Why Mediation Works (99% of the Time)
Monday, December 26, 2016

As a mediator, I am not surprised by how much effort lawyers devote to picking the “right” mediator, even though a mediator does not make findings or rulings or enter awards. The reason for all the due diligence is understandable: the parties have had their opportunity to test their cases and probe the weaknesses of the opposing side, and spent a fair amount of time and money in the process. Now, they want to resolve the matter, put it behind them and move on to more productive things. At the same time, neither side wants to “give away the store.” Great mediators can find that balance.

My own informal poll as to what lawyers are looking for in selecting a mediator reveals some simple truths. First, a great mediator has to be willing to learn the case, to read the applicable law, to flesh out the weaknesses that may exist in each side’s case and to challenge each side to overcome those weaknesses. Second, a great mediator has to engender trust among the parties and be a patient listener. A successful mediator does not go right to the numbers and start trading them back and forth. Each side must have a meaningful opportunity to be heard. Last, a great mediator has to be persistent. The parties should be drawn away from words like “never” and “no way” and toward concepts like, “this is possible” and “no one gets everything.”

I always begin a mediation by telling the participants that I cannot guarantee they will settle their case but I can make one guarantee: if the case does settle, they will not wake up the next morning and say, “Gee, I really wish I could go back to litigating.” 99% of the time, I am 100% right.


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