Many attorneys, even those with extensive litigation backgrounds, often harbor real suspicions about the value of mediation for their clients. Part of the problem is that they are simply unclear on how the process actually works, what is expected of them and the precise role the mediation professional will take in facilitating resolution.
A useful way to clear the air of such uncertainty in advance of a session is for the mediator to conduct a conference call with the attorneys representing the parties to the dispute. This helps familiarize the players with what will occur and how they will be expected to participate in the process. This is especially valuable in situations where the mediator has not had prior experience with one or more of the lawyers.
The conference call itself can take the form of a simple 10 or 15-minute discussion regarding the specifics of the mediator’s philosophy and approach. Even attorneys who engage in mediation processes often will likely find this of great value, considering the fact that each and every lawsuit or dispute mediator has his or her own style.
In addition to logistical housekeeping matters, it makes good sense for the mediator to convey in no uncertain terms that regardless of what goes on during the session, the decision whether or not to settle the dispute is their client’s alone. Reinforcement of this key principle of mediation can go a long way toward alleviating the unease many attorneys have that they are in some way ceding too much control of the case.
In advance of any mediation session, it is important to underscore to participating attorneys that their side will be subjected to detailed, sometimes difficult lines of questioning reflective of the complexity of their dispute. The very foundations of their positions will be tested in order to get to the heart of the matter. However, it is critical that the mediator assure each party that the other side is being grilled in a similar manner and that the intended end product is a comprehensive outlay of essential information, some of which had perhaps never before been revealed.
Perhaps the most useful point a mediator can drive home during a preparatory conference call is to continuously stress the concept that the final outcome rests with the parties themselves. Though the mediation professional will work hard to unearth important considerations, suggest solutions and bring the parties closer to agreement, each side retains the freedom to abandon the process at any time.
With the aid of some simple, pre-mediation preparation, much of the fear engendered by moving outside of traditional litigation can be eradicated, paving the way for a truly productive discussion. Whether your client’s dispute is factually or legally complex, involves multiple parties, or is a relatively small matter that seems to be stalled in the resolution process, chances are strong that a skilled mediator can help bridge the gap and facilitate an effective, lasting resolution.
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