Tips for a Successful Mediation

Vol. 1, No. 6

Jay E. Grenig is a professor of law at Marquette University Law School. An arbitrator and mediator, he has authored Alternative Dispute Resolution jgrenig@earthlink.net.(Thomson Reuters) and Fundamentals of Labor Arbitration (American Arbitration Association and Cornell School of Industrial & Labor Relations). Contact him at

 

  • Learn how to prepare for the mediation.
  • Know what makes your client tick.
  • Know how much failure hurts everyone.

Mediation has sometimes been described as “assisted negotiation.” In effect, mediation is an extension of the negotiation process. Successful mediation requires you to apply the skills of a competent negotiator.

The following tips will aid in making the mediation successful in resolving a dispute.

 

Choose a Mediator Carefully

Choosing a mediator is important and deserves your careful attention. Not only should the mediator have mediation experience, but it is also important that the mediator’s experience be with the issues that are the subject of mediation.

 

Prepare for Mediation

You must prepare for mediation as if preparing for trial. Proper preparation includes becoming thoroughly knowledgeable about the facts and legal theories of the client’s case. It is also essential to become knowledgeable about the other party’s case and legal theories.

 

Know Your Client’s Target Point

It is essential to know the client’s target point—the solution satisfying the client’s interests. In setting the target point, you should consider the highest estimate of what is needed and the most optimistic assumption of what is possible.

 

Know Your Client’s Resistance Point

You must also know the client’s resistance point or bottom line—the point at which a settlement would be unacceptable to the client. Consideration should be given to the lowest estimate of what is needed and would still be acceptable to the client, a realistic analysis of what is possible, and the best alternative to a negotiated agreement (BATNA). It is important to be willing to modify the resistance point if compelling reasons for doing so arise during mediation.

 

Consider the Range of Positions Between the Target Point and the Resistance Point

You should plan for the following positions for each issue: opening position, secondary position, fallback position, and bottom line.

 

Keep an Open Mind

If mediation is to be successful, you must be willing to think creatively and to re-examine positions and goals in light of information disclosed during mediation. Brainstorming with the mediator can be helpful. A problem-solving approach frequently is effective for obtaining a satisfactory result.

 

Educate the Other Party and Yourself

In some cases, the mediator may request the parties to exchange and submit key documents and written statements before the first mediation session. Take advantage of that opportunity to educate the mediator and the other party. You should also take advantage of the mediation to educate yourself about the other party’s position.

 

Persuade

Remember, the objective of mediation is not to persuade the mediator, but to persuade the other party to agree to a voluntary resolution of the dispute.

 

Use the Mediator As a Messenger

The mediator can convey information that would be difficult for a party to communicate directly. A mediator’s “what if” or “have you considered” can be made without suggesting the source of any ideas or possible solutions.

 

Recognize the Benefits of Resolution

You should keep in mind the objective of the mediation—resolution of a dispute. Do not forget the cost of failing to reach an agreement.

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