Counseling Your Client    
Counseling your client on the use of mediation...

“I was ruined but twice: Once when I lost a law suit and once when I won one.”

Voltaire

Some cases just will not settle without a neutral third party, a mediator, to facilitate the interaction of parties in dispute.  When the time and cost of resolving issues is prohibitive, or ongoing relationships should be preserved, a mediator can help parties overcome impediments and reach an agreement.  In addition, since participation is voluntary, clients stay in control of the process and have ownership of the outcome.

If you are considering use of mediation, have the client ask the following questions. If the answer is “yes,” to even one question, mediation may be your best course of action.

  • Do you need to resolve this dispute rapidly to return as quickly as possible to managing your business?
  • Is the cost in time and money making this lawsuit impracticable?
  • Do you want more control over the outcome of this litigation?
  • Is the best outcome of this dispute something a judge can’t give you?
  • Is this dispute destroying a long-term relationship?
  • Are emotions, lack of trust, and/or unrealistic expectations blocking the resolution of this dispute?
  • Do you require confidentiality rather than a public trial?
  • Is the presence of multiple parties making this dispute too complicated to negotiate?

What is mediation? 

Mediation is a voluntary, confidential process used to resolve disputes and conclude difficult negotiations.  The process relies on the use of a neutral third-party, a mediator, to facilitate a negotiation between disputing parties.  While the mediator facilitates the process, the parties remain in control of the outcome.   Through joint and separate meetings, the mediator helps the parties—

  • work through the emotional content of the matter
  • take a realistic view of the situation
  • understand their own needs and interests
  • consider creative solutions
  • communicate offers and provide assessments to the opposing side.

When to Use

Disputes may be difficult to resolve for many reasons: strong emotions, unrealistic expectations, limited focus on the possible outcomes, poor communication, lack of trust, or lack of information. A mediator can help parties overcome these impediments to reach an agreement. Most of the country’s largest companies use mediation to help resolve disputes. Mediation saves not only the time and expense of a trial, but often produces an agreement that is more satisfying to the parties—and more likely to encourage compliance.

What the Process Entails

Most mediations begin with written submissions by the parties to the mediator.  The parties then meet with the mediator in a joint opening session followed by private caucuses and “shuttle diplomacy” by the mediator.  These meetings may last from a few hours to several days.  If the matter takes more than a day, progress can often be made with subsequent telephone conversations.

Often, what people need in seeking help to resolve a dispute is someone who has the patience and perseverance to see a difficult conversation to its end. They need someone they can trust, whose judgment will assist them in assessing their situation, and who has the negotiation skills to achieve an agreement. Steve’s commitment to each client is that they will be heard, respected and assisted in reaching an informed, realistic agreement.

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