It is now well established that mediation is an extremely effective process for the resolution of a wide variety of business, personal, contract and other legal disputes. Party self-determination and control of decisions leads to more durable resolutions. Preparing and positioning your matter for efficient and successful resolution in mediation requires strategic assessment, planning and scheduling.
Do you have sufficient information to permit you to make sound business decisions? Parties often do not have all the information that may want about a dispute. In litigated disputes, the practical sweet spot is to have enough information about the substantive, procedural and legal information to permit parties to make good business decisions.
Here are some key questions lawyers should consider when deciding whether and when to mediate. (Excerpted from blogs by Jill Hamill Sopha, Esq., Adjunct Professor, Marquette Law School)
Ask the Right Questions
Nearly all substantive legal matters can be resolved through mediation. But, whether any particular case is a good candidate for mediation goes well beyond a consideration of the substantive law and legal merits of the case. As such, the question isn’t whether the “legal issue” or “legal case” is good for mediation but, rather, whether the process of mediation would be beneficial in meeting your client’s needs.
The following questions can help lawyers determine whether a particular case is a good candidate for mediation.
Can mediation enhance your negotiations?
Most matters can and do resolve through direct attorney to attorney negotiation. But, for those matters that don’t settle through direct negotiation, or where the attorneys believe that direct negotiation is not in their client’s interest, mediation is an alternative to be considered.
Mediation is best viewed as a “negotiation enhancement” or a “facilitated negotiation” – not some separate, stand-alone event. A key goal of the mediation is to “fix the negotiation” by identifying and resolving the impediments that have prevented resolution.
Is your client interested in owning his or her own decision-making, and resolving all aspects of the dispute – legal and nonlegal?
Unlike with arbitration or litigation, where a judge or jury will make all of the decisions, mediation allows for greater party participation in the process. Specifically, the mediation process allows the parties to control whether and how to resolve their dispute. If you have a client that prioritizes controlling his or her own destiny and/or the ability to predict and plan for an outcome, mediation is an avenue to consider.
Additionally, in many situations, including business, employment and family disputes, parties have (or had) a relationship that extends well beyond the legal dispute. Resolving the legal dispute while leaving other issues and potential disputes unresolved can result in future risk, and a less-than-satisfying outcome for the parties. Simply, if a broad picture of the dispute beyond the litigated matter is not considered, the party runs the risk of “winning the battle, but losing the war.”
A skilled mediator can provide parties with the opportunity to truly resolve all issues – legal and nonlegal – in one full and final and mutually agreeable resolution.
The process of mediation can help preserve the on-going details for relationships where parties need to continue to work together. Alternatively, mediation can help parties end relationships and clean up associated issues where parties decide to go their separate ways.
Would your client benefit from a less formal process and the ability to craft and consider creative solutions?
Mediation allows for a flexible process where the parties are provided the opportunity to “be heard” or to feel as if they have had their “day in court” in a way that may not be available in a court or arbitration. This can be done in a less formal manner that allows the parties to move from emotion-based reactive decision-making to proactive, collaborative problem-solving. Mediation also allows the parties the opportunity have a neutral third party evaluate the strengths and weaknesses of their respective cases in a nonbinding manner.
Unlike litigation or arbitration, mediation also allows parties to come up with creative ideas – often well beyond and different from what a judge, arbitrator, or jury could order – to resolve their dispute(s). In employment disputes, provisions such as no-reapplication, non-disparagement, and references are often very important to the parties. A skilled mediator can help the parties raise and discuss terms that may be difficult or risky to address in direct negotiations.
Is your client concerned about the time and cost of litigation?
Substantial attorneys’ fees can be financially difficult or even devastating to a client, and can act as an impediment to settlement. Mediation can help parties avoid the time and expense of litigation. This is especially true when mediation is done early in the process – as soon as the attorney has sufficient information to adequately advise his or her client on the merits of the case.
Is there a desire for confidentiality?
Especially when conducted before litigation, mediation helps parties avoid the public nature and potential related publicity that can accompany certain sensitive litigation.
Of course, all mediation communications are inadmissible, which allows the parties to explore creative alternatives that they may be hesitant to raise outside of the mediation process. And, in the event that a matter does not resolve at mediation, mediation communications cannot be used in the legal proceeding.
Is a durable agreement a priority for your client?
Quite simply, when parties have the opportunity to participate in the process and decide whether and how to resolve their dispute, they are more likely to abide by the terms of the resolution reached.
When is the best time to mediate?
Generally, the best time to mediate … is “the sooner, the better.”
In mediations, just like in any negotiations, you need to face the prospect of settling a case without complete information. More specifically, you need to determine when you have sufficient information to adequately advise your client on the merits of the case.
Often, you need much less information than you may think. You may have a good grasp of the facts right away. Or, it may be reasonable to predict that more information will inevitably produce facts that are helpful (and not so helpful) to your client’s position. Remember, if there is some critical information that you truly need, heading down the path of formal discovery is not your only option. A good mediator can and should help the parties agree to an exchange of critical information as part of pre-mediation discussions.
Are parties ‘Too Far Apart’ to warrant Mediation?
Matters are in mediation because they have not yet and do not appear likely to settle through direct negotiations (as most matters do). It goes without saying that all cases that go to mediation are at “impasse,” where direct negotiation has failed; yet a very high percentage still settle at mediation. So, being at an impasse should not be a reason not to mediate, but rather should be a reason to consider mediation. [Mediation can enhance discovery, narrow issues, overcome emotional and personality impediments that sometime complicate negotiations.]
Can a mediator help parties move from impasse to resolution?
As an initial matter, people cannot make good decisions when they are overly angry or upset. As such, a good employment mediator will dedicate a limited – but essential – period of time to allow parties to express themselves to the mediator. This ability to “be heard” by a neutral third party is a unique benefit to mediation. It works to help the parties to move on from their focus on the past to a new focus on what’s next – the future (i.e., resolution of the dispute). This time also allows the parties to build trust in the mediator – this trust is essential as the day progresses and difficult messages may need to be conveyed. This time also provides the mediator with valuable information about what is most important to the parties, which is essential when it is time to develop creative solutions for effective problem-solving.
Mediation also allows the parties the opportunity have a neutral third party evaluate the strengths and weaknesses of their respective cases in a non-binding and confidential manner. A good mediation process will ensure that parties appreciate the inherent uncertainty of proceeding with litigation, as well as the certainties associated with litigation – namely, cost, stress, and time away from other business and personal priorities.
Parties should also be made fully aware of the factual and legal weaknesses in their cases in an effort to ensure that no stone is left unturned in the search for a resolution.