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.

According to a widely told story, Minneapolis family law attorney Stu Webb, after some 26 years of practice, came up with a radical idea against the established grain.

In a particularly difficult divorce case he decided to work with the opposing attorney. He proposed sharing information and if the two could not reach agreement, he would not bring the case to court. Webb called the concept of a separate settlement counsel who would not litigate cases as “collaborative law.” As the model developed, cooperating attorneys and their clients began to bring in other professionals, such as financial advisers and mental health professionals, as needed.

The term has also become part of the discussion as to how the practice of lawyering is changing. This is led by Julie Macfarlane, Forrest Mosten, and others who see the future as attorneys who are, in the words of Michael Leathes, “solution and results-orientated, process-intolerant, favouring (and skilled in) negotiation, mediation, collaborative practice and restorative justice.” Widely respected practitioner Forrest (“Woody”) Mosten has been a strong advocate for family mediation and unbundled legal services where attorneys provide advice along with other appropriate professionals. Mosten has been a strong advocate for the paradigm shift that changes the power dynamic between lawyers and clients so the client takes more responsibility for problem-solving and decision-making, as well as for mediators to be part of the collaborative divorce process.

Many family law groups offer the collaborative approach, but its use for other civil matters has been limited. Some types of cases that have benefitted from collaborative law include disputes between business partners, construction, wills and estates, and other kinds of family law cases.  As collaborative law evolves, the role of mediation in the process is evolving as well, but at base, parties in a collaborative case can bring in a mediator to assist in the negotiations.

No laws need to be enacted to advance collaborative law. Attorneys can utilize any dispute resolution process. The only change necessary is for attorneys to set directive adversarial approaches aside for an approach that emphasizes relationships over winning.