All too often, adversaries that try to mediate disputes walk away disappointed. In many cases, their frustration is caused by a lack of understanding of how successful mediation works, beginning with the development of a proper mindset. Mediation is the one time in a lawsuit where the parties and their attorneys control the process and decide the outcome, and should not be treated as a mock trial where you display the strength of your case. Over the years, as a mediator and as an advocate for clients in mediations, I have seen what works—and what does not work. Here, I outline what I view as the pillars of a productive mediation.
Parties and their counsel must identify goals, appreciate their adversary’s position and objectives, and understand both the mediator’s role and the dynamics of mediation. Doing that requires preparation, which brings us to our first pillar.
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