By Kent B. Scott and Cody W. Wilson
How Do We Get the Mediator to See It Our Way?
The client who asks this question has not understood the mediation process. This client erroneously believes that it must persuade the mediator that it has the best case. Thus, the client must be reminded that the mediator does not decide the dispute, so persuading the mediator is not the goal. The goal is to persuade the decision maker for the adversary that it is in both side’s interest to enter into mutually agreeable settlement.
It is important to educate the mediator about the dispute but the reason for doing so is not so the mediator can reach a decision on the merits. It is to enable the mediator to engage in “reality testing” with each side so that they recognize that there are good reasons to settle, and to serve as an an effective intermediary in the dispute, conveying information and offers back and forth between the parties.
When and Where Should We Mediate?
Mediation can take place at any time before litigation is commenced or if already commenced, before the jury reaches a verdict, a judge hands down a ruling, or an arbitrator renders an award.
When to mediate will vary with each case. The chemistry of each case will dictate the answer. The main danger is in mediating too soon. So it is important to keep in mind the elements of a successful mediation to make sure they are in place before beginning the mediation.
As to where to mediate, the location is usually determined by the mediator and the parties. If the mediation is administered by the AAA, the case administrator and the mediator will work with the parties to determine the place and date for the mediation.
Part VI of this series will discuss how to get the mediation started. Stay tuned.
[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]
Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.
Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at firstname.lastname@example.org and email@example.com.