So, you find yourself grappling with a difficult case, one that you believe could be settled short of a trial or litigation.  Or you find yourself in a negotiation that should be running smoothly, but for some reason (either known or unknown), the matter and the parties have become stuck.  What are your options?  In matters that are already in litigation, moving the case forward to trial is always an option; as is breaking off negotiations in the matter of business deals. But is this the best option for your client?  And, might there be better and more effective alternatives to these options?  One option might be mediation, but how do you determine whether this is the right alternative?  This article will provide you with some questions to ask yourself to help you determine if mediation is the right choice for you and your client.

To start it is important to be clear what mediation is, and what mediation isn’t.  At its essence, mediation is “facilitated negotiation.”  Mediation is defined as: "[a] process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” [1].  A mediator (or a team of mediators in some settings) is a trained professional who will use a number of strategies and techniques, combined with professional judgment, to assist the parties to reach their own agreement.  A good mediator will be neutral and impartial in their work with the parties, and except in some specific instances, the process is entirely voluntary. Although the parties may negotiate a binding agreement, the process is non-binding, and the mediator does not make a decision in the matter. One of the advantages of mediation is that the mediation process is confidential, [2] and covered by a number of legal privileges [3] that protect mediation communications. As a result the mediation process creates an opportunity to have an environment conducive to a negotiated settlement.

The central question you need to answer: Is the case or matter appropriate for mediation? Mediation is not a panacea for all disputes, and not all cases are good candidates for mediation. The following are some of the considerations that you and your clients should evaluate before deciding on seeking out a mediator. (Note: A good mediator will discuss these issues with you in the event that you call them; during the intake process, they can sometimes be a valuable resource in helping you make this determination).

These questions should be applied to all parties to the dispute:
  • Are the issues (legal and otherwise), and parties to the dispute clearly defined and identified?
  •  Are all the parties necessary to reach an agreement willing to participate in the mediation process?
  • Are all the parties necessary to reach an agreement willing to negotiate in good faith? (“Good faith” meaning: are the parties willing to share information open and honestly, willing to listen to the other party, in possession of some flexibility and willing to compromise, etc.).
  • Would the parties benefit from an expedited resolution to their issue?
  • Would the parties value confidentiality in the process and the settlement?
If the answers to the questions above are “yes” then the matter may be appropriate for mediation. The questions are not exhaustive and there are other possible considerations, such as whether the issues involved are concerned with precedent, and important principles are at stake. It can also matter sometimes if the parties have unrealistic expectations with regard to the strength of their case, or amounts they are expecting from a jury award or otherwise.  There are still other situations in which one or both parties are simply not ready or willing to negotiate in good faith or to settle the matter, and desire for the conflict to continue.  In those cases, mediation is likely to not be a viable solution.  Despite these limitations, mediation still proves to be a valuable tool to resolve disputes, and a conversation with a trained professional mediator may be a good place to start to determine if your case might be appropriate for mediation.



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