What makes or breaks a successful mediation? Your mindset; that is, how you approach it. Like athletes before an event, one must “visualise” the process of mediation and its successful outcome. Create a mental (if not actual) checklist of the pertinent facts and issues and think about alternative ways to resolve each issue. Become mentally primed for mediation before you even walk in the door. One of my colleagues likens mediation to a chess game: think about the moves you want to make and the alternatives.
Mediation is a process. It takes time and the active involvement of each party. Walk in with a positive attitude; “we will resolve this!” Remember, the old adage: “where there is a will, there is a way!” Do not go in with a closed mind but, to the contrary keep a very open mind. Be willing to explore options and even consider ones that at first may seem “off the wall”. Those “off the wall” options may lead or brainstorm to other options that are more workable. One trainer once told me that there are two parts to our brains; the brainstorming part and the analytical part. The trainer suggested that in order to come up with solutions, we need to simply brainstorm, turning off our critical thinking part until we are finished brainstorming. Then and only then, do we start to analyse or critique the ideas we just came up with. While this sounds simplistic, if not corny, it actually works; brainstorm first, and then analyse!
One key to remember is that each party does live with the results of the mediation. So, while you may have others attending the mediation with you and/or advising you, it is your dispute. You are the one who must live with the results. Make sure you can do so.
Consequently, consider only realistic options. Do not take extreme or outrageous positions as they will only hinder the mediation process, not enhance it. Mediation should be viewed as a “win-win” process, not as a zero-sum game (“I win, you lose”). This is accomplished only by being realistic in your expectations and in your demands.
In sum, don’t simply demand on a “take it or leave it” or “all or nothing” basis; negotiate, be willing to compromise and to put time and effort into the process. Mediation is an old fashioned process amidst our world of fast moving, rapid (if not immediate) results technology. We may be able to send an e-mail around the world in nanoseconds but mediation is antiquated. It takes time – often lots of it. Be patient. It is a psychological, mental and emotional process through which each participant must travel by giving and taking and compromising. Much of it is psychological: each party must come to believe that s/he has “earned” the result attained and this can be done only by the process of “give and take” (i.e., the negotiation “dance”). It is often said that a “good” settlement is a compromise in which one party believes s/he has not received enough and the opposing party believes s/he has given too much. But, the key is that both parties have compromised and not stuck hard and fast or rock solid to their respective positions. Each has taken the time and made the effort to see the dispute from the other party’s perspective and with that new view in mind, compromises so that each “wins” a little in the settlement.
Mediation can be likened to a chess game-think about the moves you want to make and the alternatives.