Mediation is an increasingly popular (and contractually-mandated) choice to deal with disputes between businesses and employees. But amidst all the positive touting of the benefits of mediation for both sides, a simple fact gets lost or obscured: Not all mediations go well.
Failed mediations are often the simple result of a lack of proper strategy. Mediation, after all, is a legal proceeding - less formal than litigation, certainly, but still a proceeding engaged in by two parties who are opposed on an issue or range of issues. In order to make this proceeding effective, you have to approach it thoughtfully.
If mediation was not your choice and you were "forced" into it by legal requirement or court order, put aside your misgivings. Whether or not you wanted mediation, you have it, and your best chance at making it a successful proceeding is to leave behind your objections and try to make the process as successful as possible via full cooperation and energetic strategy.
If you have a choice in the matter, the timing of a move to mediation is crucial. Sometimes you'll do better in litigation or simply by delaying the mediation process until circumstances favor you: Whatever the situation, it behooves you to think about the timing. Mediation can sometimes be a lifeboat if litigation is going poorly, or sometimes is best employed as a first option, but only you can decide what the scenario truly is.
Once mediation is chosen as the route of resolution, the next step should always be defining the "ground rules" of the mediation. These considerations include:
• Who pays for the mediator fees
• Choice of mediator
• Location and schedule
• Discovery process
Having these ground rules worked out in advance will ensure a smoother process that focuses more on the issue at hand instead of procedural disputes.
The most important aspect of any mediation process will be the preparation you put into it. Gathering data and clarifying your own arguments will always help. Remember, you're not there to convince the mediator - they're only role is to guide and shape the process. They're not a judge who can be convinced of the rightness of your cause and render a decision in your favor.
Instead, focus on convincing your opponent. By coming to the mediation prepared with a clear narrative, you'll have the best chance of accomplishing this.
Learn how mediation can help you resolve any commercial and business disputes through interest-based bargaining. Mr. Goldlust is offering his confidential services to parties jointly requesting a neutral facilitator in matters relating to employment, union management relations and general commercial disputes. Call 302-483-2000 or visit http://www.perryfgoldlust.com.