Prepare for dialogue - not war

‘You must always be willing to truly consider evidence that contradicts your beliefs and admit the possibility that you may be wrong. Intelligence isn’t knowing everything, it’s the ability to challenge everything you know.’ Thinking Humanity

That’s so true of mediation, a process that encourages parties to challenge their beliefs rather than confirm them with the aim of expanding knowledge, options and ideas.

Mediation isn’t litigation light.

It’s not about sticking with the principle of who’s right and who’s wrong but rather an opportunity to step off the litigation conveyor belt and have an open and honest debate.

Mediation is more akin to a conversation than a court case and the biggest mistake that most parties make is to stick with the adversarial mindset that has fuelled the dispute so far.

Having mediated many commercial disputes my one piece of advice to lawyers and their parties is "Prepare for dialogue and not for war." Coming to mediation with an open mind, prepared to consider new evidence and ideas and to challenge everything you already know can pave the way for fresh analysis and creative thoughts on resolution, ensuring that the mediation doesn’t end up with a ‘See you in court’ conclusion.

It’s important to remember that success doesn’t always mean ‘winning’ in the legal sense and may include other outcomes such as being able to move on with life or finding alternative ways to trade value.

Settlement and resolution are different outcomes. Settlement is a deal agreed upon and the underlying sense of conflict may remain, whereas resolution includes a sense of acceptance and peace at the result achieved.

One of the key benefits of mediation over litigation is the potential for the parties to come away with a mutually agreeable settlement AND a sense of resolution or peace. And you can’t achieve that until you’ve listened to the other side with the willingness to be open-minded and enter into an honest conversation.

So next time you have a mediation in the diary, think about preparing with your client for a process of collaborative dialogue rather than adversarial debate. You’ll be more likely to achieve a positive outcome and help your client avoid the litigation route.