Mediation is one of the fastest growing alternative dispute resolution processes, due to its effectiveness in resolving disputes at any stage of a dispute or proceeding. Mediation is frequently required by courts prior to trial and by arbitration service providers prior to arbitration proceedings.

Unlike negotiations between disputing parties in which each party or their attorney seeks to gain advantage and avoid meaningful negotiation, concession, or any appearance of weakness, the mediation process establishes a fixed time, place and process. Participants must have proper authority in order to allow the parties to focus on the possibility of settlement.

Requirements for Successful Mediation

The three most important requirements for mediation are:

• An agreement to make a good-faith effort to settle the dispute;



• Clients, including decision makers, are present; and



• Adequate time must be provided for the process.

Mediation Process

Mediation is a voluntary process, so the parties have complete control over the terms of any settlement. The mediator does not provide a decision for the parties, as occurs in arbitration. The parties reach their own voluntary settlement.

Communications with the mediator are confidential, if requested. Open and candid discussion is encouraged. Participants realize increased satisfaction because they have an opportunity to state their case and participate in creating a solution to the dispute.

Strategic Considerations

Effective implementation of mediation requires careful consideration of a number of dispute specific factors and strategic issues:

• Parties with an ongoing relationship are more likely to identify creative solutions that enhance the settlement value to all parties.



• For maximum benefit in cost control and reduction to damage to relationships, mediation is best scheduled after key information and documents are shared, but before exhaustive document production and witness depositions are completed.



• Mediation usually resolves all issues, if successful. Mediation can also be used to narrow issues or identify key facts or rulings necessary for final resolution of the dispute.



• Participants with authority to settle must be present. Attendance by those needed to support the decision to settle is also important.

Selection of Effective Mediators

Neutrality and credibility are two requisite qualities a mediator must possess. Formal training and relevant experience in mediation processes are recommended.

The role of the mediator is to develop constructive communication and fully explore the real needs and interests of each party. The mediator should control the negotiation environment and provide a fair and objective structure for negotiations.

Selection of the mediator is very important. If a party has a reputation for bad faith negotiations, mediator selection becomes critical. Key variables that should be evaluated during each mediator selection process include:

• Should the mediator possess specific subject matter knowledge relating to the dispute;



• Can the mediator hold the respect and confidence of all parties;



• Does the mediator possess specialized training and knowledge that will facilitate settlement and a track record of success;



• What is the mediator’s style and behavior- do you need an authoritarian or a supportive facilitator;



• If emotions are high, can the mediator control venting of emotions without destroying the process and polarizing the participants;



• If urgency of resolution is important, is the mediator is available on short notice



• Are mediator fees and process reasonable.

Mediation is not a binding process and provides facilitative services only. Mediation can also be used to provide a private evaluation of the dispute for the parties. Pre-selection of a dispute resolution process is critical to outcome. Mediation is an excellent option for parties who value their working relationship and desire a quick resolution with a significant amount of control.

Pre-planning takes into account that disputes do arise. Planning for dispute avoidance and for fast, effective resolution should a dispute arise requires use of contract “best clauses”, creative risk management and insurance solutions, effective communications, and teaming and partnering. Other dispute resolution options include arbitration and litigation and innovative solutions such as standing neutral and dispute review board. Plan ahead for best results.