Knowing what you don’t know, thinking about mediation versus legal resolution of disputes
Nov 7, 2017 | By: Koven Mediation
The Law focuses on the past, Mediation focuses on the Future
The challenge so many of us face when we are engaged in a conflict is the lack of clarity about the future. A co founder leaving a start up does not know if the business she is leaving will ultimately thrive or fail. In five or ten years the decision to leave may feel catastrophic, or prescient. A parent thinking about child custody for a five year old cannot even imagine what that child will be like as a teenager. The adorable kindergartener may be a rebellious teen, or a hard driving athlete or performer who constantly needs to be shuttled to time consuming and expensive commitments. Legal resolution of these issues usually involves gathering the information available today and making a decision using that information within the parameters of the legal structure. Decisions are made based on what we know. In mediation there is a second step.
Anything is Possible in the Future
It does matter to talk about what has happened, and what we believe we know today, but ultimately the past is behind us and the real priority is the future. What we really care about is what will be, and that is what we don’t know. Thinking about what will be requires imagination and bravery. Exploring the various possibilities of what might be allows parties to think about their current conflict in a much broader context. When you are in the middle of a conflict, it is easy to see the other party as cruel or dishonest. It is hard to imagine that you once chose that person to be a partner, whether in business or life. It is also hard to imagine that you may need, or want, to partner with them in the future. And yet, in the situation of the co founder, it is possible that professional paths will cross, or even that future collaboration may be beneficial. More obviously, parents proceeding with a divorce are inextricably linked and will be engaged as partners in raising their child, or children, for many years. Certainly in both cases some decisions need to be made right now, but thinking about the future, and what we don’t know, can allow for more flexibility to enter the conversation.
Focusing on the Future Reveals Solutions
Mediation provides the setting to work through the conflict parties are facing today, while also recognizing that we don’t know what is next. Talking about the future may initially feel scary, or even depressing, but ultimately parties begin to feel optimistic and excited. As a lawyer I often felt the focus was on “getting it done” or “getting it over with,” as a mediator I think my job is to assist parties as they move through a conflict towards a better future. We don’t know what that future holds, but it is inspiring to think what it could be; a focus on the future can reveal solutions that are not apparent otherwise. As a lawyer I was trained to gather as much information as possible, focusing on facts and the relevant law. I greatly appreciate that legal training, and it is still important to me, but as a mediator I now embrace that there is so much I don’t, and cannot, know. Recognizing that the future is unknown to everyone allows parties to align and move towards solutions together.