Mediation: Getting the Most Out of It

Mediation is resolving disputes between parties, where a third-party neutral helps facilitate discussions, negotiations, and (hopefully) settlement. Mediation is usually voluntary and non-binding, unlike arbitration. Mediation is the best way to resolve a dispute without an expensive litigation process. Many in-house attorneys or their clients treat mediation as a second-class cousin of arbitration and waste this opportunity. They think that you can show up to mediate. Wrong! You need to know many mediation tips to ensure a positive outcome.

What is mediation?

The majority of mediations are voluntary. This means that the parties agree that: a) they wish to try to resolve their dispute, b) they would like a neutral party to assist them, and c) they have decided on the mediator. Mediation is possible at any stage of a dispute. It can even happen before a lawsuit has been filed. The decision on when to begin the process is based on several factors:

Uncertainty about the outcome of litigation.

The cost to litigate.

The desire for documents/facts to remain private (as opposed to having them made public at trial or motion practice).

The desire to “get things over with as soon as possible.”

Preserving the relationship between parties.

Mediating as soon as you can is the best tip if you have a chance of resolving the dispute. The litigation process is costly, uncertain, destructive, and wasteful.

Early mediation allows all parties to hear the other side (sometimes for the first time) without lawyers. It can be an eye-opener to a business client who believes the case is “a slam dunk.”

Selecting a mediator and format

It is crucial to choose the right mediator. It is essential to have outside counsel, as they will usually be familiar with the different styles of mediation and mediators. Consider the following:

  • Recommendations coming from a variety of sources
  • Your experience with mediators
  • The mediator’s reputation and experience.

You can also consider the “style” of the mediator

  1. Facilitative (guides the “process” and remains completely neutral).
  2. Evaluative (will make recommendations and assessments about each party’s position.
  3. Transformative.

Consider the “style” the mediator has a. facilitative (guides “process” while remaining completely neutral); b. evaluative (will make assessments and recommendations about the case or each party’s perspective); and c. transformative (facilitates and also tries to restructure/improve the relationship between parties).

Using evaluative mediation’s a good idea because the best mediators will “beat up” both sides and bring in their thoughts.

Who attends, and what is their authority?

In most cases, both outside and internal counsel attend. If the parties are severe, a senior executive from the company will be present. The person chosen should have an open mind and not be so firmly rooted in the company’s position that a settlement seems unlikely. Both sides should be respectful, friendly, and civil. They should be authorized to settle a case. This means that they can agree on things without needing permission. Mediation aimsMediation aims not to win the case but to settle it. The trial is the place for that. Mediation will end quickly if one or both parties refuse to compromise.

Everyone must understand the mediation process. Pre-mediation, several things will take place. Each party will submit a mediation statement outlining their perspective on the dispute. Each side is allowed allowed to ask questions of the mediator during mediation. Most mediators are open to discussions with both sides before the mediation. You can tell them about the terrain, settlement structures, differences in personality, etc. The better the mediator can do their job, the more information they have in advance.

Last but not least, make sure your mediation is confidential. Anything said or presented during the mediation cannot be used in court. It is best to get it in writing. Expect the following on the day of mediation

Introductions/Opening statements – most mediations start with handshakes and pleasantries. Then, typically, each side gives an opening information about their position.

Breakouts: After the opening session, both parties retire to separate rooms, and the mediator comes and talks with them. The mediator will then go and speak with both sides. Each side can fully explain their position, what they want/are willing to do for a settlement, and ask questions, obtain information, etc. The mediator may use these sessions to examine your case and its strengths and weaknesses. This is not a reason to be offended; the mediator will do this with the opposing side.

Joint sessions: The mediator can bring all parties together to discuss certain issues at specific points. The mediator may want to have the outside attorneys, the internal lawyers, or only the business owners meet with him to continue the discussion. It can be very effective, mainly when the mediator detects a possible settlement.

If the parties can reach an agreement, a finalizing session will occur. The mediator will gather the parties to say final words if they get into a deadlock.

Most mediations are one-day affairs. It may take a long time, especially if you are close to an agreement. Give the mediation the time and attention it deserves.

Strategy considerations

Each mediation is unique, but there are some common strategic considerations


Only mediate in person if possible.

Consider the confidentiality and privilege issues before you attend mediation.

Focus on your strengths and ignore the weak points.

Decide what you’re willing to give the mediator to work with. The more you share, the better they will perform.

Bring critical documents, that is, documents that support your position. Share these with the mediator when the time is right.

You should know what you expect from the mediator. For example, would you like the mediator to assist you in structuring a settlement? You may ask the mediator what they “think” your case is worth.

Remember that mediation is non-binding. This is not a court trial or arbitration. You are not required to settle your dispute. A bad deal may be the ultimate goal, but it is still wrong. Be prepared to walk away if necessary. Refrain from being bullied into accepting an agreement that does not work for your business.

Wait to put your coat on if your mediation ends with an agreement between the parties. Before anyone leaves, have both sides sign the contract. If one party has essential terms or conditions not raised or discussed at mediation, a resolution can be quickly blown out of proportion when writing the formal settlement agreement. Be sure to summarize all critical issues before you begin.

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