Reasserting Control Through Mediation

One of the most rewarding parts of my mediation work is the opportunity to spend time with parties mired in the litigation process and talk about how they got there and what options they have for resolution.  One participant in a recent mediation wisely observed that litigation is like war and poverty:  all being characterized by a lack of control.

 The comparison is apt. Few caught in war have the choice of Frederic Henry in A Farewell to Arms, of rowing to refuge.  Few caught in poverty can Horatio Alger their way to prosperity.

 Litigation typically occurs when parties have lost control of a problem and have turned to the court system for help.  For litigants unfamiliar with a process governed by seemingly arbitrary court rules, deadlines and procedures, this represents a dystopian situation.  They are passengers in a car without brakes praying for a good outcome.

Mediation, while not perfect, does allow those caught in the litigation process to reassert control. They can choose to participate meaningfully in settlement negotiations or not.  They can determine each move as offers and counters are exchanged.  They can add settlement terms important to them as negotiations proceed.  And they can choose between continuing with the litigation process or ending it by crafting an acceptable outcome. 

 For many, mediation it is the most control the participants have experienced since the events that resulted in litigation, whether a personal injury, employment termination or disastrous business partnership. 

 Mediation affords the opportunity for self-extrication from a process controlled by others and decided by strangers.  It allows personal choice.  Unlike those caught in war zones or stuck in poverty, participants in the litigation process get a day of mediation to take charge of their destinies.

 And, that may be mediation’s most important role.