1. Why should I mediate?
Because it makes sense in most cases.
In ADR in Business (Wolters Kluwer 2011) a group of corporate users of mediation services wrote a chapter titled Making Mediation Mainstream in which they said:
Users of dispute resolution services of all types cannot ignore their vital role in ensuring that disputes that would benefit from an early resolution follow a path designed to increase the likelihood that mediation will be attempted.
Contracts of all kinds should feature multi-step dispute resolution clauses that include mediation at some stage of the process, usually prior to arbitration or litigation, or simultaneously with the commencement of litigation or arbitration but prior to them being employed. Numerous model multi-step clauses are available online and some companies have developed their own preferred clauses. Contractual clauses that include a mediation step enable both sides to avoid any perceived weakness that may be implicit in a proposal to mediate and represent good preventive lawyering.
Knowing where to find the right mediator is critical. Always seeking independently-prepared summaries of prior user feedback provides vital information about both the competency and the suitability of the candidate mediators.
There are many other activities [users] can undertake to enhance the perception of mediation as an effective settlement tool by others. For example, publishing a conflict resolution policy that favors early negotiation and mediation before litigating can make it a business practice to propose mediation, rather than be seen as an implicit weakness. Internal training programs within a company to enhance both management and in-house counsel awareness are also key.
Law firms are also users, often being the origin of a proposal to mediate. All the above applies equally, and sometimes more poignantly, to law firms. In particular, we appreciate it when outside counsel are trained in assisting clients to get to mediation and effectively preparing and representing them in mediations.
2. What is the advantage of having a mediator?
The key advantage is the gateway provide to interest-based negotiation by the presence of a neutral person in the negotiating frame one who can handle the process and enable the parties to negotiate based more on their needs than on the positions that have taken.
In most cultures, people tend to negotiate from positions. Positional negotiation usually involves extreme opening positions, a compromise somewhere between the parties opening positions, a process of gradual and usually mutual concessions clouded by “tactics exaggerations, disguised and undisguised threats, overstatements and often lies and trickery. Positional negotiation fails if insufficient concessions are made. Positional negotiation is quite easy, and does not stretch the players negotiating abilities.
Interest-based negotiation happens when the parties focus on their needs and interests more than on their positions, enabling them to achieve more creative options for mutual gain. It is a more collaborative, less combative experience aimed at maximizing the value on the negotiating table often by bringing to the table value that may not necessarily be there initially.
The presence of a skilled neutral changes the negotiating dynamic in a critical way. The mediator can help the parties to keep the negotiation focused and framed positively, and to consider their positions and interests more objectively and realistically. This calls for wide-ranging and exceptional skills on the mediator’s part, and the parties need to be able to trust the mediator. From the parties perspective, a faster and higher quality outcome can usually be expected from the engagement of a competent, suitable mediator in most negotiations.
3. How do I get the other side to agree to use a mediator?
Propose it, but do it in a way that avoids conveying a sense of weakness. This can be done by explaining why it makes sense for the other side as well as you. The most common shared reasons for engaging in dispute resolution mediation are:
- it maximizes the chances if there are any of reaching an agreement
- it keeps everyone’s costs to the minimum (see Q5)
- it prevents issues escalating out of control
- it is your policy to propose mediation prior to engaging in litigation
- if litigation has started, it is your policy to try and negotiate outcomes if possible.
If there is no dispute, then the weakness issue is less pronounced, or is not a factor at all. The most common shared reasons for engaging in deal mediation are:
- a mediator will help keep the negotiation collaborative and creative
- the mediator will take the process hassle out of the agenda
- although there is a cost factor, it is minor compared to the benefits attainable.
4. Are mediators bound by a professional code of conduct?
They certainly should be. Many mediators are associated with one or more provider institutions and adopt their Code of Conduct. You should always ask to see a copy of the code and be sure you are comfortable with it. Most mediators also carry a professional indemnity insurance policy, which it is also wise to verify.
5. How do I check out a mediator’s credentials?
Ask for their Profile, resum or CV. The key things you should be looking to satisfy yourself about are the mediator’s competency, and her/his suitability as a mediator in your situation. If the mediator is IMI Certified, look them up on www.IMImediation.org.
On competency, key questions to ask are:
- How experienced is the mediator?
- What sort of feedback has the mediator received from prior users?
- Which professional certifications does the mediator have?
On suitability, you need to consider:
- Will everyone be able to respect and trust this person as the mediator?
- If the issue is technical or specialised, the mediator handled similar situations?
- Are the mediator’s costs appropriate for your case?
Make a shortlist of several mediators and discuss the shortlist with the other side. Try to agree on a priority.
6. Is mediation costly?
All costs are relative to the payback and alternatives. Except where minor situations are being considered for mediation, usually mediation is the least costly of the alternatives, often far less costly than going to court. Many mediations, even those where the stakes are very high, are completed in 2 days, and often in one. In situations which are ongoing for example the negotiation of a deal or where the purpose of the mediation is to repair relationships rather than settle a specific dispute, it may take longer. But parties can discontinue a mediation at any time, so it is possible to set a budget, agree it with the mediator, and when the budget limit is reached a decision can be taken whether to end the process or continue it with a revised budget.
7. Mediation is said to be voluntary but what does that imply?
It means that although you should try to use mediation positively and in good faith, if you really think it is not getting anywhere you can ask for it to be terminated. The other side can do the same. So it is not obligatory to reach an outcome agreed by all parties, and you should not feel pressurised to compromise against your better judgement.
8. How successful is mediation?
In a word very. Most mediation provider bodies that have conducted research on the success ratio of mediation quote an approximately 80% chance of success. The reason for this is that when parties are in a situation where they all feel empowered to negotiate effectively, and achieve their needs, they generally do not fail to do so. Mediation provides that empowerment.
9. Must I mediate if the other side proposes it?
Not unless the parties have been ordered by a court to attempt mediation, or unless they are under a contractual requirement to do so. Even then, provided they approach the mediation in good faith and with a genuine intent to make it successful, they can decide to discontinue the mediation.
10. How should I prepare for a mediation?
If you are legally represented, and wish your counsel to be present at the mediation, you will be guided by counsel. Whether legal counsel will be present or not, mediation is a collaborative solution generating attempt rather than an opportunity to score points against the other side. That is not to say that all parties should not have the opportunity to state their case, argue their positions and vent their feelings these can be important and cathartic. The key thing to remember is to come to the mediation after preparing well and deciding what you need as a bare minimum. And don’t treat the mediator as an opponent or a tool to represent you you need to trust the mediator, knowing that anything you say in confidence will be kept in confidence unless or until you allow the mediator to disclose it. Watch a mediation video.
11. How do I find the right mediator?
Start by reading The Right Mediator: How Do You Know? Then go to the Decision Tree and follow the links. This involves considering whether the situation requires a mediator skilled in a particular practice area (or more than one), what mediation style is needed, language and cultural skills, location, and whether an administered or non-administered process is preferred. Remember, the other side may have views on all or any of these things. You can then key in your preferences on these aspects at the IMI Search Engine. If this generates an insufficient number of choices, consider changing the preferences. After that, seek recommendations from counsel or visit the websites of one or more of the mediation providers. Read the answer to Q4.
12. What do I have to lose?
Nothing, with the exception of a little time and a modest shared cost.
13. How long will a mediation take?
Most mediations take under 2 days. See Q5.
14. Who should participate in a mediation?
That depends on the circumstances and your preferences. Mediation is assisted negotiation and you are your own negotiator. If you are accompanied by counsel, make sure your counsel comes to the mediation as a collaborative solution provider first, as your adviser second, and as your advocate third depending on how the mediation goes.
15. Why use a mediator to negotiate a deal when there is no dispute?
The settlement of a dispute is just a deal. Although mediation has traditionally been used for resolving disputes because it is particularly helpful in managing the hostilities between parties that typically characterise disputes, mediation has far wider values in terms of enabling negotiators to do their job on a collaborative rather than confrontational or positional basis. See Q1 and IMI’s materials on deal mediation.
16. When should I mediate?
As a generality, the earlier the better. If there is a dispute, tensions tend to escalate over time, making settlement harder to achieve the longer a negotiation is delayed. Where there is no dispute, agreements can be harder to achieve once parties become entrenched in their positions and would lose face, or suffer other consequences, to reverse claims and statements made earlier. Avoiding problems is generally easier to achieve than resolving them after they have arisen. Having said that, there are situations where facts need to crystallise before a useful negotiation can take place. As the Greek poet Hesiod wrote in Works and Days in 660BC Timing is in all things the most important factor.
17. Should I insert a mediation clause into a contract?
Without hesitation, yes. This makes it much easier for the parties to mediate early, before litigating, and avoides any weakness perception in proposing mediation. IMI has provided guidance on model mediation clauses.
18. How confidential is a mediation?
Except is extreme cases (such as criminal illegalities or specific requirements of law and legal process) information disclosed to mediators must be kept confidential by mediators and their Codes of Conduct bind them to that commitment.
19. What are the different kinds or types of mediation?
20. Why are some people very reluctant to mediate?
The most likely reason is lack of familiarity, and a preference to stick with their comfort zone of doing things they way they have been done before. Some lawyers are reluctant to advise their clients to engage in mediation for a variety of reasons. Overcoming these blockages requires some persistence.
By the International Mediation Institute (www.IMImediation.org)