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The Psychology of Mediation

Understanding the Psychology of Mediation, You May Not, But Should

Over the last several years, civil mediation has ‘caught on’ and has become the way almost all state-court legal disputes that would have been decided by a jury are now settled.

A large number of cases that would ordinarily be decided by an Indiana trial court judge are also resolved in mediation under the watchful guidance of judges in the case and the attorneys that practice before them.

At a basic level, Ciyou & Dixon, P.C. attorneys observe most litigants have a general idea of what mediation is all about and desire it–a chance to resolve the case sooner with a better outcome that they are in control of.

Broadly, this is a good description of the purpose of mediation. Yet we observe most participants do not understand the psychology of mediation. You should. We hope this post helps.

Think psychology is not in law or mediation. Think again. And embrace it.

Take an example, very few of us would buy a car or house without negotiating (bargaining) for some discount or added value. The reason is fairly simple–there is a societal expectation that price is inflated.

And buyers and sellers have different needs and desires at different times pushing the “price” up or down along unknown and invisible lines, despite the near transparency about the cost any “unit” is purchased and sold at and fact there is significant similarities or identical qualities.

In the world of civil litigation, there is the same expectation that at least in terms of dollars and cents. On top of this, every case is unique from the other and there is a vast unknown range many times.

This rooted in the human psyche and we all want, expect, or at least hope for, the most money for the case–our special case–that has ever been given. At a trial this might occur, but even this is BIG MIGHT HAPPEN.

At mediation, it will not happen. Mediation is premised on each side getting an okay or tolerable or less bad outcome. This is the first part of the psychology to mediation and the bottom line. Think not?

Ask any person who has ever had a legal dispute handled through completion and see if he or she thinks it is fair and they were compensated. The answer is perhaps the one thing everyone in our litigious society can agree upon–No!

In fact, unlike most other professions, legal matters are based on actual or potential conflict. Put simply, in a fight, everyone gets beat up. The second component confounds everyone. Let’s just cut to the chase and get to the bottom line and be done with it.

The problem is litigants and their lawyers, no matter how well prepared, do not know what it is. This sounds remarkable.

But consider this, if you and your attorney walked into the mediation advised the mediator, “we want $1,000,000 dollars,” and the other side agrees and sends a check back with the mediator in that amount, what would you think?

To a statistical certainty, you would think you didn’t ask for enough. And your attorney wouldn’t know what to think. Why? Because it doesn’t happen that way. Attorneys are careful and methodical. Human nature and expectations do it for litigants–wanting the most.

For this reason, even an efficient mediation with a skilled mediator, prepared advocates, and reasonable litigants takes a few hours at a minimum. Most last much longer in the process of testing the limits to find out the overlap between the two (2) or more parties.

Cases, unlike cars, and to some extent houses, have little in common one to the other, so the process is more complex and time consuming.

This limit is where the paying party will not pay a cent more and the party seeking compensation will not take any less. Even then, there is last minute jockeying. This is where a good mediation should get to, it is not fast or without pain or cost, but it is the process.

What do we mean by this? Not every aspect of every case can be resolved by money alone. A last minute “I’m sorry” in a personal dispute or business case might do the trick. To get to this point, it takes time. Be patient. Do not foreclose any consideration or possibility. This is the psychology of the bottom line.

This is mediation.

We hope this prepares you for your mediation. Ciyou & Dixon, P.C. advocates handle mediation and other forms in their cases and practice throughout the state.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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