The June issue of Trial, a publication of the American Association for Justice, contains a helpful “How-To” article for trial lawyers on the mediation of commercial disputes. Stewart I. Edelstein wrote the lengthy “Hot-To” article, which discusses such topics as choosing the right mediator, preparing to mediate, selecting which strategies to utilize, getting past impasse and finalizing the mediation. The tips are summarized quickly for you below.
Choosing a Mediator
Mr. Edelstein writes that you should chose a mediator “…who is impartial and has a strong track record for effective problem-solving, excellent negotiating skills, patience, trustworthiness, a keen business sense, and a good sense of humor.” However, sometimes a general mediator won’t get the job done. You may need to choose a mediator who focuses on a particular area, such as construction or patents.
Preparing to Mediate
Failing to prepare is one of the biggest mistakes lawyers make in connection with mediation. Mr. Edelstein suggests many tips, including:
- Decide on an initial demand
- Discuss creative solutions with client before mediation
- Provide a complete pre-mediation statement
- Discuss proper mediation demeanor with client
- Work out an agreement for the terms of the mediation
Selecting Strategies
Make sure the strategies you select are the ones that will achieve the final results that the client seeks. Carefully consider the opening position. It is an important opportunity to convey to your opponent that you are a formidable adversary prepared to litigate the case to conclusion, if necessary. Nevertheless, recognize the benefits to both parties of resolving the case sensibly through this mediation. Finally, be patient, open-minded and involved.
Getting Past Impasse
This can easily be achieved by a good mediator with effective strategies. Mr. Edelstein includes many “impasse breakers” such as:
- Refocus on the importance of the ongoing relationship
- Emphasize mutual benefits of resolving the dispute without publicity
- Review risks and costs
- Consider non-monetary settlement components
- Consider a “double-blind” proposal
- Take a recess
- Transform the process from mediation to arbitration
Finality is Key
When the mediation is final, and if it is successful, Mr. Edelstein strongly recommends getting the terms of the agreement in writing before mediation concludes. Consider having a computer and printer available to draft the terms of the final agreement so it can be signed on the spot.
Preparation, however, is Mr. Edelstein’s biggest concern. It can be the difference between success and failure. An effective mediation can save time, money and relationships.
The National Arbitration Forum offers mediation services in all 50 states. Please see their Mediation Solution page for more information.
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