Disputes Suitable for Mediation
I've been discussing the "what" of mediation. What kind of disputes are ripe for the process? In my last posting found here, I identified some very interesting disputes that a court or the parties have sent to mediation.
Hal
Abramson, the author of Mediation
Representation: Advocating in a Problem-Solving Process, suggests that
certain types of disputes are especially amenable to mediation:
·
When the parties have conflicting views of the
facts or law;
·
When a party needs to express strong emotions;
·
When a party craves the opportunity to be heard
directly by the opposing party;
·
When clients or their lawyers can no longer
effectively communicate with each other without the assistance of a skillful
mediator;
·
When the parties are not skillful negotiators
and need the process structure and negotiation expertise provided by a
mediator; or
·
When a conflict exists between a party and his
or her attorney.
Christopher Moore -- a partner in
CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict
– would also consider these factors:
·
The intense emotions of the parties prevent a settlement;
· Poor communications -- in quality or quantity -- between the parties make it difficult for them to change the situation on their own;
·
Misperceptions or stereotypes hinder productive exchanges;
·
Repetitive negative behaviors create barriers to settlement;
·
Disagreements over data hinder its collection
and evaluation;
·
Multiple issues in the dispute keep the parties
from agreeing about the order and combination in which they should resolve the issues;
·
The parties perceive their interests as
incompatible;
·
The parties have no negotiating procedure, they use the wrong procedure, or they use a procedure without skill;
·
The parties have no acceptable forum for the
negotiation;
·
The parties have difficulty starting the
negotiations; or
·
The parties have reached impasse in the
unfacilitated negotiation process.
I would add to this list cases in which the parties:
·
Need to protect -- in a confidential process -- reputations, good will, trade secrets, or a good name;
·
Seek to avoid the emotionally and
psychologically exhausting process of litigation;
·
Seek to avoid the distraction –especially in a
business setting – of ongoing litigation;
·
Seek to avoid the expense of litigation;
·
Need a much quicker resolution of the dispute;
·
Cannot accurately predict the outcome at trial;
·
Desire to maintain control over the dispute
resolution process design;
·
Need more than an award of damages or an
injunction as a remedy;
·
Seek some sort of compromise solution rather
than a win-lose outcome;
·
Desire to maintain control over the outcome;
·
Seek to avoid the decisions of a potentially biased
adjudicative neutral; or
· Cannot afford the expense of skillful and
higher-paid lawyers, expert witnesses, or other representatives in litigation.
Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.
Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.
In my next posting I will discuss disputes that are less suitable for mediation.
Photo provided, with permission, by Chris Jones, Harlan, KY.
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