Six Steps for an Effective Mediation (Step One)
Mediation is often involved in settling cases before trial. In its most basic form, mediation is a process in which a neutral third party called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a non-adversarial process designed to help the disputing parties reach a mutually acceptable agreement.
In mediation, decision-making authority rests with the parties. The role of the mediator is to assist them in identifying issues, fostering joint problem solving, and exploring settlement options. However, even when a case does not resolve in settlement, the experience may prove invaluable essentially because information that is gleaned during negotiations may compel the parties to take a new approach to the case or come closer to settling at least some of the issues. Mediation also provides the unique opportunity to evaluate the opposing side’s evidence and possible solutions as well as the issues an opponent will be emphasizing at trial. It will also allow the parties to assess how well an opponent responds to the weaknesses in a case. This is often the same kind of information lawyers seek through examinations for discovery and carefully planned document requests.
The following tips can help produce a successful mediation:
One: Choose a Mediator Carefully
Opinions differ on the importance of choosing a mediator. Some lawyers and experts believe that the choice has little or no bearing on the outcome, so they give little thought to this part of the process. However, others believe that choosing an appropriate mediator is as important and deserves as much of a lawyer’s attention as selecting jurors for trial.
Unlike at trial, the parties at mediation settle the case among themselves rather than submitting to the decision of a judge or jury. However, whether in trial or mediation, lawyers are obligated to provide clients with the same level of care, be it in selecting jurors or in selecting a mediator. Lawyers who have a working knowledge of the mediators in the area and who carefully consider mediators’ personality styles, backgrounds, and suitability for a given case are arguably paving the way for a successful mediation.
Mediation is essentially a negotiation between the parties and is governed by the same principles that apply to any negotiation. The process varies depending on the personalities, goals, and strategies of the participants — including the mediator.
To a great extent the personality styles of the participants determine the outcome. Since the mediator’s job is to facilitate a resolution that the parties and their counsel working alone cannot accomplish, the mediator’s style can be a great aid or a great impediment to the negotiation. Potential mediators should be asked what their general approaches to mediation are as well as whether they are facilitative or evaluative. Evaluative mediators typically want to evaluate the case and give the parties their opinions. Facilitative mediators on the other hand, facilitate negotiation and focus on allowing the parties to examine and address their respective issues.
Step Two, Prepare for the Mediation and Know Your Bottom Line, will be out next week! Please check back here, on our Facebook page, Francesco Grayer LLP Lawyers & Mediators, or our website www.francescograyer.com.
Marco Francesco is a lawyer, mediator, and partner at Francesco Grayer LLP. He routinely assists in the settlement of business, corporate & family law disputes. He can be reached at marco[at]francescograyer.com.