by Christina L. Scott, J.D.
I once heard an attorney in a mediation say, “I feel like I’m losing.” Many thoughts flashed through my brain in a matter of seconds. My simple response was reminding counsel that it was not her case and so long as the parties agree, they could decide to settle the case however they desired.
Sometimes, it is easy for good attorneys to be caught up in “feelings” during mediation. After all, attorneys are advocates and are highly motivated by winning! Mediation, however, is not about the win but about the resolution and self-determination of the parties. The process works best when the parties come to mediation with the mindset to compromise and collaborate rather than to fight and litigate.
Mediation works great when parties and their attorneys come prepared to move towards settlement and not away from it. If the intent is to be difficult, combative, prove a point, or to aggravate the opposing side, mediation won’t work. There are no score cards or trophies in mediation, only agreements. Focus on the resolution rather than the “win” and your time in mediation will be well spent.
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