COMPETITIVE DISPUTANTS AND ATTORNEYS

Over the years I’ve listened to several people tell me why they will never mediate disputes.

 Once a prominent and wealthy business owner refused to mediate any dispute or litigation. He tells me that mediation is for “weaklings” and, by implication, he is not weak. He says agreeing to mediate is simply a message that his case isn’t strong. He would rather spend months and years and any amount of money pursuing litigation in an attempt to win. If he is forced into court referred mediation, he complies, but refuses to settle. His strategy of simply outlasting and outspending most adversaries, he believes, is usually successful. He contends, if an adversary continues the dispute, they are usually able to get a settlement “on the courthouse steps.” He tells me he doesn’t see much use for mediators. What is his logic? I think it is his estimation of his own power and resources.

One attorney strongly advises his client not to mediate. If pressed he will argue that he would only recommend mediation if he can get the “right mediator” and by that he means a mediator who he believes is predisposed to view the dispute in his way. I would guess that mediators he used in the past would be most upset to hear his words since neutrality and impartiality are the fundamental ethical standards for mediation. His statement, like the business owner’s, shows ignorance and disrespect for the process. Rather than mediate, he advises his clients to support his lengthy and expensive negotiation with adversaries and, if not successful, uses that as evidence that mediation would not have been successful and litigation is now the only option. What is this attorney’s logic? Again, I believe it is his estimation of his own competence and his client’s resources.

Both the business owner and attorney in these two examples are fine with spending dollars and time to exercise their power at the expense of rebuilding a relationship with their adversaries. Both don’t acknowledge there is significant cost in destroying a relationship and a loss of synergetic power than can come from rebuilding one instead. Both find it more important to demonstrate power and attempt to win the immediate battle.