Virtual or Live Mediation?
As a result of COVID-19, most mediators turned to virtual mediations via various platforms. There have been many pros and cons, however, parties and counsel have adapted and are likely to continue along with live mediations. When the mediator is virtual, it is even more important to prepare counsel for the logistical issues. Bandwidth, access to equipment, and attention to the process all become important.
As a mediator, I have noticed more cases going to live sessions and some parts virtual. When this occurs, the logistics and pre-sharing of pertinent documents and proposed settlement agreements become more significant.
The takeaway from all of this is to be prepared and anticipate the logistical needs to make the mediation successful.
Don’t hold back facts in mediation
With mediation being a confidential process, there is no need to hold back pertinent facts from a mediator or the other party. Disclosure of pertinent facts can often assist the mediator in helping parties resolve a dispute.
If parties are truly committed to settling the dispute, it is not productive to keep the smoking gun document from the mediator. Also, if there are personal issues, such as health, life or employment changes or unique interests that need to be addressed, this is the time to bring them forward. If a party wants the mediator to know these important points but would like them to be kept confidential, this can be accomplished.
The takeaway is that through proper preparation for mediation, all this can be addressed. As a mediator, I certainly explore this question with counsel and parties.
Is a mediation just about money?
Many parties entering mediation assume the only way to resolve a dispute involves the payment and receipt of money. Having assisted parties in resolving hundreds of disputes, I can assure participants that a resolution can involve money plus affirmative steps, no money, or just affirmative actions.
A successful resolution requires exploring the interests, options, and brainstorming. By engaging in this process, alternatives beyond money can be discovered and made a part of the resolution.
For counsel, more preparation and early discussions with the client shine a light on what interests need to be addressed to successfully settle the dispute.
Is your client prepared for mediation?
On occasion when serving as a mediator, I have been asked by a party to the dispute, “When will you make your decision?”
I then need to reaffirm the purpose of mediation and that I will not be making a decision for them.
This scenario certainly suggests that the client was not adequately prepared for mediation. This situation has prompted me to send parties a mediation preparation guide to encourage discussion between counsel and their client in an effort to make the mediation successful for all involved.
Who are the decision-makers in mediation?
During mediation, this question will eventually be significant as we approach a resolution. On occasion, it becomes apparent that the decision-maker is not at the mediation table. This has prompted mediators and judges to require the person with authority be present at the mediation.
As a mediator, I will explore this issue in pre-mediation conference calls with counsel to assure the correct people are present to resolve the dispute. It is important for the decision-maker to participate in the mediation and the dynamics of the back and forth regarding the facts, law, offers and counteroffers.
The takeaway for counsel is to make sure the decision-maker with authority is involved with the mediation and terms of an agreement.
PAST MEDIATION MINUTES
There's No Such Thing as an Impasse
An impasse is a situation in which no progress is possible, especially because of a disagreement, deadlock, or a situation where parties won’t move forward.
Mediation, on the other hand, is when parties have a conflict or dispute and hire a mediator to assist in achieving a resolution. Thus, our slogan at the ADR Center: Come with conflicts. Leave with solutions. This should always be the attitude of a great mediator and the parties. Mediation is designed to address a conflict the parties have and to avoid an impasse.
Mediation/Arbitration: A unique combination to resolve disputes
Recently, I was appointed by a prosecutor and defense attorney, with approval of the judge, to assist in the resolution of an alleged theft case. The counsels’ thought process was to mediate the matter in hopes of arriving at an agreed arbitration award to be filed with the court. This process is referred to as med/arb.
Using a mediation process with the parties, we worked to see if any agreement could be reached on a dollar amount without an admission of guilt and a no contest plea as to the facts. Once we arrived at an agreed payment to be made by the defendant and accepted by the victim, an agreement was reached that an arbitration award would be issued and submitted to the court for final disposition. The effect was the criminal proceeding was not pursued and a civil arbitration order was entered to provide agreed upon restitution for the victim.
Judges, prosecutors, and victims should consider exploring this creative dispute resolution approach that eases the burden on the courts and all parties involved.
The Concept of Anchoring in Negotiation
Having a strategy when negotiating or participating in mediation is essential to a successful outcome that results in an agreement between the parties. Mediators see various levels of preparation and strategy by the parties participating in the process, and the party who approaches the mediation with a plan often achieves a more successful outcome.
Mediating the Sexual Harassment Case
Courts and parties are favoring mediation more often with these claims because of the sensitivity of some situations and the desire for confidentiality and a quick resolution. This is especially so with claimants who are minors or who are victims of prior abuse. Mediating these claims often requires a different approach by the parties and especially by the mediator. MORE
Be Fully Prepared: Negotiation Notes and Mediation Minutes
With any successful negotiation or mediation, I have seen greater levels of success by lawyers and their clients when it is obvious they have entered the process fully prepared with the facts, the law and supporting documentation or support for their position and proposals. MORE
Get the Five Ws and How: Negotiation Notes and Mediation Minutes
The purpose of this and future articles is to share insight and provide best practices on how to resolve conflict and disputes faced by all lawyers. Whether you are involved with negotiating a contract, resolving a business dispute, a divorce or a simple or complex piece of litigation, all lawyers can enhance their negotiation and mediation skills. MORE
For adversaries to reach a resolution, they need to come to terms on the merits. To maximize the chances of a successful resolution, they should also be of the correct mindset. I have found that one mindset maximizes the chances of success. MORE
Mediation Fundamentals – What You Need to Know
Generally, mediation and its process are foreign to most litigants. With the possible exception of the parties’ lawyers and insurance adjusters, often even the most sophisticated business clients have never been in mediation and do not fully understand the process or know what to expect. MORE
Best Practices for a Successful Negotiation or Mediation
A key quality for a successful attorney, leader of an organization, claims professional or human resource professional requires effective negotiation skills to resolve conflict and disputes. MORE
When Mediation is Likely to be Helpful
Ensure the matters and parties are open to mediation. MORE
Ensure the parties are open to negotiate or mediate the dispute
Not all matters will be appropriate for mediation. MORE
Pick the Right Mediator and Agree on the Role of the Mediator
The relationship between the mediator and the parties must be clearly defined and be based in trust. MORE
Insist on Using Objective and Legitimate Criteria
Define the terms of fair: Approaching mediation or negotiations requires that the parties agree on what criteria to use to determine what is a fair agreement. MORE
Separate the Person from the Problem
When approaching mediation, parties need to work together to tackle the problem, not each other. MORE
Focus on Interests, Not Positions Interests
For every interest, there usually exist several possible satisfying solutions to adequately address those interests. MORE
Acknowledge Conflicting Interests and Work to Understand your Interests and their Interests
Follow these steps in order to accomplish this important task. MORE
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