Publications - Getting Your Opponent To Mediation

Parties and their attorneys often ponder the question of how to get their opponent(s) committed to the mediation process. One way that involves no loss of face is for one party to contact the mediator. The mediator then contacts the opposing side. Through questioning of and discussions with opposing sides, the mediator may discover specific conditions under which the parties will be willing to negotiate with one another. These conditions might include issues regarding the timing or location of the mediation sessions or may include specific discovery issues that one side needs to resolve prior to coming to the bargaining table.

During the pre-mediation back-and-forth with the mediator, the mediator can explain her role of neutrality and impartiality; the parties can agree about how information about the case will be collected and/or shared. The parties can agree about the procedure that might be used to conduct the negotiations, the parties can discuss and agree about the limits of confidentiality of the mediation process and the parties might even agree about the possible form of a written agreement if the parties agree to settle at mediation.

Some attorneys find that dealing directly with their adversary regarding mediation, or any aspect of the case, is the best approach. Perhaps there has been a long-term professional relationship between the parties that is collegial and a phone call to opposing counsel is the best approach to take.

There are times, however, the parties find it very difficult if not impossible to broach the subject of mediation with the other side. In these situations, a mediator can be useful as she has no adversarial role with respect to anyone involved in the process. The only role of the mediator is to assist the parties in resolving their particular conflict. The mediator can encourage involvement in the process and can generate trust in the process.

In many situations, the earlier one party “blinks” the better. If a mediator enters a dispute in its early stages she can often prevent extreme polarization of the issues or help the parties avoid the intense emotions that arise in the litigation process. Injecting mediation into the dispute early also allows the parties to “dialogue” with one another regarding settlement and other issues. This makes the negotiation process, once mediation is convened, much easier.

It is indisputable that litigation is costly. Attorneys owe it to their clients to explain the costs that lie ahead and to discuss with their clients the pros and cons of making settlement overtures, including the invitation to mediate.

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