Mediation is an inherently flexible process. As such, participants can help design the process. But in order to do so effectively, it helps to understand why the parties have chosen to mediate. Cases settle all the time through direct negotiations between lawyers or principals. Going to mediation is a choice (unless ordered). The parties and/or counsel often have particular negotiating challenges that they believe the mediation will help with. It is important to consider those challenges when designing the mediation process. If you accept an off-the-shelf mediation process and a mediator who is not familiar with your particular challenges, you are less likely to have a conversation that meets your needs. So knowing the reason or the “why”, is important in designing the process.
What reasons for mediation would lead parties and/or counsel to design the process a little differently? Here are some.
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