Judgment is a winner and a loser. The loser, disappointed by the judge’s decision, is not convinced that he was wrong: he did not really have the opportunity to explain himself to the judge and to express everything he has to say on this case; if he has lost, it is the fault of the lawyers, or he is a victim of the legal area, or it is only part of the delivery and we will see well on appeal! In any case, you have to take revenge on the other by doing even worse on another point.
I remember this big computer manufacturer who had, if I may say so, the misfortune to win a lawsuit against a big client, one of the main French banks: he did not sell any more computer to this client for thirty years, the time that the teams of managers renew themselves and that the business is forgotten. He was, in fact, especially wrong to be right against his client,
Is the winner of the trial satisfied? Admittedly, there was no question of allowing oneself to be done, and it was necessary to defend oneself well. But the victory often leaves a bitter taste, because if we have won on the precise point of litigation brought to the arbitration of the judge, we know that we have not won on the whole relationship we have with the other, and that all the other points that make up this relationship will now become more difficult to manage.
Indeed, the big loser of the lawsuit is the relationship between the parties. And if it is a divorce with imposed judgment, the biggest losers are children, and unless post-judgment mediation, they will remain losers for many years.
But let’s go back to mediation.
The whole first part of the mediation will bring each of the parties back to the reality of a human relationship in which the other also exists. Of course, to want to start looking at each other’s point of view, you must first have been heard and understood yourself, have been able to empty your bag and have defended your honor. This is the art of the Mediators Merseyside and the great strength of the mediation process:
Ensure that each party is recognized, to invite them to agree on mutual recognition.
Let everyone understand that for the other, from his point of view, things may have been different from what they are for themselves.
Understanding does not mean agreeing, and understanding the other does not mean giving up one’s honor or interest, quite the contrary: all negotiators know that the best way to negotiate one’s own interests is to to interest in the other’s point of view.
We are at the turning point of mediation. Everyone understood that his ready-made solution was an illusion because the reality is more complicated than he had convinced himself to believe in the energy of the conflict: the other exists and it will be necessary to take it into account if one wants build a real solution, solid and sustainable. We had two solutions, and we both lost them: we are now, at this moment of mediation, without solution.
It is uncomfortable, sometimes even distressing, but the mediator, far from being alarmed, is satisfied to have reached this stage: since there is no longer a ready-made solution, we will now be able, together, to build one, which will be a common solution.