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| What happens in Mediation |
As a mediator, Larry or Marcy is hired by both parties to a dispute. One of us serves as a third-party neutral
helping the parties resolve challenging differences. In keeping with the Through Understanding philosophy, we
facilitate discussion aimed primarily toward advancing mutual recognition and secondarily toward generating
viable, creative solutions to the underlying issues. In practice, what this means is that we first try to help people
understand each other's perspective. Then, when some level of understanding is restored, we help them find
solutions that meet both of their needs. Throughout the mediation, we offer our clients help/training in navigating
challenging communication. In the end, clients find viable, mutually beneficial solutions, see each other again as
human beings, and are better prepared to manage disputes in the future.
We group mediation styles into two large camps. The first is what we call "entitlement-based" mediation. In this
very common form, clients seek to emulate, to the extent possible, the substantive results of litigation. Here, legal
representation is normally critical because each side makes legal arguments in attempt to convince the other that
they are in the legal right (or that they would prevail in court). This form of mediation, which employs, either
subtly or directly, legal threat and intimidation, does not typically help the parties resolve anger and bitterness,
but rather, like in court, tends to exacerbate division. Nonetheless, when successful, at the least, clients avoid the
financial costs (and some of the emotional costs) of litigation.
The second type of approach we call "needs-based" mediation. Here, rather than try to emulate what might
happen in front of a judge, clients instead seek to find their own solution. First, they investigate each other's
needs (goals). Once they reach an adequate level of understanding of what the other wants out of the situation,
they then they work together to find strategies which will work for both of them. This form of mediation -- which
uses understanding as a means toward resolution -- promises both to ease the personal conflict and yield
solutions that creatively serve both parties. This approach is not typically practiced by attorney-mediators
because, first, as attorneys, most have an attachment to the "law," and second, most are inexperienced in, and
uncomfortable with, an approach which seeks to foster understanding. But it is this approach which we have
found opens up limitless possibilities for clients.
In our experience, where the clients will have some relationship beyond the conclusion of the legal matter,
needs-based mediation is far superior to entitlement-based mediation. Not only does it free clients to find
creative solutions but it promises to ease the hostility which may have plagued their lives for too many years.
helping the parties resolve challenging differences. In keeping with the Through Understanding philosophy, we
facilitate discussion aimed primarily toward advancing mutual recognition and secondarily toward generating
viable, creative solutions to the underlying issues. In practice, what this means is that we first try to help people
understand each other's perspective. Then, when some level of understanding is restored, we help them find
solutions that meet both of their needs. Throughout the mediation, we offer our clients help/training in navigating
challenging communication. In the end, clients find viable, mutually beneficial solutions, see each other again as
human beings, and are better prepared to manage disputes in the future.
We group mediation styles into two large camps. The first is what we call "entitlement-based" mediation. In this
very common form, clients seek to emulate, to the extent possible, the substantive results of litigation. Here, legal
representation is normally critical because each side makes legal arguments in attempt to convince the other that
they are in the legal right (or that they would prevail in court). This form of mediation, which employs, either
subtly or directly, legal threat and intimidation, does not typically help the parties resolve anger and bitterness,
but rather, like in court, tends to exacerbate division. Nonetheless, when successful, at the least, clients avoid the
financial costs (and some of the emotional costs) of litigation.
The second type of approach we call "needs-based" mediation. Here, rather than try to emulate what might
happen in front of a judge, clients instead seek to find their own solution. First, they investigate each other's
needs (goals). Once they reach an adequate level of understanding of what the other wants out of the situation,
they then they work together to find strategies which will work for both of them. This form of mediation -- which
uses understanding as a means toward resolution -- promises both to ease the personal conflict and yield
solutions that creatively serve both parties. This approach is not typically practiced by attorney-mediators
because, first, as attorneys, most have an attachment to the "law," and second, most are inexperienced in, and
uncomfortable with, an approach which seeks to foster understanding. But it is this approach which we have
found opens up limitless possibilities for clients.
In our experience, where the clients will have some relationship beyond the conclusion of the legal matter,
needs-based mediation is far superior to entitlement-based mediation. Not only does it free clients to find
creative solutions but it promises to ease the hostility which may have plagued their lives for too many years.
| Offices in San Francisco, Oakland and Walnut Creek 415.356.9834 |
| Resolving Conflict through Understanding |
| Types of Mediation |
is there any rational alternative?
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