There are many factors that can lead to a successful mediation and a settlement. Near the top of the list: empowering the parties to the dispute.
Separate Caucusing versus Joint Session
At the outset, it is important to contrast the concepts of litigation and mediation. In litigation, it is the judge (and oftentimes a jury) that maintains "power". The judge or jury decides the outcome of the case. Moreover, the decision that is reached is not necessarily tailored to meet the needs of one or both of the parties.
In mediation, it is the mediating parties that are the decision makers and wield the "power". The mediator is not "deciding" anything. Mediation includes a wide range of options and affords the parties the opportunity to craft a settlement that addresses their particular interests and circumstances. Presumably that is why the parties agreed to mediate in the first place. So how do we as attorneys and mediators assist the parties in constructively exercising their power to reach a settlement?
Separate caucusing, with each side situated in a separate room, is commonplace these days. Of course, it is important to recognize that the mediator knows less about your case than the parties and their counsel. Thus, on occasion, it makes sense for the parties to sit around the same table in a joint session to exchange information. Direct communication between the parties may assist the parties in identifying and understanding the precise facts and issues in dispute. Naturally, if a party will be speaking during the joint session, that party should be well prepared.
Sometimes a separate meeting involving the mediator and counsel is also productive. A good mediator understands when such modes of direct communication might be productive and discusses the feasibility and logistics of proceeding in this fashion with the parties and their counsel.
It is important to set the right tone for the mediation. Hopefully, the mediator can communicate to each side that the other side is interested in settlement and willing to listen to opposing viewpoints. An angry party is much less likely to settle if they perceive the other side is uncompromising and unwilling to listen.
Parties need adequate information to make informed decisions. The information may come from your side of the table. Most often the other side also provides information. Accordingly, furnishing the other side and their decision-makers with impactful information well in advance of the mediation is very important. Additionally, the mediation presents a further opportunity for the parties to exchange information in a confidential setting. Withholding information does not usually produce the desired result. Also, it is important to realize that it is the other side that must be convinced of your case--not the mediator. Try to empower the other side by giving them the information they need to make informed decisions.
Empowering the parties also means understanding the process of negotiation and not overreacting to offers and demands from the other side. Mediations commonly start off with demands and offers that "test the waters". Negotiators almost always leave themselves room to negotiate. A "bottom line" approach is not recommended. Each party should understand the negotiation process and remain patient. Many cases resolve later in the day after the parties were seemingly at an impasse. In some cases, a follow up mediation may need to be scheduled.
While a mediator's proposal is often a useful tool to resolve a particular matter, it is important to note that this tool must be used very carefully. This is especially true if the table is not properly set for such a proposal. For example, if the proposal is presented too early, there is significant risk one or both parties will not accept it. Ideally, a good mediator will have some degree of confidence that both sides will accept the proposal before it is presented.
At the same time, it should be recognized that a mediator's proposal is disempowering to the parties from the standpoint that the mediator is proposing the terms of settlement. The proposal may succeed because the parties have confidence in the mediator and are willing to be "directed" towards a settlement. But empowering the parties first to attempt to reach a negotiated resolution is the preferred approach.
Mediation is a process. The parties should be encouraged to keep an open mind. They are the actual decision makers. The parties are most empowered when they exercise patience, perseverance, and display the willingness to compromise.
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