By Kent B. Scott and Cody W. Wilson
The success of mediation is mainly determined by the parties. It is their process and they are in control of the ultimate result. While there is no guarantee that any mediation will succeed, there are some common elements found in successful mediations:
- The mediator selected by the parties had the skills, knowledge and style (i.e., evaluative or facilitative) that fit the dispute and personalities involved in the mediation.
- People with knowledge of the dispute and others with authority to settle on each side’s behalf were present at the mediation.
- The parties exchanged enough information to be able to understand the positions and perspectives of the other.
- The attorneys and the party representatives were well prepared to mediate.
- The parties identified their respective needs and interests and formulated proposals that would satisfy the interests of each participant.
- The mediator, the parties and their attorneys were committed to making the mediation work. They did not give up on the process too early and were willing to explore all available avenues and options.
Mediation is very effective in helping parties settle all kinds of disputes. But to work, the parties must remain flexible and avoid “drawing a line in the sand.” Nothing brings the mediation to an impasse quicker than focusing on the “bottom line” approach.
The parties select the mediator they want to serve as a catalyst in negotiations. The parties control the ultimate outcome. The questions and answers presented here identify the information parties need to know in order to decide whether to mediate, as well as the information they need to know to be prepared to engage effectively in mediation.
The parties’ reactions to this information is highly germane to the means and methods that will be used in the mediation. Thus, after learning the client’s reactions and their preferences for the mediation, counsel should convey this information to the mediator so that they can design the appropriate mediation protocol. Mediators should also be interested in the questions that parties ask their counsel about the mediation process so that they can be aware of unstated concerns in private caucuses.
[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.