediator told me numerous times what she thought the outcome of my case would be, and it wasn't in my favor. Those words hung in the room for the entire session. I would say “but look at this record…” to no avail. This mediator didn't consider evidence. And I don't mean she wouldn't consider the weight or validity, she didn't even look at it. Mediators don’t have to consider evidence if they don’t want to, of course. But by not looking at my evidence while simultaneously giving me her opinion, she directly impacted the mediation. As I sat in that tense room increasingly unsure of myself, I agreed to a concession. It was the only concession offered from either side. I kept asking - when is the collaboration going to start? We spent most of our time hashing out our past disagreements and very little talking about the future. In fact, we engaged in zero creative problem solving.
We hit a very important mark - we had only 15 minutes left to our three-hour session. This is when things got serious. Our mediator was very concerned that we hadn't agreed to anything except for my initial concession. We spent the rest of our time formalizing our agreement based on her checklist, which was done very quickly. We signed the forms in a flurry and were out. These forms constituted an agreement that was legally binding. I should have asked for an extension, or I should have terminated the mediation once we started to hurry.
Since we didn't come to a full resolution, my next step was litigation. I faced the reality that I would need to hire an attorney, since the mediation had muddied so much water. One look at my mediation agreement and my attorney asked "Why did you agree to this?" I didn't have an answer. But we finally had our day in court. The resolution I received in court was the same resolution I had proposed during mediation, only it was a lot more stressful, took longer, and cost a lot more.
So that’s my story - but there’s hope! I reflected after my mediation session and recognized how little I knew about mediation even though I’m an attorney. I researched everything I could find about mediation: how its developed over time, its pros and cons, and how various aspects of the law have adopted mediation. It turns out people who use mediation can have empowering experiences where they walk away invested in a workable agreement. They might even learn something about the other party’s perspective that they didn’t know before. Here are the lessons I learned from my mediation session, which impact my work today:
The mediator can make or break the session. If you can, try to meet your mediator before you sit down at the session. Try to get a sense of their style - are they structured? Too formal? Do they listen?
Be prepared to use some creative problem solving if you want the negotiation to move forward. Without problem solving, it’s just an expensive conversation.
Own the mediation. This is your mediation - make sure you're sitting firmly in the driver's seat. If things start to feel unbalanced, speak up. If you're uncomfortable bringing your feelings up, ask to speak to the mediator separately. Ask for a break when you need one.
True mediation can leave you feeling exhausted, because it’s hard work and makes you feel a lot of emotions. But in the end, you should feel like you played a lead role in creating a solid resolution. You should leave feeling empowered.
Don't sign the final agreement if you aren't satisfied with it. Agree on some extra time to think about it or do a follow up session.