Page 42 - JulAug2019_BarJournal

FEATURE ADR
ADR

RIGHT FROM THE START

OVERCOMING THE OBSTACLES THAT SABOTAGE

A MEDIATION BEFORE IT EVEN BEGINS

BY AARON SCHMIDT
W hy are some mediations should inquire about the reason for their lack Subsequently scheduled settlement conferences
The mediator and the parties’ attorneys
A
settlement
successful while others
subsequently
scheduled
of commitment. If the parties are discouraged
conference can be problematic because it may
fail? You have to start
by prior failed attempts to resolve the dispute,
at
cause the parties to feel there’s no pressing need
beginning.
the
The answer often lies
neutral third party, can better assist with the
in the steps that are taken by the parties and you can explain how the mediator, as a to settle the dispute at mediation, since there
will be another opportunity to settle later. This
their attorneys before they even sit down at the negotiations. If the parties are overconfident in can extinguish any sense of urgency to resolve
negotiation table. Knowing the obstacles that their case, you should help them better assess the dispute. It’s Plan B if the mediation doesn’t
sabotage a mediation from its beginning and how the strengths and weaknesses of their case, as progress the way they’d like.
to overcome them will set you up for a successful well as those of the other party, and the risks How can the parties approach the mediation
mediation that ends with a settlement. involved with litigation. with the urgency needed to resolve the dispute
if there’s a subsequently scheduled settlement
LET’S LOOK AT SOME OF THESE Wrong timing conference? You can help them by properly
OBSTACLES The timing of the mediation can be critical. evaluating their case before the mediation and
Lack of commitment to resolve the dispute If it occurs too early, the parties may not clearly stating their positions at the session. If the
Nothing will sink a mediation faster than parties have the information they need to assess the cases are properly evaluated and their positions
who are not committed to resolving the dispute. value of their case and the risks involved with are communicated clearly, then any offer at a later
The mere desire to settle a dispute is not enough. litigation. If it occurs too late, the parties may settlement conference won’t likely be any better
Without a commitment from both sides, the feel they have too much invested in their case, than what’s offered at the mediation.
mediation has little chance. will be less flexible, and more entrenched
Why won’t parties commit? There can be many in their positions. The more the attorneys Lack of preparation
reasons, but perhaps two are most common. prepare for trial, the more difficult it may be to Mediations sometimes fail for the simple reason
First, the parties haven’t been able to resolve their settle. The best timing is as early in the dispute that the parties and their attorneys show up to the
dispute up to this point, so they don’t believe as possible after the parties and their attorneys mediation unprepared. Lack of preparation for
the mediation will be any different. Second, the have a good understanding of the facts and mediation has been described as a significant and
parties are overconfident in their case and believe legal issues, and before expensive discovery, recurring problem.
they will prevail in litigation.
such as depositions, take place. After exchanging mediation statements, the
parties and their attorneys should discuss the risk
preeminent (prēˈemənənt) adj. 1. authoritative. 2. commanding factors of their case – the strengths of the opposing
party’s position and the weaknesses of their own
great respect. 3. possessing superior wisdom and skill. position. The parties need to understand their risk
factors before the mediation begins. Don’t make

Jerome F. Weiss, Mediator the mistake of waiting until the mediation to start
thinking about these risk factors and potential
solutions. Consider solutions, both monetary and
non-monetary, before the mediation.
Facilitating dispute resolution Coming to the mediation prepared also sends
for individuals and institutions a message to the other party and the mediator
that you have properly assessed and valued the
Tel 216.589.9995 case, the injury or the defense is real, and you are
Fax 216.589.9723 serious about resolving the dispute.
www.mediate.com/mediationinc The parties and their attorneys should bring

all documents and information necessary
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