Task #18: Do you believe that they might owe you something specifically?
Do you believe that they might owe you something specifically to restore or compensate for the betrayal, bad faith, or loss of confidence? The resolution of a dispute does not just occur on the day of the mediation. Each participant to mediation needs to prepare their own strategy for negotiation in the settlement. Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.
While many mediations come down to a money dance between the disputants, there are other things could be said or happen that would go a long way to resolving the dispute. This is one of the great advantages to using mediation to resolve a dispute. In the Courts, it is only money that can be used to make the parties whole.
Often the one thing that could be done to restore or compensate for the betrayal and bad faith is an apology by one of the parties. I have spent many hours in mediations working on apologies by one of the parties. We will work on the wording to make sure it is sincere enough and can be said with enough feeling that the receivers of the apology believe and can accept the apology. Some times both sides have apologized to each other.
Though hours are spent on the apology, few are repeated outside of the mediation. Occasionally, they might be embedding into the final settlement agreement. Even then there might be a confidentiality clause included in that agreement.
It is not only apologies that are done within mediation. Recently, one party just wanted to speak their mind and just wanted the other party to listen. In this mediation, we again spent time working on what would be said, how it would be said, the expected responses of the other party. We even set a time limit on the speaking and any potential response. Both sides did not want anything said that would inflame the situation. It was quite successful. No one used their entire time allotment and we proceeded to a complete settlement of the dispute.
As always, sometimes it is just a fixed amount of money that will restore some good faith and remove the feeling of betrayal. Though I have found that if this is coupled with an apology, the amount of money required is greatly reduced.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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