Mediation isn’t Mediation

A lot of folks don’t know that there is more than one form of mediation.  That includes a lot of lawyers.

To be clear, there’s mediation and then there’s mediation. They are as different as night and day.  Wished we used different words for them, but we don’t.  But there is a clear distinction. Here it is:

One form of mediation is an alternative to trial. The other is an alternative to litigation.

Mediation as an Alternative to Trial

A lawsuit is designed to get to a trial where a judge imposes his or her decision on the parties.  Anyone who’s been through a trial knows how difficult it can be.  Some 30 years ago early legal pioneers saw in mediation a valuable way to avoid trials.  So now, long after the lawsuit is started, after most of the lawyering is done and after all the legal discovery is complete, right before trial, the case is mediated.

This form of mediation is the endgame to litigation and is an integral part of it. Because litigation is based on coercion – you can be dragged into court – it is naturally  adversarial.  So the mediation that ends litigation is also naturally adversarial.

This is the form of mediation most lawyers know and are familiar with. Now mediation is a very common and accepted way of ending lawsuits.

Mediation as an Alternative to Litigation

Mediation that is designed from the start to reach an agreed resolution – one that all the parties agree to – is a comprehensive dispute resolution process.  It”s a complete replacement for litigation. This form of mediation is based on consensus – no one’s in it unless they voluntarily agree – so it is naturally collaborative.  Because it’s headed toward an solution where everyone agrees, the way they get there is also something they all agree on.

This is the form of mediation I practice.  It is not well-known among lawyers. There’s a reason for that.

The mediation I do has been developed largely outside the legal community. It was often practiced by people who saw the downsides to litigation and sometimes distrusted lawyers. So it developed as a complete and comprehensive alternative to litigation, often without the involvement of lawyers.  So lawyers are often not familiar with it, and if they are, they may be distrustful of it.

Most lawyers have not yet adopted mediation as a comprehensive dispute resolution process as an alternative to litigation.

Given that mediation was developed largely without lawyers, by people who often mistrusted them, and as an alternative to litigation, that’s not at all surprising.

But things are changing.

There is now emerging a new generation of legal pioneers. These lawyers want to do so much more for their clients than just sue people.  These lawyers want another tool in their lawyer’s toolbelt besides the just the litigation hammer.

These pioneers recognize that when people say they don’t want the cost and expense and pain of litigation, it doesn’t mean they don’t want legal advice. They see that they can provide dispute resolution beyond litigation.  They know that they can help their clients best by offering mediation as a comprehensive alternative to litigation.  These lawyers are representing clients and providing them with the legal advice they want without the lawsuit they don’t.

These are the lawyers I work with. These I are the lawyers I mediate with. If you’re one of these lawyers, or if you’d like to work with them, drop me a line or give me call.  Let’s talk about it.

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