Perspectives from a Mediator/Arbitrator

Monday, May 08, 2006

Mediation tip #5 - Getting Agreement - Part 2

Well now that you have the advice not to be a Zax - how do you get to an agreement? There is simply no single, proven way to move parties from positions to resolution. Almost always, it requires compromise by both parties, but even that is not always necessary. I have been involved in mediations where one party intends to have the other party simply agree with its position - there is no other alternative that will be considered - and I HAVE SEEN THAT WORK! I would say, however, that it is extremely unlikely to work.

As a mediator, I tend to be quite evaluative, other mediators are less so. I will tell parties what the possible and likely outcomes are if the matter proceeds - often without even being asked for my view. I think that one of the most important (and underappreciated) aspects of mediation is momentum. If I can have the parties moving towards a settlement and believing that a settlement is possible, then I have a much better chance that I will achieve that settlement. It is my experience that most parties want to settle - the litigation process is not one that most people enjoy and they are happy to be out of it.

One important tip is to have your settlement documents ready before the mediation begins. I have seen a number of mediations fail because of the length of time it took to prepare settlement documentation. Once the parties have settled, they are ready to sign the deal - do not delay in getting it done. I like to see the document prepared quickly (ideally this is done jointly by the lawyers) and then taken to each of the litigants for review. Once reviewed the changes should be quickly made. If there is a party that is likely to be reluctant to sign - have that party sign first. I have been involved in a number of mediations recently where an individual seemed to enjoy the fact that everyone was inconvenienced by the length of time it was taking that individual to decide whether to sign.

Before leaving this tip, I want to go back and share with you one "trick of the trade" in my next entry - Mediation tip #5 - Getting Agreement - Part 3 - One of the solutions when you get stuck!


Post a Comment

<< Home