Mediation Strategies and Considerations

In order to direct a case toward mediation in a way that gives your company the best opportunity for settlement at the earliest point in the dispute, first consider how the prospect of mediation arises.

If you have already been involved in pre-suit negotiations, suggesting mediation before the suit is filed allows both sides to close the gap in a confidential and non-binding setting. Has the mediation been ordered by the court? Being ordered to mediate a suit provides cover for both sides.

There are three types of mediators you should consider: the substantive expert, the former jurist and the prominent neutral. The dispute’s subject matter may be so technical that having a mediator with substantive expertise will help cut short the learning curve. Sometimes the successful resolution of a dispute lends itself to the experience and perspective of a former trial court judge. This is particularly true where the dispute involves a layperson as plaintiff against a corporate defendant. And sometimes there is a senior statesman who both sides respect and trust to be fair, and who can provide a reasoned evaluation that moves both sides closer to compromise.

If used properly, mediation remains an effective means of resolving even the largest and most complicated disputes. The process has matured over decades of use by counsel in all types of commercial disputes, but it must be utilized correctly in order to provide the greatest chance of success.