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A Decided Approach to Mediation

Parties come to mediation to settle their dispute. At some point in the process, they will face a decision problem: whether to settle for an amount or on terms finally offered or demanded, or proceed with their alternatives – litigation, arbitration, or other business or professional options.  As mediator, I respect parties’ decisions and, at the same time, work to maximize the likelihood that they will indeed decide to settle. 

To that end, I seek to learn: “Why have these parties been unable or unwilling to negotiate a settlement?  What makes resolution difficult? Conflicting business objectives? Asymmetries of information?  Lack of trust?  Bad blood? Desire for revenge? Dysfunctional communication? Entirely different understandings of what happened? Simple failure to focus on realities? Widely divergent analysis of legal issues, rights, risks, or damages? In many high stakes cases, negotiators’ bargaining styles and dollar targets require a mediator to locate the settlement zone.  Sometimes, mediator access to confidential information about parties’ interests and priorities uncovers a path to solution.

As mediator, I seek to structure the process to fit the dispute – to address barriers to resolution.  Some mediations move easily from an initial conversation with counsel to a “day of” mediation session and swift resolution. However, in high stakes, legally complex, or otherwise challenging cases, focused attention to process and preparation are critical to success.  My practice is to receive written submissions on disputed issues and both sides’ assessments of interests, risks, and barriers to resolution.  I then conduct private preliminary meetings for insight into decision-makers, personalities, interests, and bargaining styles.  Particularly in business disputes, it can be fruitful to explore business solutions or terms unavailable through litigation or arbitration. Counsel are free (indeed encouraged) to contact me to raise any questions or issues.  I often contact counsel with questions or suggestions for making the mediation successful. 

On the “day of” mediation, joint session discussion of legal or factual issues can sometimes be productive.  However,  in many high stakes, hard fought cases, beginning with a substantive joint session is unnecessary and unhelpful. DIsputed issues will have been covered by written submissions or in pre-mediation meetings, or can be discussed in caucuses. Sometimes though, no settlement will be reached until the parties speak directly.  

In high stakes cases where highly competitive bargaining strategies render settlement elusive, I’m committed to promoting movement on dollars and terms, and seeking paths around impasse. Where the reason for impasse is widely divergent predictions of court or an arbitration outcomes, I encourage each side’s rigorous analysis of significant uncertainties.  In some cases, neutral evaluation may move the parties toward settlement.  In my view, if evaluation is requested and necessary, a mediator must be competent, honest, and skilled in its delivery.  Most important: a mediator’s views should never affect their commitment to neutrality in facilitating negotiation toward settlement.  

 

I am comfortable and experienced mediating via remote technology (Zoom) or in person.  

Click to see descriptions of selected cases mediated.

 

Click to see a selected list of mediation related articles and materials written and videos produced. 

Click to see a selected list of mediation CLE workshops taught and presentations made. 

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