April 2013 Bar Bulletin
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April 2013 Bar Bulletin

Making the Most of Mediation

By Nancy Maisano


For successful results and a lasting resolution, a mediation must achieve three types of fairness - procedural, psychological and substantive.

Procedural Fairness

Procedural fairness requires that the mediator manage the dispute in an impartial and transparent manner, and that the parties have a true opportunity to be heard and understood, and are encouraged to directly participate in the process. This allows parties to "have their day in court" without actually having the case decided by a jury or judge. Clients must fully understand the process and play an active role in problem solving, decision making and negotiating.

To achieve procedural fairness for your client in mediation consider taking the following steps:

Schedule the mediation early, before the parties are deeply entrenched in their positions and fees accrue unnecessarily. Help your clients understand the big picture - provide them a thorough explanation of what a late-term mediation would look like compared to an early one. Explain that it is not only the financial costs incurred in litigation, but the almost inevitable emotional toll. A productive, early mediation offers the possibility of closure and peace of mind.

Communicate with the mediator. Tell the mediator what you and your client need to achieve resolution. Are there need-to-know emotional, hot-button issues or special concerns that would assist the mediator in communicating with your client? Discuss the anticipated mediation attendees and the process. Will the person with authority be able to revise a predetermined case evaluation? Will there be a joint session to start the day?

Exchange mediation memos. Pre-mediation information exchange is essential to provide "the desired" impact on the case evaluation set by the other side. This exchange helps ensure that each side will have input as to how the other side evaluates the case. Often employer representatives in employment cases arrive at the mediation with a predetermined top dollar they are willing to offer. When the entire valuation process takes place prior to the mediation and there is very little flexibility beyond the specified dollar amount, the process can feel less satisfying than a true negotiation.

Set aside enough time for the mediation. Mediation lengths are notoriously hard to predict. Sometimes the parties are prepared to cut to the chase and the process is complete in a half day. Other times, the process requires a long day and the participants not only have their morning coffee at the mediation, but lunch and dinner as well.

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