The Anatomy of a Mediation...

Updated: Aug 7, 2019

... is whatever you want it to be.


Mediation by its nature is a creative process - the parties’ process. As such, that process can and should be adapted to suit the need of each particular dispute and its stakeholders.


The following post includes tips for parties to consider in order to encourage a mediation that is efficient and in line with their needs.


1. Mediation belongs to the parties - not the mediators.


In the facilitated negotiation process that is mediation, it is the role of the mediator to act as a neutral, guiding the parties through an exploration of the issues presented, while helping generate agreeable solutions. The mediator may also provide insights on the legal and factual strengths and weaknesses of each side’s position.


The shape of this negotiation can take many forms and should not be defined by the mediator alone. For example, if parties feel strongly that joint session will be futile they may request the mediator skip this step. Likewise, you can skip caucusing.* Talk to the mediator in advance of the session to get her up to speed on the negotiation history and what you want to get out of the dialogue. But once you arrive at the mediation, you are not required to separate. For some cases, it's more fruitful to stay together and hash it out in a constructive manner.


* Generally, I do think it is best practice to convene parties at the outset of the mediation. Even if you've already assumed adversarial roles and are sick of listening to one another. Here, a mediation should help in constructing a dialogue between you. More on joint sessions and presentations therein in the next post...


2, Learn to leverage the mediator but don't play games.


At the end of the day, the mediator has no power to end your dispute. They should help you find that path to closure, but the decisions are all yours - not the mediators.


Many parties feel that they have to hide the ball from the mediator, game the mediator, or make their pitch to her in order to have a good mediation outcome. All untrue.


The mediator is a negotiation partner for both parties - impartial to the decisions made, there to encourage productive discussions that lead you closer to resolution. Stretching the truth on whether you have authority, settlement parameters, or missing information usually only result in delay. Delay costs more money and can result in a worsening of already tenuous relationships.


Ex parte communications with the mediator prior to the session are a great way to express to the mediator what you will need from her once negotiations start. The more information you are able to provide the mediator in advance of the session - whether by briefs or informal conversations, the better prepared she will be to help you both on game day.


Chances are that if you feel like you need to game the mediator whom you've hired, you've hired the wrong one.


3. As mediation in international contexts grows, online mediation should be leveraged more often.


Did you bristle when you read that? How is it possible to develop connections and foster an environment conducive to settlement online?


True, the dynamic is different online than in-person mediation. And perhaps the online venue is not appropriate for every case. But it makes a tremendous amount of sense from a business perspective and a quality of life perspective for many. No travel means less time lost, less money spent on flights, hotels, etc.


Years ago, when I was still in-house, I developed a pilot program to utilize online mediation in the resolution of a small group of disputes. At the time, the technology we utilized was a bit challenging, but the concept was well-received. Especially when one party was saved from endless time away from desk and family. There were no complaints over lost opportunities for interpersonal connections because we specifically trained people on how to build rapport online..


If this is a sensible dispute resolution mechanism for your dispute, find a mediator who will facilitate such a discussion for you.


In conclusion, this post is intended to give parties ideas to drive efficiency and creativity in the mediation process, remembering that it is the parties' process in the end. The next post will focus on the joint session, what to do and what to avoid...