Mediation is now a critical part of virtually every business dispute. In fact, the ABA’s recent Tort Trial & Insurance Practice Section Conference dedicated two sessions to the topic. A common theme in each presentation was the important role that pre-work plays in the potential success of the mediation.
There are many ways to approach mediation—from a “double blind” model to a more direct method in which the parties interact with each other. The merits of each will vary depending on the parties involved and the details of the dispute. Therefore, it is important to first confirm that the objectives of the parties are actually aligned and then engage a mediator whose background and skill set are compatible with those objectives.
Over the years, I have participated in many mediations. In the rush to mediate, I’ve seen parties too often propose a mediator without taking a critical look at whether there might be a better choice for the unique circumstances of the dispute. In reality, mediators have varying skills and experience, which can have a significant impact on the success (or failure) of the mediation.
For example, it is not uncommon for a party to be so dug into its position at the inception of the mediation that it is unable to recognize potential risks. In such a circumstance, many would assume that a former judge would be the best mediator because of that individual’s prior experience viewing similar disputes from the bench. But judges are trained to rule on cases, rather than act as advisors who can help the parties make business-focused decisions. As a result, a judge is often not the right choice to mediate the dispute. Consequently, parties should have a candid discussion with their legal counsel to ensure they are selecting the mode of mediation and the type of mediator that are most likely to achieve their objectives. An additional impediment to an effective mediation is that trial counsel may be entrenched in its litigation strategy, rather than exploring other paths to resolution.
Clients are often well-served by bringing in settlement counsel to help with mediations and settlement conferences. Goodman Law Group | Chicago can help in that capacity by offering insights about insurance coverage that may not be apparent to the attorneys litigating the case. We can provide a fresh, strategic perspective and ask questions that may help the client pivot to a better solution.
