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Thursday, May 19, 2016

Think Ahead and Prevent Conflict! Mediation as a Planning Tool

Post by Julie Tolek*

Mediation is often referred to as “facilitated negotiation” or a form of voluntary dispute or conflict resolution. Using these terms to describe mediation automatically brings to mind scenarios where couples are fighting over a problem or situation that has already happened. But what if we turned that process around and reversed it?

What if we mediated a plan before something bad happens?

Using mediation as a planning tool to help facilitate negotiation and communication before something bad happens can be equally as valuable (and sometimes even more so) than applying mediation to solve a current problem. After something bad happens, emotions are usually raging, parties are sensitive, often angry, and sometimes even vindictive. If you have ever tried to solve a problem (or even have a conversation) with someone who is in a bad mood or having a bad day, you already know it’s like talking to a wall.

Now imagine if you try to plan for potential issues before they happen, when people are excited and in a good mood, have a positive state of mind and not stressed with the burden of a “problem” to solve. The conversation is much more likely to be productive and open to anticipating future problems and creating a plan for solving them.

You may be saying, well what the hell are we planning for anyway? 

I am talking about using mediation as a planning tool for things like prenups, family estate or elder planning, business succession, etc.; issues where the nature of the topic is one of planning for the future BUT the typical execution of the planning process is usually with two or more people starting on opposite sides of the table, instead of on the same side.

How does mediation help in a “pre-problem” planning process? 

Keeping the common goal in mind is probably the most important theme in all of the benefits of mediation – everything comes back to the parties’ common goal(s). When things are murky or buried in garbage of resentments, remembering the common goal is always a good way to reboot. The benefits I have listed below all support the process of maintaining and understanding a common goal in planning. 

Benefits of using mediation for planning:

1. Filter out the BS:  Mediation in general allows for parties to keep in mind a common goal and come back to that whenever they get stuck. Sometimes details are important, but there is a time and place for everything. In the middle of a heated argument, details such as who took the family dog for the weekend can seem like the end of humanity if not solved. Parties may dwell on this one issue and cause the problem solving process to come to a full stop. The real issue may not be who took the dog for the weekend but that one person feels left out of the decision making process and thus harbors a resentment for the entire situation, and then uses the dog as an outlet for those feelings.

When given the opportunity to mediate a schedule for the dog before the issue of who took the dog arises, an actual plan with a schedule is more likely to emerge. This happens because the parties are not at the point where they are harboring vindictive or other emotional baggage that might get in the way of the actual goal, which is planning for the dog’s weekend schedule. By planning before hand, they can stay focused on the goal and more easily come up with a solution.

2. Empowerment. Using mediation as a planning tool allows the parties to take control of their own situation and address issues before they happen, allowing them to steer the process in the direction they want. The feeling of being in control is naturally empowering. People who are empowered maintain a confidence in their decision making, which can lead to better strategic decision making and planning, without other emotional garbage to blur the process.

3. Emphasis of being a team. By coming together to discuss a plan for the future, parties can work together toward a common goal, instead of coming at it from opposite sides. A feeling of cohesion and that parties are “in it together” leads to a more comfortable, productive, and even exciting planning process. Prenups and estate plans are definitely not the most romantic or exhilarating things to talk about, but knowing that you have someone on your side, planning with you and having open discussions, it becomes easier to do. 

4. Mediation is voluntary: Because mediation is a voluntary process, the mere fact that parties are interested and actually want to enter into a mediation setting shows a lot about the mindset of the participants in relation to problem solving: they probably already believe in and exhibit the desire to keep common goals in mind, want to work as a team, and are empowered to do so. 

5. Clearing up confusion or ambiguity: Mediating a plan for the future allows parties to ask questions and get clarity through thoughtful discussion rather than intense arguments after the fact. By clearing up ambiguities and asking and answering questions during the planning process, the result will be a better and more accurate plan of their intent. Being able to ask and answer questions will also bolster the feeling of teamwork and keeping common goals in mind, and create a better understanding of the plan over all and of each person’s individual concerns as well.

6. You can still get advice from an attorney at any time. During any mediation process, there is always an opportunity to have an attorney involved to give advice on individual interests and address legal issues that might not be answered through mediation. This again empowers parties to be their own best advocates first and foremost. 

Mediation is well known as a powerful tool to solve conflict and problems after they happen, but it often gets ignored as a pre-conflict planning tool. Many of the same benefits apply in either situation, but by using mediation to plan before a situation arises, you can reap the benefits ahead of time by making sure you and whomever you are planning with are on the same page, continuing to be empowered to create your own plan together, keeping and creating common goals, and creating a cohesive plan that lasts.

*Julie is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

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