Dispute Settlement Counsel

Mediation is frequently used to resolve disputes of all kinds – business, employment, negligence, medical error, probate, divorces – and the trend toward mediation is growing. Even litigators will tell you that they often end up calling in a mediator before going to trial to get the case resolved. It’s often a better alternative than going to trial, incurring additional costs for the client and risking an uncertain result that is out of the control of the parties and lawyers. Statistically, 98% of the cases filed with the courts settle, and many of those utilize mediation to settle it.

The critical distinction here is when the mediation occurs. The problem with utilizing mediation is not the process of mediation, but rather that the parties wait too long before they turn to the mediator.

Here’s a truth: The earlier in the life of the dispute a mediator is called in to work with the parties and lawyers to resolve the dispute, the more effective and beneficial the mediation will be.

There are several factors that favor early mediation: cost, time, efficiency, depth of resolution, preserving important relationships and preventing the draining of resources. The sooner the parties get to the negotiating table and work with the neutral mediator, the less the litigation costs will be. The earlier the mediator starts, the sooner the parties will reach resolution. Even in the worst scenario, the sooner it will be clear that they cannot resolve the matter through mediation; that information is also beneficial. Want to save yourself thousands of dollars, a couple of years and lots of stress? Get to mediation quickly.

The sooner the mediator gets involved, the better his chances to utilize one or more of three types of mediation, to the degree the situation and circumstances need them. These three types are evaluative, facilitative and transformative mediaton.

In evaluative mediation, the mediator’s role is to give a fair and neutral assessment of the strengths and weaknesses of both sides and both positions. Parties often employ case evaluators/mediators to provide this valuable and useful information and help bridge the gap between them. This tool tells them, confidentially and objectively, whether their notions and positions are correct and strong. It also tempers any unrealistic expectation or assessment that one side or the other may have subjectively made of its position.

This evaluative style of mediation is probably the only part of a true mediator’s skill set tap into when they wait until just before trial. After getting feedback from the mediator, the parties are probably both saying two things to themselves: 1. I wish I had this assessment 2 years ago, and 2. I’ve invested too much time, money and emotion to compromise or withdraw now.

Early on, the mediators still have the opportunity to help the parties facilitate a good settlement, and really explore the underlying interests of the parties, not just their positions. When the mediator has this chance to recalibrate everyone from their adversarial positions and focus them on interests and the future, some truly creative ideas and options for resolution can be explored and developed by the parties. But the deeper the parties go into the litigation and the adversarial nature of the dispute, the tougher it is to get them to shift their focus, work with each other and see the value of developing these options through some collaborative work.

So to get the greatest value from the use of mediation to resolve a dispute, the key is to get to it as soon as possible.

Next time: Transformative and collaborative mediation

2 Responses to “Mediation – Why it should be used early – Part I”