Why mediate?

Two answers spring to mind: cost containment and risk management. If properly utilized, mediation is an effective tool to manage both. But there are other reasons too, like preserving business and personal relationships and ending the stress of litigation. This post will explore how to get the most out of your mediation.

Eye-level view of a mediation session with participants engaged in discussion

Understanding Mediation

Mediation is a process where a neutral third party, the mediator, assists disputing parties in reaching a mutually acceptable agreement. Unlike a judge, the mediator does not impose a solution but facilitates communication and negotiation.

Benefits of Mediation

• Cost-Effective: Mediation typically costs less than litigation due to shorter timeframes and reduced legal fees.

• Confidential: Unlike court proceedings, mediation is private, allowing parties to discuss sensitive issues without public scrutiny.

• Control: Parties have more control over the outcome, as they work collaboratively to find a solution that meets their needs.

• Preservation of Relationships: Mediation fosters a cooperative environment, which can help maintain professional or personal relationships post-dispute.

  
  

Preparing for Mediation

Preparation is crucial for a successful mediation. Here are some steps parties can take to prepare:

1. Identify Interests: Before the session, parties should identify their underlying interests and goals.

2. Gather Relevant Information: Collect any documents or evidence that may support your position.

3. Set Realistic Expectations: Understand that mediation will not result in a perfect solution. The goal should be a satisfactory outcome that avoids risk and expense.

4. Know the Issues: Having a strong command of the facts, legal issues, and forum will help you provide the mediator with the tools needed to push back against unrealistic bargaining positions.

5. Communicate: Take advantage of a pre-mediation call with the mediator to provide context that may help the mediator find compromise positions.

6. Prepare for Success: Identify and address ancillary issues, such as liens, that might impact a settlement.

7. Keep and Open Mind: A creative solution that no one considered is often the key to settlement.

   
   

Manage the Obstacles

While mediation can be highly effective, it is not without challenges including:

• Emotional Barriers: Disputes in litigation can often involve strong emotions causing parties to have expectations beyond what is possible

• Power Imbalances: If one party holds significantly more power, it can affect the negotiation process.

• Resistance to Compromise: Parties may be unwilling to budge from their positions on principal.

  
  

Identifying these and addressing them prior to the mediation, increases the chance of success.

Mediation is a collaborative process between the parties, their attorneys and the mediator that can save thousands in litigation expenses, preserve relationships, and manage risks. As you consider mediation for your legal disputes, remember the importance of preparation.