When Mediation is the Right Choice

Comfort with a commercial negotiation

Mediation works best when the parties have an open mind and can take a commercial perspective as to the dispute.

The settlement proposal that emerges from the mediation process can be accurately viewed as an expedited commercial negotiation designed to settle the case, negotiate any appropriate compensation, and clarify the relationship of the parties moving forward.

This kind of setting works best for parties who are willing to take control of the dispute and view it as a possibility for a negotiated outcome. The neutral can act as an umpire, assessing whether certain proposals are likely to be seen as unfair or non-credible. At certain times, the neutral can also provide input as to what terms may make sense.

Some willingness to settle

The parties should have some willingness to settle. This may sound like an obvious point, but it is not at all obvious. Many parties strongly want the vindication of a court hearing and a judicial ruling from a judge. While some level of emotion exists in all litigation, a case may have such strong emotions that perhaps there is no air in the room in which parties can listen to each other. While the mediator can emphasize the risks of further litigation and the costs associated with continuing to pay legal fees, ultimately, the parties must be willing to exit the mediation with a different kind of relationship and the dispute behind them.

Counsel track record

Counsel selection can play a material role in whether a dispute will settle. Does each side have a lawyer who has settled disputes before? Does counsel have realistic expectations about the merits of the case? Sometimes, a party may be learning about significant weaknesses in its case only for the first time in mediation or some other kind of settlement conference. It is therefore essential that each party in mediation be represented by experienced and sophisticated counsel.