Interest-based negotiation is such an important part of problem-solving. Too often people get locked up in positions and fail to ask the key question(s) that would reveal the underlying interests. But how do we get to those interests? Not in litigation. Once you engage in warfare, there will be a winner and a loser or there will be two losers. Moreover, lots of people in war end up out of money to fund the war and must “settle.” That is defeat in war and that is not the way to walk away from your conflict. Mediation is not about “settling” as it is about getting your interests satisfied. Without sounding corny, the win-win comes from two people walking away satisfied.
Facilitators like us help people see the underlying interests when it is too hard for them to do it themselves. We uncover interests because those are the springboard which then allows us to provide options that work toward resolution. People are literally transformed in our office when interests are uncovered because never dream they can have anything in common with the other party let alone work out a resolution that relates to common goals. It gives relationships new energy and the people a new place to start.
Yet, we still battle the mindset that investing in mediation is “too much money” and especially when it comes to early mediation, people usually invest in a lawyer rather than use that money toward facilitation. All I can do is reiterate the hard facts:
Fact #1 – you will spend so much more money on a lawyer with a much less real chance of a good resolution
Fact#2 – you will endure tons more stress and use up a lot of time, energy, and money inventing about your litigation, the awful situation you are in, what the other party is doing tactics-wise, and responding/retaliating to the other’s allegations. Your life will become consumed with the negativity that is litigation.
Fact #3 – any relationship you had with the other person is going to only get worse and more damaged.
Fact#4 – if there are any collateral parties to the case, i.e. coworkers, kids, etc. – they will suffer A LOT and for a long time. Not only can your relationship with these third parties be damaged permanently but the stress on these relationships is brutal.
Fact #5 – after spending a lot more money than you ever dreamed of, you will most likely try and mediate at that point – in crisis – when, in many cases, it either 1) takes a lot more mediation sessions to get past all the damage built up through the litigation and hence a lot more money on top of what you have already paid your lawyer or 2) you mediate one time and it does not work because things have become so ugly or 3) your lawyer chooses a mediator friend who spends zero time trying to work on a resolution and all his/her time working for your lawyer which usually does not solve anything or 4) you forego mediation completely because there is no way you are sitting in a room with that other party.
Furthermore, paying the up-front retainer for an attorney which is usually at least $1500 and probably more like $2500 and up, gives you nothing in return but a person who says they will fight. You then continue to pay more money toward the high risk of hoping to get all of what you want. For most people, by the time it is all said and done they have paid thousands and thousands either to throw up the white flag because they are out of money or to get some of what they wanted in some sort of compromise. And on top of that, they are left feeling exhausted, defeated, and usually on negative terms with the other party. That is a bad deal.
With mediation, for a much-reduced cost you give yourself not only much better odds at partial or total resolution immediately but you also purchase information which is power. At Sanchez and Baietto mediation runs $250.00 per hour usually split between the parties. An average mediation is around two three hours. For that money, you receive skilled problem solving from two professionals who will narrow and better frame the issues, help you understand your real interests and the other party’s real interests, provide creative options to satisfy both parties’ interests, help the parties negotiate properly and provide an unbiased case evaluation to give the parties an understanding of what the court process will mean in their specific situation. This does not count the much greater probability that some or all of the conflict will be resolved.
In most cases we have seen, people have paid out $250 – $700 and resolved the case completely. Done deal. Or, and this is the less seen scenario, you resolved part of the case and are left to fight over one or two issues in which all parties have a good understanding as to how it will play out in court because they have received information and have been through a process of negotiation and case evaluation that gives them more than some pipe dream about what is going to happen. You now go into litigation, if you so choose, knowing how much energy this will sap, what is the core issue and what evidence is needed, and what the court might say about the evidence. Isn’t that better than paying $1500 – $2500 down and more as time goes by only for the blind hope that you will win this big legal fight somewhere down the road which statistics say most likely will not happen? Then if you settle after you have paid $4,000 for the same deal you could have chosen to make for $700 – how will that make you feel? Settling leaves a bad taste in the mouth, choosing a deal empowers you. That is a big mental difference and do not discount it. Moreover, those parties in mediation that leave an issue or two unsettled usually end up back in our office to resolve them in one or two hours. That may add another $250.00 to your bill for a total still about $1,000 or less. Nor does this analysis factor in the time, stress, anxiety, and discord to you and to other people involved such as your kids!
So try the low-risk, low-cost, giant payoff option called mediation. It only makes cents!