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Pointers for ensuring an effective mediation process

Mediation can be a valuable process for resolving disputes and a great opportunity to avoid the costs and hassle of litigation in appropriate cases. But to be worth the time and effort, mediation must be efficient. A recent article in the Connecticut Law Tribune points out various factors that contribute to the effectiveness of the mediation process, and we’ll highlight some of those here.

One of the factors contributing to an effective mediation is that all the parties involved in the process understand its purpose, which is different than that of litigation. The purpose of mediation is not to see how strong one’s case is, but rather to reach a mutually acceptable agreement that reflects the interests of the parties involved. A mediation agreement which is one-sided will not be effective in the long term. To reach an effective agreement, parties need to understand and respect each other’s position on the issues and the objectives behind those positions. 

The role of a mediator is to help facilitate this process rather than to judge between their cases. The extent to which a mediator is able to do this impacts the effectiveness of the process. The best mediators are those who have the ability to manage the process so that parties stay engaged and open to creative and flexible solutions. Good mediators also have the ability to move the process along at an appropriate pace and avoid an approach that unnecessarily leads to deadlock. It can also help if the mediator has expertise in the area of law or industry at issue in the case.

Timing is important factor in the effectiveness of mediation as well. In particular, due consideration should be given to the respective benefits of seeking early settlement through mediation and waiting until sometime after the adversarial process has already begun to seek mediation.

Parties’ selection of the right representatives for the mediation process can also make a big difference in effectiveness. Some representatives are going to have greater authority, flexibility, and big-picture understanding of the dispute and the possibilities for resolution than others.

The ability to craft an effective agreement is critical for the effectiveness of mediation, and we’ll look at this issue in a future post.

Source: Ctlawtribune.com, “The Pillars of a Productive Mediation,” Eric W. Wiechmann, Dec. 16, 2014. 

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