In the world of court-based mediation, particularly in the civil business and employment sectors, the concept of mediation has been restricted by a belief that people agree to settle only when under pressure to do so. This either occurs right before trial, or at the end of a day of a preordained 8-10 hours of a mediation session. On rare occasions, parties even wait until the jury is deliberating.
The idea that mediation occurs in a limited period of time, either shortly before trial or only after extensive discovery, is formed by a belief that parties only want to settle when forced to do so by time. This belief ignores the ability of mediation to be conducted over a period of time when parties in dispute can address not only their factual issues, but also their emotional issues, their informational issues (or their lack of information), and the influences of forces beyond their control (governmental restrictions, third party interference, lack of resources).
The most basic form of this belief is that people begin to settle disputes when they see the clock running out. It’s two days before trial. The jury is going to come back and we should settle before they decide. It’s 4:45 p.m. and I have to pick up the kids at 5: 30.
These pressures are artificial and frequently lead to only temporary or unsatisfying resolutions. Stepping back and reflecting on the other party’s view, on the variety of choices available, on the avenues not yet pursued, can allow parties to embrace resolutions and avoid buyer’s remorse, but cannot be accomplished at the last minute.
We have learned, having been forced by current circumstances to come together and mediate on-line, that mediations can productively occur in pieces, that the parties don’t have to always be together: A joint session here, individual discussions there, exchanges of secured texts to convey different ideas as food for thought between the mediator and the attorneys or parties. Using Online Dispute Resolution (ODR), the mediator can create the connection between the parties where the parties have been unable to do so alone. Spending time sitting around and waiting can be reduced or eliminated.
Allowing your concept of mediation to expand and embrace the variety of forms of communications available with ODR can allow you to resolve business and employment disputes before they go too far, often before they go to court, in a more efficient and productive manner, even in the most challenging of environmental circumstances.
The mediators and arbitrators at Paule, Camazine & Blumenthal, P.C. can help you expand your concepts of mediation with ODR and find better ways forward. Give us a call.