One of the key advantages of mediation is the ability to be heard by a neutral party genuinely interested in the facts and arguments giving rise to the dispute. Allowing the parties to tell their story to someone who is listening and empathetic to their problem is central to successful mediation.
When parties come to mediation, they have already had some back and forth with each other. Often each side recognizes that both parties have vastly different views on the facts, the law and how to resolve the dispute. They know they are not going to convince the other side of the merits of their position. Nevertheless, often each side continues to bombard the other side with missives on how wrong their position is. That, of course, gets the parties nowhere. More often than not, the “litigation by email” causes each party to retrench even further.
Mediation provides the best forum for airing those views to an audience that will listen and not return the salvo. When parties begin telling their story to the mediator, they gain better clarity about their case and about their adversary’s positions. A mediator will encourage robust discussion and allow each party to open up and really dig into the facts, details and law supporting their positions. In doing so, the mediator allows each party to tell their story and have their “day in court.”
The Mediation Statement – A Roadmap to Resolution
In nearly every mediation, a mediation statement from each side is required prior to the first mediation session. The purpose of this statement is to provide the mediator with the essential facts and law relevant to the dispute in a narrative form. I ask the parties to include the outcome they would like to achieve in the mediation as well as the status of any settlement discussions. The mediation statement provides a roadmap for questions by the mediator, which allows the parties to open up and tell their story at the mediation session.
Once both sides arrive at the first mediation session, the question of who speaks for the party at both joint sessions and in private caucuses is important. Typically, counsel takes the lead, especially in joint sessions, but it is also useful for the party or party representative to participate in the conversation. Having the party speak, especially in private caucuses is essential. This is true whether the party is an individual or whether it is a large corporation.
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