4 Tricks That Make Mediation Work

From Forbes.com

This article is by Richard Shore, an attorney who focuses on the resolution of complex, multiparty disputes through alternative dispute resolution and litigation. He is a founding partner of Gilbert LLP.

If your business finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom. Most lawsuits settle before judgment, and increasingly litigants are turning to mediation—negotiation assisted by a third-party facilitator —to resolve their disputes. They hope mediation will be faster and cheaper than litigation and yield a better result.

But the potential benefits of such alternative dispute resolution are often undermined by the participants entering the process with the same litigation-oriented, adversarial mindset they meant to leave behind. Here are four counterintuitive strategies that harness the strengths of mediation rather than treating it as litigation light. They may not be traditional, but properly employed, they work.

1. Let the other side pick the mediator.

Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time consuming, and adversarial. Avoid this opening skirmish by letting the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, and introduces you to new mediators you might actually like.

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Permalink Reply by John C. Turley on July 29, 2012 at 10:45pm

In corporate negotiation, I was trained to take on the toughest issues first rather than settle the minor ones at the outset. I appreciate attorney Shore's different perspective. The obverse side is that the major issues take more effort and engagement by all parties;however, once they are settled, the rest is downhill. By discussing the minor issues first, it delays the inevitable showdown on the key positions and the needs of the disputants on the points that really matter. The further reasoning is that the small points may be easily conceded which tends to weaken one's strategy and hand when the big issues are finally discussed. The other party gets to see you in action early which may be used against you later in the session. It is all about strategy.

I value this article. I see where perhaps a few points may be checked off the list;however, it all has to do with the climate of opinion as the mediator assesses the actors and dynamics at play.

JCT

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Permalink Reply by Andre Jackson on July 31, 2012 at 12:50pm

I'm also not convinced if "Deal with hard issues last" is always the best approach.

On one hand I can see how dealing with less difficult matters first can create a good/better working environment, break down communicaton barriers and help establish trust.

On the other hand not addressing a hard issue can create the proverbial elephant in the room. If a core issue is not addressed appropriately at the outset it might create emotional barrieres that prevents disputants from working effectively. It could result in an "issue highjack"...

Maybe it's important to note that Shore distinguishes between "hard" issues and "key" issues. He does recommend to address key issues first. I'm not sure what he would suggest if the key issue was a hard one?

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Permalink Reply by John C. Turley on July 31, 2012 at 7:09pm

After reading Andre's excellent comment and with further reflection, my position is firm on tackling the hard issues first. By stating my position, it sounds like I am in dispute! I have been influenced by my Creighton education, Pepperdine and Harvard reviews, as well as the works of Ury and Fisher,Colin Rule, and many other ADR notables in the field. I add my corporate experience of 30 years and two years of ADR case work. In Michigan, I have met and learned from outstanding practitioners such as Zena Zumeta and Tracey Allen.
As I go forward, I will incorporate Attorney Shore's ideas into my quiver of skills to use according to the environment and the situation. This is not to say that I am right and that he is wrong. It means that as I mature and come into my own as an ADR specialist in negotiation, I will respect his work as I promote my value to my clients and render help to others based on sound principles and reasonably right thinking.

JCT