Submit a Case Submit Case Find a Neutral Search Neutral

JAMS ADR Blog

Blog List Banner

Moving from Preparation to Negotiation – How to Cause Failure in Mediation – Part 1


by Alexander S. Polsky, Esq.

Much has been written advising of various tips to make mediations work.  Let’s address ways folks are making sure their mediations fail!  Here are a few:

Mediating too early:  Early stage mediation is a very effective method to minimize risk, and control transaction costs.  However, for these to succeed, it is necessary for the parties to agree that they will mediate on the information possessed, or to engage in a pre-mediation exchange. Early mediations fail when significant unknown information is brought out, which requires further investigation or formal discovery.

Selecting the wrong mediator:  It is a simple fact that certain mediations require core interpersonal skills.  Death, catastrophic injury and employment cases require a mediator who is good with people, and possesses empathetic listening skills.  A head banger or mediator with an aggressive and evaluative style can kill a deal in emotional cases.  Similarly, complex multi-party cases with complicated factual issues require a firm hand that will manage the process and understand the issues.  So find a mediator trusted by both sides, with the skill sets for the people, process and issues.

Expertise in facilitation trumps subject matter expertise every time!

Not preparing the mediator:  Mediators need information, submitted early enough for us to design the most effective process.  Not taking the time to have a pre-mediation call, or submitting a well-written mediation oriented brief (more on this later), leaves the mediator guessing regarding the relationship between parties and counsel; the emotions of the case; and other key issues regarding the mediation process.

Similarly, supplying too much material is unhelpful.  A pile of exhibits, not referenced in the brief or highlighted for relevance is just a pile of paper.  Tell the mediator what should be reviewed, and append only that which is relevant.

To continue reading Mr. Polsky’s discussion on failures in mediation, please read the full article from Law.com.


Disclaimer:

This page is for general information purposes.  JAMS makes no representations or warranties regarding its accuracy or completeness.  Interested persons should conduct their own research regarding information on this website before deciding to use JAMS, including investigation and research of JAMS neutrals. See More



AUTHOR(S)

Alexander S. Polsky, FCIArb

Categories

Archives

JAMS NEWSLETTERS

ABOUT OUR BLOG

The JAMS ADR blog serves to engage our clients, the legal community and the public in a discussion about alternative dispute resolution. As leaders in mediation, arbitration and more, we strive to remain at the forefront of legal developments, trends and news in areas of law that pertain to ADR.

Welcome to the JAMS ADR blog. We hope you find it informative, interesting and we hope you visit again soon.