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FACTORS THAT DETERMINE WHETHER MEDIATION WILL BE EFFECTIVE, PT. 2

In our previous post we discussed factors that could result in the mediation process not working. In this post we will cover the opposite end of the spectrum—factors that when present could lead to a successful outcome in mediation.

The first is preparation on the part of both the participant as well as his or her lawyer. This includes going through the mediators instructions. In addition, making sure a party entering the mediation process has reasonable expectations regarding the negotiation that may be needed to do to reach an agreement, greatly increases the odds that the matter will be settled in the course of the mediation.

The willingness to negotiate and reach agreement will be easier for people who want to move forward and can forgive their adversaries. Along these same lines, going into the process with the attitude that one will reach an agreement in the course of mediation will make it easier for an agreement to be reached. That motivation may be established in part by completing a risk analysis that compares the financial and emotional costs of litigation versus mediation.

Sticking with it can also make the difference between reaching a settlement and having to go to trial. Accordingly, those who continue to work on a resolution despite encountering situations where it seems impossible are much more likely to find that the process will work for them.

Last, it is important to acknowledge the bearing a mediator’s experience can have on the outcome. In many cases selecting a mediator who has handled medications in the past and has undergone mediation training, can improve the likelihood of success.

When it works mediation is good approach for a variety of reasons. The speed at which a matter is resolved along with the money saved often helps to move people in that direction.

Source: Mediate, “Minimizing the Litigation Risk in Mediation,” Benjamin Seigel, July 2014

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