Monday, June 24, 2013

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.

In my next posting I will discuss disputes that are less suitable for mediation. 

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at (footnotes in original omitted in this posting).  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.

Photo provided, with permission, by Chris Jones, Harlan, KY. 

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