MECHANICS OF SUCCESSFUL MEDIATION
Mediation is a process that provides for the intervention of third-party neutral, who assists the contesting parties to reach an acceptable settlement by injecting reality, doubt and fear into the parties entrenched positions. It allows the parties to retain control, while permitting them the luxury of hearing the other party’s arguments and evidence without being exposed to a fact-finding determination that might be contrary to a party’s interest.
Goals of Mediation
- Fact Finding
- Negotiation
- Resolution
Stages of Mediation
Preliminary Arrangements (Mediator, Place, Date, Time and Fees)
- Insuring that all interested parties are notified.
- Proceeding at The Scheduled Mediation:
Opening Statements by All Parties
- Various Parties Caucus With Mediator
- Information Gathering
- Mediator’s Opening Comments
- Identification of issues
- Generation of options for resolution of the dispute
- Bargaining, Negotiation, and Reality Testing
Agreement or Impasse
- Drafting of Settlement Memorandum
How Participants Can Improve the Odds of Success in Mediation
- Come with an attitude that there is problem to solve vs. a battle to win.
- Insure that you have adequate settlement authority or access to someone who does have any required authority.
- Be familiar with the facts and law that will arise during the mediation.
- Be prepared to listen to the other side’s presentation and arguments.
- Be polite and courteous (Do not interrupt the other side’s presentation).
- Insure your client is familiar with the process and mechanics of mediation.
- Appreciate that the mediator’s role is to cast doubt on each participant’s position without advocating that doubt.
- Give the mediator information to argue on your behalf.
- Avoid posturing or taking immovable positions.
- Remain focused on the objective: “To reach a negotiated settlement.”
- Define the respective needs of each party.
- Be open-minded to devise creative solutions to the problem.
Selecting an appropriate mediator for your case.
- Look for a mediator who is acceptable to all parties.
- Obviously, the mediator must be available within your time constraints.
- Insure that the mediator’s fee structure fits in your case budget.
- Make sure that the mediator will be “proactive” or “facilitative”, depending upon the needs of the parties involved.
- As one participates in numerous mediations, prepare a list of acceptable mediators with whom you have worked well; and provide that list to the opposing party to select any mediator on your list.
- Use mediators that you trust and who produce results.
- Insure that the mediator has some subject-matter experience to avoid wasting time bringing the mediator “up to speed”.
Qualities of Successful Mediation Participant
- Expectations not fixed
- Creative
- Willingness to accept any inherent risk as raised in the mediation
- Does not overly personalize the dispute nor the disputants
- Has a prepared “game plan” which can me modified spontaneously
