Five Ways to Get More from Your Mediations

• Citation: Vol. 50 No. 2
• Publication year: 2024

Five Ways to Get More From Your Mediations Vol. 50 No. 2 Pg. 31 Vermont Bar Journal July 2024

by David Boyd, Esq.

Five Ways to Get More From Your Mediations

1. Think broadly about interests, not just legal positions

In most cases, litigation is a binary process that produces a winner and a loser. Many advocates think of settlement negotiations the same way. But this view is far too narrow. It is much easier to settle a case if you can create value before trying to claim value.

For example, in an easement dispute that could go either way, a proposal that the parties split the difference between their positions may make sense from a legal perspective. But a proposal focused on the interests of the parties - a broader and more usable easement for the plaintiff in exchange for a land swap to allow the defendant to expand their garage - could create substantial value for both parties. Mediation lets parties create value by going beyond the outcomes litigation can offer, but only if the parties, and their counsel, think broadly about their interests and not just what they could win or lose in court.

2. Empower clients

Empowering clients to participate in a mediation can unlock tremendous value. First, research shows that having an opportunity to be heard and understood goes a long way towards resolving disputes.^[1] If your client cannot share their experience, they may find it very difficult to move forward.

Second, parties to a conflict come to a mediation carrying the experience and negativity of that conflict. A growing body of research shows that how people feel directly impacts their flexibility, creativity, and performance. People primed to feel amusement or contentment, for example, can think of a larger and wider array of thoughts and ideas than individuals primed...