Mediation is a consensus-driven process for resolving disputes prior to litigation or anywhere along the life of a lawsuit.  Unlike trials and arbitration, success in mediation depends entirely upon the parties agreeing.  Hence, clients have greater control over their own fate as well as the ability to craft solutions that a court, arbitrator or jury may not be able to compel. Thus, while clients are usually represented by counsel in mediation, clients often actively engage in the mediation dialogue and designing possible solutions.

Some court programs direct parties to mediate and choose the mediator as well.  However, parties remain free to either reach an accord or continue with their dispute. 

Beyond court-sponsored programs, the mediation process begins when adversaries agree to mediate and agree upon a neutral.  Here, the choices and considerations are many.  Prior legal or judicial experience, business acumen and subject matter expertise may matter, along with the mediator’s record and interpersonal skills.  Because mediation success requires consensus, a mediator’s effectiveness is often tied to her or his ability to help everyone weigh realistic options and tradeoffs as much as forecasting the outcome of an uncertain litigation path.

In most jurisdictions, mediators need not be licensed attorneys, as they neither act as attorneys nor provide legal advice.  However, some advocates prefer an attorney mediator to help assess the risks and rewards of litigating further.  Sources of information about mediator candidates include referrals and references, articles and profiles, the mediator’s website, and direct calls with the mediator about their background and approach.

Court rules typically prohibit disclosing statements made and information shared during the mediation process in the underlying litigation.  These rules allow the parties to speak candidly and eliminate misunderstandings as to core facts and interests.  Hence, even short of a full resolution immediately, mediation allows everyone to substantially narrow the scope of most disputes before the parties incur significant sunk costs (both direct and indirect costs of litigating) and alternatives evaporate.  Accordingly, many counsel and clients are mediating sooner in the life of a dispute in order to capitalize on these opportunities.

Mark LeHocky

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