Even though the results of mediations are generally non-binding, that doesn’t mean that there are no downsides for the parties in failing to reach a mutually agreeable settlement. In order to maximize the chance of obtaining a successful outcome, there are several best practices to consider both before and during any mediation session.
Mediations are non-binding, so why prepare?
It is probably fair to say that many, if not most, advocates of mediation as an alternative method of dispute resolution recognize that the mediation process offers parties the opportunity to save time and costs, preserve existing relationships, and achieve creative or commercial-centric solutions not typically available with either arbitration or litigation. The flexibility of the mediation process allows parties to push beyond their litigation-based positions and explore the underlying interests, goals, and needs of each party.
Despite the unique potential for “out of the box” results that mediation can offer, many lawyers and unrepresented parties alike do not dedicate sufficient time to properly prepare for the mediation. Whether as a result of unfamiliarity with the process, a feeling that mediation will produce no positive outcomes, or the fact that mediations are generally non-binding, there can exist a sense that serious preparation in advance of the mediation is not needed or even a waste of time.
One of the downsides of inadequate preparation is the wasted opportunity to achieve outcomes that can enhance the parties’ business, personal, or social objectives. However, there are several key issues that parties can (and should) address in advance of the mediation to maximize the likelihood of achieving a positive outcome.
Select the mediator with care
Vital to the success of any mediation is the engagement of a skilled, experienced, and interested mediator. To that end, parties should do their due diligence and carefully consider the background, style, and temperament of potential mediators to ensure they are qualified and that they will mesh well with the personalities of the parties.
Bring the decision makers
It makes sense that a deal can’t be reached if the parties doing the negotiating don’t have the authority to agree to the results of the negotiations. And yet all too often the representatives who attend the mediation (where the party is a business entity) lack the decision making authority necessary to enter into settlement agreements on behalf of the party they represent. Sending a representative with actual decision making authority not only shows the other party that you are taking the mediation seriously, it also allows for resolutions to be achieved on the spot while the parties have the advantage of a neutral and skilled mediator present to help facilitate the negotiations.
By the time parties take their seats at the mediation table, it’s very common that significant bitterness and resentment has built up between them. This in turn can lead to a mindset of entrenchment whereby each party truly believes they are in the right and, therefore, it is only the other side that needs to compromise and give if a settlement is to be reached. However, this type of mentality is usually a mistake. Parties should of course base their positions on what they want to achieve and what they think is fair given the situation; however, if the parties genuinely seek to achieve meaningful resolution of their issues at the mediation, they should not allow themselves to be so hardened in their positions that they fail to realistically assess the merits of their case as well as those of the other party.
While it is sometimes easier said than done, parties who allow themselves to see the legitimate concerns and valid points of the opposing party are more likely to be able to compromise on their positions (even if only slightly). This ability to remain realistic and flexible can oftentimes result in the parties achieving significant and meaningful resolution of their disputes without the need to initiate costly and time-consuming arbitration or litigation proceedings.
Our team at Hugill & Ip has extensive experience in dealing with Mediations and other Dispute Resolution issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.