What do you do if you want to resolve conflicts through mediation?

Have a game plan for what you will do if the mediation fails. That will help you effectively weigh risks and also give you the confidence you need to negotiate with knowledge of what comes next.

Choosing the right mediator is indeed crucial in the amicable resolution of conflicts. A skilled mediator understands the potential consequences and risks involved in more formal methods like arbitration and litigation. They can help parties navigate through the conflict in a neutral and unbiased manner, facilitating open communication and exploring creative solutions. By considering the expertise, experience, and approach of a mediator, parties can increase their chances of reaching a mutually beneficial resolution.

In my experience the best mediator for any given dispute is someone whose opinion the parties (and lawyers) will respect. In some cases that's a retired judge; in others it's a subject-matter expert. Don't choose a mediator who you think will fully support your case - because mediation is a voluntary process, you run the risk that the other party "shuts down" and ends the mediation early if they feel the mediator is no longer neutral and has become an advocate for your case. Finally, be careful about agreeing a mediator you know nothing about - ask around, or ask for a couple referrals, before agreeing to someone you've never worked with before.

Talk to others who have worked with the Mediator you’re considering about their experience with the Mediator; the Mediator’s style, whether the Mediator seems biased, even implicitly, toward or against certain types of parties or claims, and whether the Mediator has generally been successful in helping parties resolve their disputes.

Choose an accredited mediator (or one working towards accreditation) and have an informal call to arrange a MIAM- the initial information and assessment meeting. There are different sorts of mediation including Child inclusive, where a child of 10 or above can be invited to share their views confidentially with the mediator. If they want any information then to be shared, this is done in a separate session with the parents and can be useful in helping them make decisions. Mediation is not suitable for everyone and the mediator will assess if it’s right for you and will help you consider other options that are available.

Be ready to try the case. There is no more powerful negotiating “technique” than being able to clearly and effectively communicate to the other side that while you are there to work it out, you are perfectly willing to step away from the table if you don’t get an offer you can live with. I’ve seen too many lawyers assume the case is going to settle and so they haven’t put the work into preparing for trial. They are ceding leverage to me every time.

Be prepared to share information that will help the other side be ready to settle. Often, lack of information is a major impediment to settling.

I came up with folks that picked up phones, reminded the other side the commbications were confidential, confirmed it with letters and made offers and invited dialogue. Mediations are to often admission that depsite bewing highly educated, the lawyers are oor communicators. Before mediation is considered, look at why it's needed and what if anything can be done to settle the dispute(s).

A mediation is not a trial. It is a pointless exercise to prepare as if for a trial. The mediator has very little interest in attempts to persuade him/her of the merits of the case. By the time you come to mediation, you have probably already exchanged views in correspondence with the other side about the merits of the case, so it is unlikely you are going to persuade them. However, preparation for the mediation is key. Get a good grasp on the strengths and weaknesses of your own position, but most importantly, try to get to grips with what you really want/need from the process and what the other side might really want/need. Come prepared to listen very closely to what the other side is saying.

My effort during meditation is to try and engage the opposing party through the mediator to see us as a partner to work with to try and find a resolution. Just for today let’s work together. As defense counsel I find most plaintiffs want to feel engaged and heard. When they are valued in the process they work to find and end they can accept.

In advance, each side should detail the issues outstanding & mediation should address those issues in a logical order. I also would never permit a client to participate in mediation without first sitting down to discuss all of the issues & discuss whether mediation occurs face to face or in separate rooms with the mediator going back and forth between rooms. I would also be very careful about putting a critical item on the table until the other side has shown good faith on other issues in dispute. As an example, your client really wants to keep the marital home, but by telling the other side that information, the other side may then try to extract an unfair exchange knowing how important the house is to the deal for your client.

It is crucial to have a person or representative endowed with full authority present during mediation. Their presence ensures swift decision-making, eliminating delays caused by the need for approval from other sources. Additionally, I obtain agreement from the opposing counsel before mediation, stipulating the presence of their adjuster. It's not enough that the person be available via phone. This ensures that the adjuster hears the strong points of our case directly from our perspective, preventing distortion of information through their counsel’s lens. In person participation in mediation helps the opposing party fully grasp the extent of their risk. In some cases, this can be the difference in success and failure in mediation.

Be prepared to be there all day. Real settlement discussions don’t begin until several passes and both parties are willing to make meaningful concessions.

Beware of the opposing side using the mediation as a masked deposition in an effort to gain information that will add in a planned future litigation.

In mediation, generating and evaluating options is vital. I brainstorm various solutions collaboratively with the client before we even start the mediation, fostering creativity of mind. This sometimes allows clients to get themselves out of the mental rut they have been obsessing about for days, weeks or months. Then, I discuss each option with the client for feasibility, fairness, and impact. A good mediator will facilitate this process, guiding parties through trade-offs and compromises. However, I do not rely on the mediator to do this on their own. I advise my clients to keep their mind open and do not take offense to any proposals. Attaching emotion to a particular proposal may prematurely eliminate a viable path to resolution.

Manage expectations well in advance so that you do not need to spend time changing hearts and minds in your own camp during the mediation.

Since mediators do not decide or advise, specific expertise may make it more difficult for the mediator to keep an open mind. While the dispute will have strengths and weaknesses the underlying cause may be unconnected with the legal merits

Durante el proceso de mediación debes mantener la confidencialidad de lo tratado en las sesiones de mediación. Cuando finalices si logras un acuerdo y se eleva a público ante notario o se homóloga por el juez ya podrás hablar de dicho acuerdo

Memorializing your agreement in a written document often occurs after the mediation is over, and can take many weeks. That delays the final resolution and can lead to further, prolonged negations over settlement agreement language. So try this instead: negotiate the non-monetary terms before the mediation. Start by sending a draft agreement to the other side several weeks before the mediation, leaving blanks for the final settlement amount. This way you can resolve open issues with the help of the mediator, if needed, and sign the agreement at the mediation. If that’s not an option, the parties should sign a term sheet to memorialize all the material terms at the mediation.

Extremely important that any settlement agreement reached is accurately reflected in writing by the mediator in case there’s a dispute when final settlement documents and releases prepared

The goal is to achieve a satisfactory result. Make sure the agreement states what it needs to say and make sure your client understands the ramifications of the agreement. Also make sure the agreement is a "4-corners" document that does not create an unwanted precedent and precludes additional liability.

In divorce mediations, choose your battles wisely. Family law cases frequently settle in mediation. Identify the issues that truly matter to your client and prioritize them. Not every point needs to be a battleground; focus on what is most significant for a smoother mediation process.

Often a Mediation is the first and only time a lawyer from the opposite side of the case can speak to the opposing party directly. Take this opportunity to clearly explain your case in the simplest terms. Acknowledge their reasons for bringing the action/opposing the claim, and convey a personalized approach to the day from the outset, even if this involves an opposite view. It helps the other side to know why you take the position you take.

Drawing from personal experience, navigating mediation agreements in emotionally charged contexts such as divorce with property and custody disputes underscores the importance of effective follow-up. I've advocated for clients embroiled in such familial conflicts, ensuring adherence to mediated agreements despite the intense emotions involved. Despite the unique dynamics and heightened emotions inherent in these areas, the principles of follow-up remain fundamentally consistent. Effective follow-up on mediation agreements hinges on treating them as enforceable contracts. By addressing breaches promptly, and proceeding with enforcement when necessary, parties can uphold the integrity of their agreements.

I find that it is rare that all settlement terms are agreed upon and finalized the day of mediation. It is important to bring up all terms of settlement that are not just monetary. Non-disclosure terms, indemnification clauses, and lien affidavits can get overlooked during mediation as the parties focus on the numbers. Make sure to include these terms and compensation for them early on so they do not throw a wrench into the settlement you worked so hard to secure at mediation.

Following up on the agreement includes not only being diligent in completing your work but following up with your client. Proper documentation, filing of documents in a timely manner, and distributing all relevant materials. It is important to also follow-up with your client to reiterate the terms of the settlement and express to them the benefits to them in settling vs taking a case to trial.

On ne peut parler de recommuniquer après jugement ou collaboration future dans le cas d'un cas qui est aux normes du travail. Si le jugement n'a pas été respecté, la seule personne avec qui il faut communiquer dans ce cas est le médiateur.

Mediation is a wonderful, flexible tool. Some people have fixed ideas about what mediation looks like but you can mix it up. You can choose whether you want to mediate in person, on the phone or remotely via platforms such as Teams or Zoom. You can set a time limit for the length of the mediation. You can dispense with the opening session (which can be useful if the parties have really fallen out). The vast majority of disputes settle at mediation or as a result of mediation. The parties can control the process and agree terms that wouldn’t be possible in court. And sometimes mediation can heal relationships that the litigating parties think have fallen apart…

Don't worry about travel arrangements and costs if you cannot easily attend in person. Like arbitrations and courtroom trials, mediation can be done in person, hybrid, or fully remote on Zoom or another platform. Breakout rooms can be set up for any group of participants as needed. The mediator can move back and forth from room to room as negotiations are happening.

As the mediator, starting with an agreement (even if a pre-mediation agreement) lends to momentum in the mediation. Take the low-hanging fruit first, then return to the thornier matters. Do not be rigid in the order of terms, by shifting the focus and order of march, parties may come to accord more rapidly. By reframing a party's argument or conditions (without being condescending or sarcastic), you can lead to a mutually beneficial outcome. Remember that everyone KNOWS each other (except you) sometimes the attorneys can be more entrenched than their clients, this is particularly in rural settings that can be particularly challenging.

Remember that the mediator’s role (in England & Wales) is usually to facilitate discussion and help to try to narrow the issues between the parties. They are not there to determine a dispute. Generally, mediation can be a positive process and it is also flexible (e.g it can be held in person or remotely via video conferencing). Potential benefits can include: - reducing the costs and time incurred in dealing with a dispute; - allowing parties to have input into how a dispute is resolved; - avoiding the need to issue court proceedings or attend a trial: and - resolving a claim.