Just as location, location, location is the mantra most commonly associated with the field of real estate, preparation, preparation, preparation is the phrase most commonly emphasised in the practice of negotiation. Mediation, a negotiation facilitated by a neutral third party, is no different. Mediation is a nuanced process, requiring the parties and the mediator to use a variety of different tools and strategies to reach a resolution. With appropriate preparation, the parties and their counsel can increase the likelihood of a lasting, durable agreement.

Determine mediation participants

Assuming that mediation is the correct process for the situation and the timing is appropriate, the parties and their representatives need to prepare for the mediation session. The success of mediation hinges on many different factors, especially the people at the table. In preparing for mediation, many overlook the key aspect of identifying the correct person to represent the interests of the corporation or business. An individual with animosity toward the opposing side may make decisions based upon emotions rather than objective criteria or may make statements that escalate the conflict. Businesses, when selecting the appropriate representative, should consider whether the individual has authority to bind the company, whether the individual has knowledge of the situation, and whether the individual has the appropriate temperament to listen to new information and make adjustments accordingly.

Mediation is not litigation. The skills essential for the courtroom do not always translate to the mediation session. The client is best served by counsel who understands the context of mediation and its ability to reach interest-based solutions.

Apr-Jun 2014 issue

Center for Dispute Resolution