How Mediation Works 

Typically, when two parties come to mediation, they perceive themselves as  engaged in battle. The goal of each party is to win the war. Traditional  litigation fosters this approach, heightening tensions and increasing the real  and perceived differences between the parties. As a Mediator, I provide an  approach, agenda, and environment which encourage the parties and their counsel  to address their respective positions, including their financial and  non-financial interests, in order that the parties may ultimately reach an  acceptable resolution. Instead of having the parties and counsel partake in the  customary exchange of accusations, legal contentions, and legal argument, I  suggest that, for the purpose of the mediation, the participants put aside the  usual litigation roles, and adopt the role of a diplomat seeking a  resolution.

First, we create a neutral environment which encourages the parties to see  if a solution is possible. The rules, agenda, and goals are stated. To  facilitate resolution, the parties and/or counsel frame the issues and their  respective goals. In lieu of the usual litany of accusations, legally contentions  and arguments, for purposes of the mediation, I suggest that the issues be  recast in terms more conducive to resolution. Think and speak in the language of  the diplomatic corps of the State Department rather than use the weapons of  armed forces of the Defense Department.  Armies fight and sometimes win wars;  diplomats talk and oftentimes make peace.

After the dispute issues are stated, I use various methods in the general  session and in private sessions to explore the monetary and non-monetary costs  of litigation, the risks of continuing litigation, and possible means of case  resolution. The approach varies depending on the dispute issues, party  positioning, and other factors unique to each dispute.

Mediation works best when in the course of the mediation,  the parties reach  a more candid evaluation of the costs and risks of proceeding with the  uncertainties of litigation. In joint or private session with the parties, I  put forth the significant questions to move the parties toward the evaluative  and resolution process. In the private sessions with the parties, I provide a  neutral evaluation of the case where appropriate.

In my experience, a successful resolution is reached, as defined by the  parties, in more than ninety per cent of the cases, where the necessary  parties are present and are willing to participate in good faith. Where  complete resolution is not feasible (usually because of the gap in positions or  the need for additional information, discovery, time, or the absence of a party  and/or insurance representative), we explore continued alternative dispute  resolution rather than immediately falling back into the litigation mode.

Not all cases can be or should be resolved through mediation. However,  a  majority of cases may successfully be resolved through the mediation  process. In my experience and practice, mediation works. In most cases, the  resolution occurs in less time than is required for a party’s  deposition.

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