Several benefits are provided by early mediation. Disputes between opposing parties can be resolved behind closed doors in a matter of days, incurring minimal costs. This approach also affords flexibility, with attorneys able to pick the location, time of day, and highlight specific issues for coverage within the mediation discussions.
Yet despite the apparent advantages, mediation is the least popular path to conflict resolution. Often, mediation is often ignored in favor of years of litigation that costs precious time, money, and resources. But why is this the case? It’s mainly down to the lack of faith from one or both parties to negotiate without the knowledge provided by formal document disclosure or deposition testimony.
Helped by an experienced mediator, parties can exchange information before coming to a pre-suit resolution. Let’s take a look at how to facilitate this arrangement, potentially saving years of anguish in the process.
How do You Select a Mediator?
First, all sides must agree on the appointment. Each side should ask their colleagues about the skillset of the mediator in question, making sure they’re making an appointment that’s likely to end with a satisfactory resolution.
Next, both parties should work with the mediator to set out a protocol for exchanging information and documentation in a timely fashion. This is likely to be a negotiation in itself. Therefore, it’s a good idea to set an early baseline for not what both parties want to evaluate the case, but what they need to be able to make an accurate appraisal. Casting aside what’s not pertinent to the case can dramatically speed up the mediation process and keeps both sides focusing on achieving an outcome, rather than on information exchange.
Mediation Vs. Litigious Approach
Mediation is more business-like than litigation. Parties must critically evaluate what information they require to make an informed choice of either settling early or proceeding toward full-blown litigation. Counsel must also factor in the potential costs and exposure to their clients if they choose the latter path to resolution.
Once the scope of the pre-mediation has been agreed upon, it should immediately be committed to paper and signed by both parties. Its terms should be both clear and binding, to ensure the complete buy-in from both sides. While it should set out details of the timing of informational exchanges, it should also determine briefing intervals, including time for pre-mediation statements. These statements are critical as they are the first indication of the exact nature of the complaint, the law documentation that supports the claim, and which legal defenses can be made against those claims.
The Mediation Process Itself
After undertaking the above tasks, the stage is set for the early mediation itself. The date of which should be laid out in the protocol paperwork. Those who come to the mediation must have the authority to settle the matter; hence it makes sense to outline who those individuals will be at the time of drafting and finalizing the protocol. Opening statements take on an added importance within this process since it’s the first time each party will be unambiguously stating their position, giving each other a chance to weigh up the opposition arguments.
It’s wise for the mediator to take care of any terms and conditions of any resolution at the beginning of the process to avoid any eleventh-hour banana skins that could derail an agreement in principle. Items such as non-disclosures, payment terms, and nondisparagement clauses should all form part of the discussion. Similarly, all agreements made because of mediation should be immediately memorialized, avoiding any last-minute change of hearts or instances of “buyer’s remorse”. Maybe this process happens at the immediate conclusion of the mediation, before drafting a final piece later down the line.
Mediation Can Bring Swift and Economical Resolutions to Conflicts
As can be observed, the key to effective mediation is a commitment from both sides to find an acceptable solution. Many skip early mediation because it requires much heavy lifting at the outset. By investing time and energy upfront by negotiating protocols and satisfactory terms of engagement, mediation can provide both a swift and economical outcome for all concerned parties. All it takes is a leap of faith by each side to look for an early resolution to their dispute meaningfully.
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