The Elusive Happy Ending

Mediation is a remarkable tool for resolving disputes. Very few cases in North Carolina are tried to juries anymore, in large part because the mediation process is so effective.

I was recently in a restaurant that prominently displayed this sign: “NO we don’t have WiFi. Talk to each other.” Many times disputes erupt or are exacerbated because folks refuse to talk to each other. Mediation forces a conversation – often a difficult conversation, but it has the ability to lay bare feelings and positions that the parties often prefer to remain hidden for a variety of reasons.

Parties often begin a mediation more interested in “winning” or inflicting pain on the other side than finding a resolution. When I mediate a case, I often tell litigants at the outset that if they expect to leave the building happy, they are probably going to be disappointed. My goal as a mediator is not to make anyone happy. It is to find a solution to a problem that the parties can live with – and that almost always means they won’t be particularly happy at the end of the day.

Compromise seems to be a dirty word these days, but it is fundamentally important in almost every business context. Mediation is a communal process. An effective mediator can open up communication between and among people who might not want to communicate, but it is the only path towards any compromise. Indeed, in cases where long-standing relationships have been disrupted through a disagreement, the mediation process can sometimes help start the process of mending those relationships, but I digress.

If the parties in a mediation obtain a result they can live with, and we can put an end to the time, money, and stress of an ongoing lawsuit, that is a win – even though it may not feel like it to the litigants at the time. As litigators, we should make sure our clients see that big picture, and don’t get lost in the emotional jungle of anger, hurt, or insult. Those emotions create obstacles to resolution. We can help our clients move beyond those obstacles to achieve the bigger goal of resolving their disputes, so they can get on with their lives, and one way of doing that is making sure their expectations are realistic. One of my favorite mediators tells folks that his job is to help folks have difficult conversations. He’s exactly right. Those conversations probably won’t bring them happiness, but by ending the litigation, we give them the opportunity to go find it on their own.

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