Whether there is a dispute or a pending litigation, it is in everyone’s best interest to mediate early on in the process. The advantage is the parties resolve the dispute on their own terms, voluntarily confidentially saving significant time and money for both parties.
Bringing in a mediator is an ideal situation as they don’t represent either party but are an objective 3rd party who structures and communications so both parties can quickly and economically resolve their dispute on terms that all agree upon.
I have seven step process that I have developed through both my meditation experience and Harvard University education:
1. Pre-mediation discussions with both parties
2. Mediator opening statement to explain how the process works and an introduction of all the parties to each other. The goal is to make the dispute the adversary not the individuals, setting the stage for a more respectful conversation.
3. The parties state their positions and the mediator confirms not only his understanding of the positions but ensuring that each party understands the other’s position. When each party feels that they have been heard, they are more likely to be open to negotiation.
4. The parties explore each others’ underlying positions clarifying individual interests, discovering where their interests coincide, leading to better outcomes
5. The parties brainstorm solutions to their dispute
6. The parties decide on the appropriate solutions and how to implement them
7. A written document is prepared, memorializing the parties agreement and then decide to make the document legally binding or not.
If you are an in-house counsel, insurance defense counsel, plaintiff personal injury attorney or business attorney or represent a party in a civil dispute, I invite you to talk. Whether or not we decide if mediation is right for you and your client, I am confident I can provide some insights on ways to settle your dispute economically and efficiently vs. litigation that can take years.