Commentary: Three mistakes to avoid in your next mediation
A strategic approach can contribute to a successful outcome.
ByJennifer Grippa | Miles Mediation & Arbitration senior neutral
| 12:45 a.m. July 6, 2023
The Bar Bulletin
Mediation is a crucial alternative dispute resolution method that allows parties to negotiate and resolve conflicts outside of the courtroom.
The lawyer’s role in mediation is pivotal to ensuring your client’s interests are protected.
However, it is important to be mindful of certain mistakes that can hinder the mediation process and potentially disadvantage your client.
Here are three critical mistakes for lawyers to be aware of when participating in mediation:
Considering a single approach to resolution
While it is natural for lawyers to advocate strongly for their clients, fostering a collaborative atmosphere can be highly beneficial in mediation.
Encourage all parties involved to engage in brainstorming sessions where ideas and potential solutions are openly shared. By allowing for creative input from all sides, new perspectives and innovative solutions can emerge, leading to mutually beneficial outcomes that may not have been initially apparent.
In a recent mediation involving two business entities in a dispute over shared expenses and the transparency of business expenses, a participant suggested the parties trade places, shifting the obligations to the opposing party to handle the purchasing and reporting.
Power and control were just what the adversary wanted given their distrust of the other side, ending a litigious legal battle that had been going on for years.
The parties’ willingness to encourage collaborative ideas was instrumental to resolving that case.
In mediation, it is essential to think outside the box and consider alternative solutions that may better suit the specific circumstances of the dispute. These could include exploring non-monetary concessions or innovative contractual arrangements that meet the parties’ interests while ensuring legal compliance.
Traditional legal remedies may not always be the most effective means of resolution. By avoiding a single approach and incorporating creative problem-solving techniques into the mediation process, you can enhance your client’s chances of achieving a favorable outcome.
Adopting an inflexible position
While advocating for your client is essential, it is important to avoid adopting an overly rigid or inflexible position during mediation.
Mediation is intended to encourage dialogue and compromise, and parties who enter with a fixed mindset may hinder the negotiation process. Refusing to consider alternative perspectives or explore creative solutions can impede progress and limit the potential for reaching a mutually acceptable agreement.
To avoid this mistake, approach mediation with an open mind. Actively listen to the other party’s arguments and be willing to explore options for resolution. Consider the interests and concerns of your client, but also be open to finding common ground and compromising where appropriate.
By maintaining flexibility, you can create an environment conducive to a productive negotiation.
Allowing emotions to overshadow rational decision-making
Emotions can run high during the mediation process, particularly if the dispute involves personal or deeply rooted issues.
It is crucial to prevent emotions from clouding your judgment and decision-making. Allowing emotions to dictate your approach can lead to impulsive reactions, obstruct progress and hinder the potential for reaching a favorable resolution.
To mitigate this, recognize and manage your own emotions as well as those of your client. Encourage your client to express their concerns and emotions while ensuring they understand the importance of rational decision-making.
Focus on the underlying interests and objectives rather than getting caught up in personal or emotional aspects of the dispute.
By delving into these underlying needs and identifying common ground, lawyers can work together to find creative solutions that address the parties’ underlying motivations and desires while respecting client emotions.
By keeping a levelheaded approach, you can navigate the mediation process more effectively.
As a lawyer representing a party in mediation it is essential to be mindful of potential mistakes that can hinder the process and compromise your client’s interests.
Remember, mediation is an opportunity for constructive dialogue and compromise. Your strategic and levelheaded approach can contribute significantly to a successful outcome.
Jennifer Grippa is an arbitrator and mediator with a specialty in construction and complex commercial litigation.