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Conflict Resolution

Tuesday, February 9, 2016

Advocacy in Conflict Resolution- MEDIATOR AS YOUR NEGOTIATION TOOL!

Mediation is not the top choice for every matter: if your case turns on a novel issue of law or a disputed interpretation of a statute; if clarity arising from a court opinion may benefit your clients’ industry beyond the aspects of the specific matter, you may want to take the case to trial.  BUT, statistics show that 98% of cases settle prior to trial.

Even the most skilled negotiator should consider mediation.  Why?

  1. CLIENT SATISFACTION
  2. NO RISK

  1. A SKILLED MEDIATOR IS YOUR NEGOTIATION TOOL

  1. CLIENT SATISFACTION

    Clients want their “Day in Court”, but ultimately will have greater satisfaction in – and respect for- negotiations in which they played a significant participatory role.  Mediation offers both.  The confidential caucus permits a party to present its case to a quasi-judicial neutral. The mediation process encourages self-determination so parties can meaningfully assist in fashioning and ultimately agreeing upon a resolution.  Parties avoid the risk of an unpredictable jury, judge, or arbitrator and can avoid protracted court delays and repeated business interruption from an inflexible and unpredictable process. 

  2.  NO RISK

    Caucuses are confidential, so there is no evidential risk (i.e., you or your client can’t blow it).  If the mediation does not fully resolve all issues, no litigation rights are waived. 

  3. A SKILLED MEDIATOR IS YOUR NEGOTIATION TOOL

Your Mediator should be your ally in the settlement process.  Consider the following:

  • Settlement discussions through a mediator do not have a stigma of “weakness.” 
  • Mediator can facilitate a focused discovery exchange- particularly valuable with an unreasonable adversary.
  • Mediator is a welcomed ally if your client is emotional, unrealistic or otherwise “difficult.” 
  • Mediator can lend an objective perspective of legal merits and legal/financial risks.
  • Mediator looks underneath the parties’ stated legal position in order to clarify underlying interests- a critical step to breaking conflict barriers.
  • Mediator’s role neutralizes power imbalances (party or counsel) which can thwart negotiations.
  • The process encourages creative resolution terms not available at trial.

 PLEASE COMMENT AND ADD INSIGHT FROM YOUR EXPERIENCES!


 





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