legal words
4. BREACHING CONFIDENTIALITY
One of the key advantages of mediation is that the final settlement
is confidential. This is especially important to parties that don’t
want the details of their case to be publicly available. If the medi-ator,
or any other party, breaches the confidentiality of mediation,
they will have violated both their contractual and ethical commit-ments.
The legal community is a small one and the importance of
one’s reputation cannot be overstated.
5. NOT EMPHASIZING THE VALUE OF CERTAINTY
One of the biggest advantages of mediation is the ability to reach
a negotiated settlement that provides certainty. Very few cases are
clear cut to the extent that either side can accurately predict what
a judge will ultimately decide. It follows then that if the mediator
highlights the uncertainty in each room then the parties will, in
most cases, have an incentive to settle the case. Mediators and law-yers
should emphasize the value of certainty, particularly to parties
who are risk-averse and reluctant to pursue litigation.
6. IGNORING PARTIES’ NON-LEGAL CONCERNS
The emotional aspect of a case may be the most important issue
for an employee. In such cases, it may be important for the medi-ator
and the other side to listen and allow the employee to vent
their anger and frustration. Aside from demonstrating empathy,
such an approach may reveal the true stumbling block that is pre-venting
a settlement. On the other hand, mediators should be
mindful to avoid an airing of past grievances. Mediation should be
forward-looking to the greatest extent possible.
7. NOT EXPLAINING THE MEDIATOR’S
ROLE AND APPROACH
Regardless of whether or not the parties have previously attended
a mediation, the mediator should briefly explain the mediation
process and his or her role and specific approach. A mediator
assists and guides parties towards their own resolution. In doing
so, he or she may act as an agent of reality but cannot force the par-ties
to settle. Lawyers may assist the mediator by preparing their
clients (and themselves) prior to mediation. All parties should be
prepared to listen, be creative and be solution-focused.
8. TAKING TRUST FOR GRANTED
Mediators, particularly senior ones, should never assume that
being named mediator equates to being trusted. Trust must be
earned and maintained – neither side should feel that they are
being overlooked or disadvantaged. Mediators should demon-strate
that they are intimately familiar with the relevant facts and
legal principles and must never “just go through the motions.”
Losing either party’s trust will significantly decrease the likelihood
of reaching a settlement, as well as negatively affect future busi-ness
or referrals.
9. BELIEVING “FINAL” OFFERS/
GIVING UP TOO EASILY
It is not uncommon for parties to table a “final” offer. Mediators
must not give up prematurely if the bottom line offer is rejected,
as these offers are rarely firm. There is often a creative, mutually
satisfactory solution to be had as the distance between the par-ties’
positions narrow. Even if the parties remain far apart, it is
important to remember that unrealistic expectations are lowered
gradually. Lawyers should assist mediators by being forthcoming
and reasonable throughout the mediation.
10. MISSING OPPORTUNITIES
PRIOR TO MEDIATION
In most cases, opportunities prior to mediation are missed by
both the mediator and the lawyers. For example, if there are
materials such as pleadings or relevant documents that would
help inform the mediator about the true nature of the dispute
and the important issues, these documents should be appended
to the mediation briefs. The mediator may also benefit from
lawyers disclosing the real issue, legal or otherwise, that is pre-venting
resolution of the dispute. Lawyers should feel free to call
ahead if they believe a specific mediation approach is needed. In
short, mediation should be active and collaborative even prior
to the mediation session to ensure that the mediator has all the
necessary background information to increase the likelihood of
reaching a settlement. n
Peter Israel is a senior partner at Israel Foulon LLP.
MEDIATORS AND LAWYERS
SHOULD EMPHASIZE THE VALUE
OF CERTAINTY, PARTICULARLY TO
PARTIES WHO ARE RISK-AVERSE AND
RELUCTANT TO PURSUE LITIGATION.
leowolfert / 123RF Stock Photo
12 ❚ AUGUST 2018 ❚ HR PROFESSIONAL
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