GETTING SUCCESS WITH MEDIATION

Attorneys choose Mediation to increase the probability of a successful resolution of a dispute.  With credit to Steven R. Covey for the concept behind his best-selling book, “The Seven Habits of Highly Effective People,” effective mediations share common characteristics:

A HIGHLY EFFECTIVE MEDIATION REQUIRES FIRST THAT ATTORNEYS CONSIDER MEDIATION FOR DISPUTE RESOLUTION. 

  • Counsel must choose to mediate the dispute, or mediation cannot work.
  • Avoid the temptation to see a willingness to mediate as a concession that a client’s case is weak.
  • Consider Mediation for disputes even before the parties incur the expense and inconvenience of filing a lawsuit.

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT THE RIGHT MEDIATOR BE CHOSEN. 

  • Does the dispute require that the mediator possess particular mediation experience, legal expertise or judicial experience?
  • Effective mediators share common characteristics: dispute resolution training and experience, neutrality, evaluative skills, perseverance and good interpersonal skills. 
  • Consider the personalities of the parties in selecting the most effective neutral.
  • Confirm that the mediator is neutral and has no conflict of interest in the dispute or with the parties and counsel

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT COUNSEL AND THE PARTIES PROPERLY PREPARE FOR THE MEDIATION.

  • Preparation of a mediation brief clarifies the dispute and the issues at stake and therefore increases the likelihood of dispute resolution.
  • The brief should address the strengths and weaknesses of the parties’ position and that of the opponents, the disputed legal and factual issues, and the costs incurred to date and the probable future costs through trial, the status of settlement discussions, and the available settlement options.
  • The attorney retains confidentiality by submitting confidential matters to the mediator either in a separate confidential mediation brief or during the mediation hearing.
  • At the mediation, the attorney and/or the party will present an opening statement to frame the issues for maximum impact on the mediator and the other side.

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT THE MEDIATOR CREATE A SAFE, NEUTRAL FORUM FOR DISPUTE RESOLUTION.

  • A neutral venue is preferable to meeting in the offices of counsel for one of the parties.
  • The mediator will ensure that the parties feel safe to express their concerns and interests without the risk of embarrassment, personal attack or violations of confidentiality. 
  • A non-threatening, neutral arena encourages the parties to exchange their interpretation of the dispute, to be open-minded, and to shift positions, to reach a resolution.

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT THE MEDIATOR MOVE THE PARTIES BEYOND LIKELY IMPASSES TOWARD DISPUTE RESOLUTION. 

  • The skillful mediator uses a variety of evaluative and communication skills to facilitate flexibility in positions and ultimately to reach resolution.
  • The mediator moves the parties toward resolution by actively listening, using evaluative skills, employing a cost-benefit approach, and using creativity, empathy, compassion and persuasion.
  • As the parties approach resolution, the participants become more willing to share previously confidential matters with the mediator, and also with the other parties.

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT THE MEDIATOR  THE PARTIES AND COUNSEL THINK CREATIVELY OUTSIDE THE BOX OF LITIGATION. 

  • Successful mediation is a dynamic process where conflicting interests and goals may produce a resolution not previously contemplated by the parties nor attainable from court-decreed judgments. 
  • Concerns of a party in mediation may offer an opportunity for a creative resolution. 
  • The effective mediator explores the interests, concerns, and the obvious and not so obvious settlement options in an attempt to resolve the financial and non-financial goals of the adversaries.

A HIGHLY EFFECTIVE MEDIATION REQUIRES THAT THE AGREED RESOLUTION BE IMMEDIATELY DOCUMENTED IN WRITING TO ENSURE FINALITY AND ENFORCEABILITY. 

  • The agreed resolution is immediately confirmed in writing in compliance with Evidence Code §1123. 
  • A settlement agreement template is available to ensure that a court, if need be, may enforce the settlement under the authority of Code of Civil Procedure §664.6.

Successful Mediations are more likely to occur when counsel and the parties keep in mind and practice these common characteristics of effective Mediation, and embrace the opportunity for resolution of the parties’ differences. 

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