We often hear the phrase “He just needs his day in Court.” This phrase can mean any number of things, but I think it often means a person really needs the opportunity to be heard. Sometimes a person just needs a third party to hear both sides of an issue and help find the resolution.
These needs can be met in a productive mediation session. While I do not declare a winner or loser in mediation, I think if I do my job properly and the parties determine that it is in their best interest to settle, then both sides feel that, to some extent, they’ve won.
We’ve all heard the old saying:
“A good settlement is when neither side is happy.” I understand that, but I think that it misses the point. Rather, I would say, “A good settlement is when both sides factor-in the pros and cons of continuing litigation versus reaching a settlement, and determine that it’s in their best interests to settle.”
Mediation, like litigation, is about risk. In assessing the risks, attorneys and clients have to consider numerous factors — including costs, probable results and demands on their time.
I recently conducted, in the same week, a will contest involving a multi-million dollar estate and a medical malpractice/wrongful death suit. They were two entirely different cases, but the emotions — and the needs of the parties in both cases — were very much the same.
My primary objective in both cases was to allow the parties to be heard. I took the time to peel back the proverbial layers of the onion, and explore the emotions involved. There was some cussing, a few tears, and plenty of venting. However, through it all, there was healing, and — ultimately — resolution.
One party wrote me after her mediation.
Here’s a brief excerpt from her letter:
I just wanted to thank you for all your efforts to get a fair resolution of our suit. The last 14 months have been an emotional roller coaster for my sister and me. Our frustration has been with the legal system, but it is over and we thank you. Because of you and our attorneys, we feel vindicated and have received justice. Thank you from the bottom of my heart.
Needless to say, her letter made my day. It reminded me why I love what I do. The woman who wrote it clearly felt she’d been given the opportunity to be heard. Moreover, the process worked in another very important way. It gave her a genuine sense of closure.
I’d call this an absolute Win/Win resolution, and I love being part of mediations with this kind of outcome. In the past, I’ve written about the importance of listening, and techniques for being an effective listener during mediations. I’ve said it before: Listening is at the heart of what good attorneys do during mediations.
All of which is why this one piece of advice is also worth repeating: Never underestimate the importance of giving your clients the opportunity to be heard.
Enjoy the journey.
