The people who get what they need out of a mediation are the ones who can acknowledge that they made a mistake that contributed to the dispute.
For example, I mediated a case between the founder and CEO of a design company, and a former employee. The former employee had been a salesperson, and she wanted to be paid commissions for some of the clients she’d helped get, to have expenses reimbursed, and to be paid for accrued vacation days.
But they weren’t progressing towards a resolution, until the founder/CEO acknowledged that her company’s employment contract had been ambiguous about how vacation days were accrued and paid out. She agreed to pay the former employee for accrued vacation days. She also agreed to reimburse expenses, if the former employee would re-submit her expense reports.
In return, the former employee dropped her demand for commissions, because the employment contract was clear about those. She agreed that she hadn’t completely filled out her expense reports. Within about 10 minutes, they had an agreement that they were both happy with, and they could go on with their work and their lives.
Why does acknowledging mistakes help?
First, know that you don’t have to acknowledge the mistake in front of the other party or parties. You can benefit yourself if you do, as the founder/CEO did in my example, but you don’t have to.
Just acknowledging the mistake to yourself gives you reason to work towards an agreement. That’s because your sense of ethics includes that people and businesses should take responsibility for their actions, and make good if they make a mistake. The founder/CEO in my mediation realized that she should have been aware of the ambiguity in the employment contract, that she ultimately was responsible.
If you do acknowledge your mistake to the other party or parties, you almost certainly will be giving them something they want. That makes them more likely to be generous in return, which means the agreement you create in the mediation will be better for you.
If you’re concerned about possible liability, you can make sure that the agreement specifies the terms of confidentiality and privilege under which you’ll mediate. In Washington State where I practice, mediation communications are defined by law as being privileged; with a few well-defined exceptions, mediation communications cannot be used in judicial proceedings, arbitrations, or legislative hearings. Even if the laws of the state where you live are different, the agreement to mediate can include provisions for privilege and confidentiality.
Of course, that only means you have recourse if the other party violates confidentiality or privilege. If you’re concerned about that, just acknowledge the mistake to yourself.
Either way, use the mediation as an impetus to avoid the mistake in the future. When the founder/CEO of the design company received the former employee’s complaint, she had her attorney clarify the ambiguous points in the company’s employment contract.
The last I heard from the founder/CEO and the former employee, their agreement had been fulfilled and they were both happy with the outcome. The founder/CEO got what she needed out of the mediation because she acknowledged a mistake.