Mediation is a conflict resolution technique whereby parties are joined by a neutral mediator who helps the parties work towards a negotiated settlement.
The mediator typically uses his or her expertise in the area of law, combined with the art of persuasion, to help the parties resolve their dispute. Unlike an arbitrator or judge, a mediator has no power to resolve the dispute him- or herself without the consent of the parties.
Many contracts insist on mandatory mediation prior to the filing of a lawsuit or notice of arbitration. This is because a mediation gives the parties some measure of control over the outcome of the dispute.
If the dispute is not too emotional or contentious, it may provide a measured way for the parties to resolve the dispute at minimal cost, and without needing to file a lawsuit.
Here are five tips to ensure a successful mediation:
1) Prepare a mediation brief that advocates your story. Mediation is meant to be conciliatory, but it is also an opportunity to tell the mediator your side of the story. Treat the mediation brief as an exercise in advocacy. There should be an objective recounting of the facts, followed by citations of law that support one’s position. A robust mediation brief will help the mediator understand where the parties agree and where they disagree.
2) Be prepared for different styles of mediation. Some mediators like the parties to be in the same room, while other mediators prefer “shuttle diplomacy” where they take offers back and forth. A mediator’s style is highly personal and is designed to put pressure on the parties to settle.
3) Remember that mediation is a process. People can and should use the mediation process as a way of telling their story to a neutral third party and receiving feedback about what happened. The process itself can be empowering, as it permits the parties to directly take control of the case and the outcome.
4) Be prepared for a long day. Sometimes it can take hours for a mediation to be successful. Progress can be slow, particularly if the parties are far apart at the beginning of the day. Key breakthroughs often happen at the end of the day when the parties are tired of the process but don’t want to lose the progress they’ve made. Fatigue can be a powerful ally in reaching a settlement.
5) Be prepared to hold your nose. The result of a successful mediation should be a settlement, and like all settlements, it may not be exactly what you want. Parties should be prepared to give and take with respect to their position. Figure out what your absolute “bottom line” is – which may be very different than your preferred or expected outcome.
Mediation is not magic. The parties have to want to settle, and they will have to be willing to be flexible regarding outcome. But if they can do these things, they may discover that mediation provides them with a good way to settle the case