Mediation is an important component of the civil justice system. Mediation allows a neutral third party who is in a unique position of seeing both sides to explore the strengths and weaknesses of the parties’ arguments, and perhaps suggest creative solutions to resolve the parties’ dispute. Although mediators have the power to persuade and cajole, they do not have the power to order the parties to do anything. Instead, it is the parties, and not the mediator, who are in control of resolving the dispute.
To maximize the effectiveness of mediation, the parties must first determine the appropriate time to mediate. Depending on the circumstances, mediation may be beneficial at the pre-litigation stage. However, if the parties contemplate an early mediation, there should be, at a minimum, an informal exchange of relevant information. Often times, mediation is most successful after limited discovery, including the depositions of the key witnesses.
2. Mediator Selection
The selection of the mediator is equally essential. In selecting a mediator, the parties must identify mediators with a proven track record as a neutral and significant substantive expertise in the area at issue. It is also critical that the parties seek references for any contemplated mediator.
3. Pre-Mediation Communications
In order to set the table for success at mediation, certain pre-mediation communications must occur, such as the pre-mediation telephone conference. During the pre-mediation telephone conference, the parties should discuss who will or should attend the mediation, and agree on the mediation process design, including the content and/or exchange of mediation briefs. Moreover, the parties should discuss whether there should be a joint session, and if so, the ground rules for any such session.
4. Be Prepared to Settle
To be successful, both parties must come to the mediation prepared to make a good faith effort to settle. Then, a skilled mediator can break impasses by employing creative strategies, such as bracketing, bifurcating key issues and/or making a mediator’s proposal. Then, if all goes well, and the dispute is resolved, the parties can sign a settlement agreement and/or settlement memorandum, setting forth the key settlement terms. With careful planning and preparation, mediation can and does bring positive outcomes and closure for the parties.
About the author:
With over 25 years of litigation experience, Theodora Lee serves as an arbitrator and mediator in matters involving workplace harassment and discrimination, wrongful termination, wage and hour disputes, board of director disputes, personal injury and real estate issues. She serves on the ADR panel for several Bay Area superior courts and has been on BASF’s Mediation Services panel since 2005. For more information about BASF’s panelists and the program visit www.sfbar.org/mediation.