Mediation Services
Today, parties litigate because they know of no better alternative. However, as the benefits of mediation have become more widely recognized, it is the most utilized tool for resolving civil disputes in the future.
What is Mediation?
Mediation is a process for resolving disputes by which I assist the parties in reaching a mutually satisfactory settlement. While some judges say a good settlement is one in which all parties are equally unhappy, my goal is to help achieve a “win-win” resolution.
Mediation is an extension of the parties own negotiations and is sometimes referred to as a “supercharged negotiation” because, rather than weeks or months, a mediation typically lasts one day or less.
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence in a trial or arbitration. The session will normally be attended only by me, the parties and their attorneys.
The mediation process is entirely voluntary and non-binding. I have no power to render a decision or to force the parties to accept a settlement. Rather, my role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached, any statements during the proceedings are inadmissible as evidence in any litigation.
A mediation session hosted by me begins with a joint meeting of the parties, their attorneys, and in some cases, insurance company representatives if one of the parties requests a joint session. I typically prefer to begin with caucuses. However, if a joint session is requested, I first explain the format and discuss the confidential and non-binding nature of the proceedings. I will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, I will separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”. In these caucuses, I work with each of the parties to analyze their case and develop options for settlement. Normally, I will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration in that I do not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. I generally make recommendations but allow you to make your own decisions based on a realistic analysis of your situation.
Why Mediation Works
The American Arbitration Association reports that over 80% of all mediations result in a settlement. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. So why does mediation work, when the parties have been unable to settle the case themselves? There are a number of reasons.
First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any “reasonable” settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
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Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.
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Fourth, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
Fifth, mediation allows each side to “test market” a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to “give in”.
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Sixth, mediation offers each party a “realistic” look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
Seventh, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
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Eighth, the parties retain control. At the conclusion of a trial, the judge or jury decides the outcome without input from the parties. In contrast, parties to mediation are the decision-makers. They meet solely to resolve their dispute, and they actively participate throughout the process. Further, the parties are free to consider options other than monetary damages, which increases the chances of obtaining an outcome that successfully resolves the conflict. In mediation, the parties chart their own future.
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can “realistically” evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
The Mediation Process
Stage 1: Preparation.
While the parties will do their own preparation, I will prepare by reviewing required pre-mediation summaries by each party. These generally include the party’s description of the issues, their position on the issues, and the settlement history. I like the party advancing a claim to include an initial offer and the other party to provide me with an idea of a desirable outcome.
Stage 2: The Joint Session.
Though I will contact you and the other side in advance regarding logistical matters, mediated negotiations may begin with a joint-session that serves to educate me, to uncover any differing views of the facts, and to clarify what each side considers a satisfactory resolution to be. However, my practice is to dispense with a joint session. The number of people present will vary, but each side generally includes a spokesperson (typically a lawyer), one or more people involved directly in the dispute, and someone with the authority to enter in to recommend a binding settlement.
If there is a joint session, I will encourage all participants to introduce themselves and present what they view to be the facts and the desired outcome of the dispute. I will also ask questions that enable me to better understand the dispute and its underlying dynamics.
Stage 3: Caucuses.
I will typically begin separate sessions with each party with a statement such as this: “As you know, whatever you say to me in caucus is confidential. I will not repeat anything to the other side that you don’t want me to repeat.” Having provided this assurance, I begin collecting information about each side’s interests as a result of the pre-mediation submissions. I will want to know more about the underlying needs or concerns implicated in the dispute, as well as their importance.
Armed with such information, I begin moving back and forth between the teams for a series of conversations, suggestions, proposals, and counterproposals aimed at building a resolution that will satisfy each party’s core interests, a process sometimes called shuttle diplomacy. I want to know what settlement terms you’d find acceptable – and that you think the other party might accept. I may also try to identify your non-settlement alternatives.
Stage 4: Resolution.
Depending on the complexity and importance of the matters in dispute, it can take several hours, days, months, or even longer to reach an agreement. Ultimately, mediation leads to resolution in approximately 80% of all mediated disputes. Sometimes the resolution is truly “win-win.” At other times, one side is thrilled with the deal, and the other considers it barely acceptable – though better than a long, uncertain, and expensive journey through the courts.
Effective Mediation Techniques and Strategies
Mediation Tip #1. Solicit My Opinion.
My private conversations with each party are likely to lead me toward a settlement framework that will result in a resolution. I volunteer settlement ideas. Consider asking me for suggestions regarding your own settlement proposal. This tactic not only assists you in identifying a proposal that would suit you but also takes advantage of my knowledge of the other side’s interests—and helps you avoid making a proposal the other side will find offensive. Suppose you plan to initially demand $9.5 million from the computer manufacturer and gradually reduce your demand to as little as $2 million. Rather than simply asking me to convey this offer to the other party, you ask me what I think. “The other side thinks your current $10 million claim is outrageous,” I may tell you. “An opening proposal of $9.5 million could make serious negotiations impossible. Here’s a suggestion. If you open at $7.5 million, I can point out the substantial amount by which you’ve moderated your claim. I’ll suggest that if the other side’s next offer is similarly moderate, each side will have demonstrated a good-faith desire to settle, and we should be able to do so.”
Although you’re under no obligation to accept my advice, recognize that my private conversations with the other side have given me considerable knowledge about the other side’s interests. Taking advantage of that knowledge may lead to a settlement.
Mediation Tip #2. Give Me Your Great Ideas.
When talks escalate into a dispute, negotiators often develop negative opinions about each other. If only the other side was bargaining in good faith, you might think, we would have resolved this issue long ago. Such views can lead each side to respond to the other side’s settlement proposals with skepticism—a tendency that psychologists have termed reactive devaluation.
Obviously, skepticism does not bode well for agreement.
I can help you overcome this barrier. Imagine that your conversations with me have led you to a novel settlement plan: you propose a joint donation of the fragile laptops to public school systems (which can bolt them down to make their fragility less of an issue) in the countries where you do business. This move could generate favorable publicity for the manufacturer and for you while also introducing schoolchildren (future computer buyers) to both companies. Rather than taking the risk that the manufacturer will reactively devalue your idea, suggest to me that I propose it as my own idea. If I believe your plan is fair and has merit, I can help you refine it—and present it in a way that minimizes the other side’s skepticism.
Mediation Tip #3. Take A Reality Test.
Sometimes the unrealistic views of your own team members will turn out to be the major barrier to settlement. If they fail to understand the other side’s interests or priorities, they may advocate standing firm and waiting for concessions. Or perhaps certain members of your team have an exaggerated view of the likelihood that in the absence of a resolution, a court will rule in your favor.
Your ability to persuade your colleagues of the unrealistic nature of their views is limited; after all, if you contradict them too strongly, they may doubt your loyalty. Therefore, when negotiating within your team, use me to bolster your position by asking for my views on the internal debate: “How likely is the other side to concede? How likely are we to prevail in court?” Your team members are apt to accord special status to my neutrality and experience.
Mediation Tip #4: Know When To Say No.
As you take advantage of these techniques, keep in mind that your interests and mine are not identical. My sole interest is to help the parties achieve a settlement. This is also your interest, of course—but only if the settlement is preferable to your no-settlement alternatives, such as a trial or termination of your relationship with the other party.
Thus, you must ask yourself whether following my advice will lead to an agreement that is better for your side than no deal at all. Imagine that after two intensive days of proposals and counterproposals, you and the computer manufacturer have agreed to a joint donation of the too-fragile laptops to public schools but not on the amount the manufacturer will pay you for lost profits. You most recently demanded $1.75 million.
I propose that you accept $1.5 million, along with various other commitments from the manufacturer. Although these interests may be worth more than $0.25 million, it’s impossible to assign them a clear financial value. I tell you that I am reasonably certain the other side will accept this proposal and that if you accept it, the dispute will be satisfactorily resolved.
What should you do? Most critically, don’t accept my proposal just because I have been working hard to help you reach agreement. Instead, ask yourself whether you might do even better. Why not tell me that you want both $1.75 million and the proposed commitments?
The other side might agree to this deal. If not, you can gradually reduce your financial demands until either the other side agrees or you decide to pursue an alternative to settlement. Remember that the object of mediation is not to please the mediator but to secure the best deal possible for you.
I will be pleased only if there is a deal at the end of the day.
Bottom Line
1. Mediation is cost-effective.
Lawsuits involve attorneys’ fees and court costs. In addition, trials require extended preparation and may span days. Mediation costs less than litigation. My mediations typically cost less than $5,000, and the amount is shared, unless otherwise agreed.
2. Mediation is fair and impartial.
Parties have an equal say in the process and they, not the mediator, decide the terms of the settlement. There is no determination of guilt or innocence in the process.
3. Mediation saves time and money.
Mediation works best when used early in a conflict, and many mediations are completed in one meeting.
4. Mediation is confidential.
Information disclosed during mediation will not be revealed to anyone.
5. Mediation avoids litigation.
Mediation costs less – in time, money and emotional toll – than a lawsuit and avoids the uncertainty of a judicial outcome.
6. Mediation fosters cooperation.
Mediation fosters a problem-solving approach – for anyone in conflict – that gets to the root of the issue to find true resolve for all parties.
7. Mediation improves communication.
Mediation provides a neutral and confidential setting in which the parties can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions.
8. Mediation identifies underlying issues.
Parties share information, which can lead to a better understanding of issues affecting the relationship.
9. Mediation allows personalized solutions.
An impartial third party assists the parties in conflict to reach a voluntary, mutually beneficial resolution. Mediation can resolve all issues important to the parties, not just the underlying legal dispute.
10. Mediation works!