Philip Mediation now offers "pay as you go" mediations to parties not represented by attorneys. This is a great option for those who may not be familiar with mediation as a dispute resolution tool, and want to learn more about it before committing to a full mediation session.

Parties attend a free 30-minute joint consultation, during which the mediation process is explained and parties are given an opportunity to ask questions. In the event that the parties choose to proceed with mediation to attempt to resolve their dispute, the mediation session occurs immediately following the consultation, and parties are charged only for time actually used.

"Most people do not listen with the intent to understand; they listen with the intent to reply." (Stephen R. Covey, The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change.)

The concept underlying this quote has been known to mediators for a long time. One of my primary goals as a dispute resolution professional is always to listen with the intent to understand. This does not mean that I necessarily agree with everything I hear; understanding and agreement, after all, are often two very different things. But only by understanding what someone is saying - and why they are saying it - can I assist them in moving towards a resolution that meets their interests, satisfies their needs, and is ultimately acceptable to everyone involved.

Several years ago, I handled the defense of an employment discrimination case for a large corporate client. The client had been happy with my work on previous cases, and transferred the case to me just a couple of months before trial, with a large amount of work still remaining to be done. The attorney who had handled the case before me was glad to get it off his desk, and I soon found out why. 

The plaintiffs' demands were outrageous (tens of millions of dollars), and the case was postponed several times as they hired one lawyer after another to represent them. Despite multiple attempts to resolve the case in mediation, the plaintiffs seemed wholly unwilling to consider an out-of-court settlement. I successfully petitioned the court to dismiss the majority of the plaintiffs' claims, and the remainder of the case finally went to trial almost two years later, after almost weekly air travel to attend hearings, depositions, meetings, and mediation sessions.

After a two-week trial, once all the evidence was in and the plaintiffs had compared my client, my co-counsel and me to dictators and terrorists from the witness stand, the jury returned a defense verdict. The plaintiffs subsequently appealed the verdict, and the Court of Appeals affirmed the decision in my client's favor.

As a trial lawyer, the outcome was a resounding success. As a mediator, I look back at it and wonder whether there was a way in which the case could have been resolved before trial, thereby saving both my client and the plaintiffs significant amounts of time, money, and emotional energy. I firmly believe that all cases can benefit from mediation, moving the parties closer together by providing each party some perspective regarding their own needs, the needs of the other party, and the potential realities of continued litigation.

Sometimes, however, a party is so emotionally invested in a case - or so indignant at the opposing party's demands or offers - that they are unable or unwilling to see any validity in the other side’s arguments, and cannot negotiate in good faith. This was one such case. The plaintiffs’ needs boiled down to “vindication”, which they were convinced they could achieve only through their day in court. They got their day in court, but it was quite the opposite of the vindication that they had hoped for.

This particular case may indeed not have been amendable to a mediated resolution. However, it will always serve to remind me that emotional and other non-monetary needs can be as important to the parties as financial ones, and can provide very real barriers to a mediated settlement. Where such needs exist, it is critical for the attorneys and the mediator to work together to uncover and address them if a mediation is to have any chance of succeeding.