The National Arbitration Forum Blog

The June issue of Trial, a publication of the American Association for Justice, contains a helpful “How-To” article for trial lawyers on the mediation of commercial disputes. Stewart I. Edelstein’s lengthy article called Mediation in Commercial Disputes discusses how to choose a mediator, prepare to mediate, select strategies, get past impasse and finalize the mediation.

Mr. Edelstein's recommendations include:

Choosing a mediator
…who is impartial and has a strong track record for effective problem-solving, excellent negotiating skills, patience, trustworthiness, a keen business sense, and a good sense of humor. Depending on the case, you may need a mediator who has expertise in a particular area, such as construction or patents.

Preparing to mediate
…because failing to do so is one of the biggest mistakes lawyers make in connection with mediation. Among other considerations, Mr. Edelstein suggests the following:
• Decide on an initial demand
• Discuss creative solutions with the client before mediation
• Provide a complete pre-mediation statement
• Discuss proper mediation demeanor with the client
• Work out an agreement for the terms of the mediation

Selecting strategies
…that achieve the final result the client seeks. Carefully consider the opening position. It is an important opportunity to convey to your opponent that you are a formidable adversary prepared to litigate the case to conclusion, if necessary. Nevertheless, recognize the benefits to both parties of resolving the case sensibly through this mediation. Finally, be patient, open-minded and involved.

Getting past impasse
…can be achieved by a good mediator with effective strategies. Mr. Edelstein identifies several “impasse breakers” including:
• Refocus on the importance of the ongoing relationship
• Emphasize mutual benefits of resolving the dispute without publicity
• Review risks and costs
• Consider nonmonetary settlement components
• Consider a "double-blind" proposal
• Take a recess
• Transform the process from mediation to arbitration

Finality is Key
If the mediation is successful, Mr. Edelstein recommends getting the settlement terms in writing before the mediation session is complete. Consider having a computer and printer accessible to draft the terms of the final agreement, so it can be printed and signed on the spot.

Mr. Edelstein presents a lot of helpful tips for lawyers involved in mediation. Be prepared for mediation—it can be the difference between success and failure. An effective mediation can save time, money and relationships.

The National Arbitration Forum offers mediation services in all 50 states. See the website for more information.