Evaluating the Dispute Resolution Clause in Mediation

Mediation is a substantially different approach to resolving disputes from litigation or even arbitration. Many of the skills that may work for an attorney in litigation are generally not effective in mediation, and many skills that are important in mediation are not effective in litigation.

To obtain the kind of practical outcomes associated with mediation, advocates — whether corporate counsel or lawyers in private practice — need to develop knowledge and skills appropriate for that process. This article, the first in a series covering tips and techniques for representing parties effectively in mediation, focuses on the contractual dispute mediation clause and includes a review of the important elements of the provision and what to do if any of those elements are missing. Future articles will explore how to assess whether mediation is appropriate for your dispute, as well as provide tips and techniques for preparing for mediation, selecting your mediator, preparing pre-mediation submissions, effective participation during the mediation session, overcoming impasse and documenting the resolution.