I joined the mediation team at a new-to-us JP court in Tarrant County this last Monday, where it was the judge’s first time to offer a pre-trial setting for possible mediation. Out of ten cases, two decided to try mediation. One was assigned to me, which did not settle, it resulted in an impasse.
This sometimes happens. It’s the mediator’s job to sit with both parties and listen to their story. It’s not two sides to every story – it’s two different stories. Our job is to facilitate dialogue in hopes that both parties can reach an agreement that both sides can live with.
A judge’s job is to apply the law, and in most cases the outcome is “zero-sum,” meaning there is a “winner” and a “loser.”
This is where mediation differs, as a mediator is there to help all sides find a path to reach a Mediated Settlement Agreement (MSA). A mediator is strictly a neutral third person and places no judgement on any side. It’s up to the parties involved to offer options and find solutions they can both agree on, or to declare an impasse if they can’t find any common ground.
Some cases involve parties that may have too much “emotion” or “principle” held in their arguments to allow them to find a way to meet somewhere in the middle. Sometimes a mediation impasse is the outcome, and these cases are usually sent back to the judge to make a decision.
We approach every mediation with the desire that it will settle, but we also know it’s up to the parties involved, not us, to do so. We’ve been known to pause mediations if the discussion gets too heated, to allow everyone time to cool down and try again. When we leave a mediation table at an impasse, we still encourage both parties to continue to talk and maybe try to reach a settlement before their case goes to court. Fairly often in these cases, we have both parties thanking us for listening and understanding their stories, or apologizing that they couldn’t work out a settlement.
One of the courts we provide mediation services for has a judge who encourages their cases to try mediation, because they’ve seen how it helps reduce stress and costs for everyone, and helps clear their own dockets. Last week, this judge shared some words of wisdom: “The reason you come to court is because there’s a failure to communicate.” Yes, a Cool Hand Luke reference. When they said it, they looked at the jury box where we mediators were sitting and gave us a wink and a smile; this judge likes to crack jokes to help set folks at ease.
Mediation is one way to help facilitate communication and move through the emotions or principles of a disagreement to find a common ground solution.
This week, we head to this new court to attempt mediations for the next round of civil suits.
We’re proud of the mediation work we do. We are Peacemakers.
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