First, consider the parties. Is there more than one? How are they getting along? Are they generally reasonable, yet stuck on one or more issue? What result are they seeking, win-lose, or resolution and closure?
Mediation is often used in situations where:
- The parties to the conflict or dispute are having difficulty expressing their wants and needs
- Their emotions are getting in the way of productive discussions
- They have forgotten how to trust each other
- Misperceptions, stereotypes, and rumors are clouding their visions
- They can’t agree on what is most important to consider
- There are multiple disputes involved
- Their interests are real or perceived differences and they can’t see how to reconcile them
- They want help coming up with ways for both or all of them to get what they need
- They’ve lost the ability to think positively about a positive outcome
- They are reluctant to settle because they don’t want to send the wrong message to others in similar disputes
- They are reluctant to settle because they don’t want to look weak
- They are feeling pressure not to settle (e.g., from lawyers, family members, friends, co-workers)
- They are overwhelmed and can’t think straight about the dispute
- They are afraid there’s something they haven’t considered
In short, mediation is often an option. Mediators open and facilitate communications, helping parties reach an agreement resolving the dispute.
To many attorneys, this may sound like a settlement conference. However, it differs in that mediators don’t focus on the law and the likelihood of success at trial. We focus on the underlying relationship issues that are driving the case. We listen for the needs your clients aren’t expressing in obvious ways, and we help them create ways to have those needs met. We let them be who they are, want what they want, and need what they need, without judgment. Then, we help them build a settlement that gives them as much of that as possible.
If you aren’t sure if this is appropriate for your client’s case, start by describing the process and asking if it sounds like something they would like to try. Then, discuss it with your opposing counsel. If all parties agree, complete and submit this form to request a conflicts check and subject matter review.
If one of the parties is unwilling to mediate the dispute, you can still benefit from mediation techniques through Conflict Resolution Coaching.
Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a crime victim, human resources supervisor, minor league sports agent, and United Nations representative. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC), Financial Industry Regulatory Authority (FINRA), and International Center for Ethno-Religious Mediation (ICERM). She is also creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by the New York Economic Development Corporation/B-Labs (Finalist, Best for NYC 2015 & 2016), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (Finalist, 2013 Pitch Competition).