Arbitration/Mediation and Alternative Dispute Resolution

Most litigated cases are not resolved in the courtroom.  The growing trend is to resolve the dispute by way of arbitration or alternative dispute resolution (mediation) rather than litigation.  The goal of the mediation counsel is to get the matter settled. The mediation counsel has no financial incentive to proceed to litigation.  For this reason, many clients are now demanding mediation counsel be appointed to act as lead counsel at mediation sessions.  In addition, if you are mediating prior to litigating, you can benefit from having an attorney familiar with mediation represent you.  Our goal is to resolve disputes effectively without protracted litigation.

 A good mediator at the beginning of the process will do the following:
  • Explain that the mediation process is voluntary and informal (no judge) and offers an opportunity to create a mutually acceptable agreement.
  • Explain the role of the mediator as a facilitator, to be neutral and impartial, that the mediator has no authority to decide the substantive issues in the mediation.
  • Discuss confidentiality as the mediator will not talk to others outside of the mediation process, and that the mediator will destroy all notes taken.
  • Review the Agreement to Mediate form and determine each party’s willingness to mediate in good faith.

TEN TIPS TO SUCCEED IN MEDIATION:

1. Select the appropriate mediator:  There are various styles.  One mediator may prefer to keep the parties in joint secession as long as possible, while another mediator may meet privately early on.  The private meeting is useful when a monetary settlement is contemplated.  It allows for venting and sharing of sensitive information and a chance to formulate your “pitch” before delivering it to the other side.
2. Prepare for your case:  The more time you take to do your homework, the better you will be at negotiating.
3. Make concise, truthful, and compelling mediation summary:  It is not the same as a trial brief which tries to persuade the Judge.  Here you are trying to persuade the other side.  Do not exaggerate or shade the truth as you will loose credibility and trust.
4. Formulate a reasonable opening offer:  It “anchors” settlement negotiations.  Map out your monetary moves in advance and reward the other side for movement toward your final settlement amount.
5. Listen actively: Try to understand the other side’s position.  Repeat some key phrases to lett he other side know that you heard them.
6. Consider who to bring to mediation: Will the person you bring to mediation help you reach a settlement.  Do you need an expert to provide technical information.
7. Deal with emotions before mediation: Emotions fuel conflict which is to be avoided in mediation.  Identify hot emotional topics and decide how to manage them in advance.   Focus on solutions, not blame or retaliation.
8. Identify Key interests:  What really matters may not be only money.  Identify interests on both sides.
9. Empathize: Acknowledge the problem, show signs of sympathy and a desire to settle. Make the legal and factual arguments and invite the other side to help resolve these issues to reach a settlement.
10. Focus on the Future versus the Past:  Acknowledge the past but shift to the present and future where a settlement is only possible.
In Missouri, Supreme Court Rule 17 requires mediators to be trained. Civil mediators who mediate most commercial and monetary disputes must get a minimum number of hours of approved training.  Jeff Weisman is a Rule-17 approved Mediator in the State of Missouri for civil matters.