The vast majority of legal disputes aren’t ended due to a trial. But, at some point, the parties reach a mutually agreeable compromise, and the dispute is resolved. Mediation is one way to help parties reach an agreement if they can’t do it themselves. Attorney Richard Shore, writing in Forbes, has these ideas to help increase the chances that mediation will reach a resolution.
- Let the other side pick the mediator: Parties often start the mediation process by choosing a mediator through a complex, expensive, time-consuming, and adversarial process. Skip this aggravation by having the other side pick the mediator. This encourages a cooperative spirit, generates goodwill, makes the process faster, and reduces costs. Reserve the right to turn someone down if there’s a conflict but don’t be nit-picky. The other side may think there’s an advantage to using a particular mediator. They should be seen as more credible to them. If the mediator says something positive about your proposal, it should carry some weight.
- Avoid arguing about who’s right: Mediation is about reaching an agreement, not establishing who’s right and wrong. Both sides should have a good grasp of the facts and applicable law. Focusing on vindictive arguments can harden positions, antagonize the other side and divert attention from the goal of settlement. Talk about dollars or other things leading to key settlement terms as quickly as possible. You can argue about the case later if the mediation fails.
- Leave the litigators at home: If a different attorney litigates the case, it may be better for that person to avoid the mediation. An attorney who is devoted to settling the case may not be poisoned by the adversarial atmosphere, and litigation can create animosity. Litigation and settlement require different mindsets and skill sets. Cases often settle on the courthouse steps. Separating litigation and settlement allows litigators to maintain pressure on the other side at critical times while settlement counsel can focus their attention on reaching a resolution.
- Deal with complex issues last: Don’t put all the issues on the table first. You’re just creating a higher mountain to climb. Focus on critical issues first and leave other, perhaps more challenging issues for later. If a key term can be agreed to, the parties should feel that they have reached a deal, and the remaining terms can be worked out. This approach creates momentum, not impediments. Substantive issues often prevent agreements, but they usually won’t be prevented due to drafting issues. Perhaps you should leave the complex issues until the end and call them drafting issues. A rose by any other name might have fewer thorns.
Shore’s suggestions point out that litigation and mediation, in many ways, are the opposite. In contrast, litigation is seen more as a battle mediation that allows the parties to work together for mutual good. They don’t need to like each other when all is said and done. They need to reach an agreement.
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