Professional Mediation Services
Richard E. Lutringer
Richard E. Lutringer concentrates his practice in international business and finance. He is experienced in legal problems of mergers and acquisitions, joint ventures, licensing, distribution, alternative dispute resolution and corporate finance.
Mr. Lutringer has published several articles concerning foreign investment and related topics, and he frequently speaks at seminars across the country and in Germany on legal issues relating to investing and doing business in the United States.
Contact:
900 3rd Avenue 23rd Floor New York, NY 10022 Phone: 212 745 0820, Email: rlutringer@mac.com
Friday, February 29, 2008
Seven Principles for Moving Forward Negotiations
Like it or Not, the United States and Iran are Partners: Seven Principles for Moving Forward Negotiations
by Bill Lincoln, Robert Benjamin, Polly Davis and Seth Kane
There is a point to be made and not to be forgotten: Conflict adversaries such as the United States and Iran are indeed the partners which each other needs and seeks if they are to prevent, manage and resolve dysfunctional conflict. While the nuclear issue is seemingly the focal point of the conflict, in reality it is the overall US-Iranian relationship that must be addressed if stability and real security is to be achieved in the region.
Within the certainty and fair provisions of international law, Iran – as do all nations – has the right to develop nuclear capabilities solely for peaceful purposes yet subject to the standards of the International Atomic Energy Agency and the Non-Proliferation Treaty. Similarly, the United States – as do all nations – has the right to be actively concerned about its own security and those of its allies. The principles of self-sufficiency of one nation and the security of another are apparent competing principles.
The International Coalition of Concerned Mediators (ICCM), a project of The Conflict Resolution, Research and Resource Institute (CRI) , respectfully submits that to date an intelligent, muscular, and realistic negotiation effort has not been undertaken by the United States and Iran to resolve their differences.
We are an organization of professional conflict management professionals whose daily work concerns the negotiated settlement of complex, difficult, and often intractable issues and disputes that many think insoluble – from matters of business, to geo-political and major public policy matters. Our careers have been dedicated to the study and development of practical expertise in preventing, managing and resolving conflicts. Our job as impartial players is to actively work to bring adversaries together, and to keep them engaged so that dysfunctional conflict can be addressed more effectively as well as equitably and efficiently.
We are deeply concerned that such professional attitudes and attention are not being exhibited in this situation. We strongly believe that action must be taken to effectively prevent what appears to be the very real prospect of war. Too many times in history the leaders of nations have proceeded to war without first sufficiently pursuing honest and productive negotiations free of threats and ultimatums.
Several nations within the European Union as well as Russia are proactive in attempting to ward off military confrontation. Similarly, the International Atomic Energy Agency (IAEA) is assertively fulfilling its mandate to objectively monitor and ensure Iranian compliance with the Non-Proliferation Treaty. Nonetheless, the broader international community is well aware that resolving the nuclear issue is unlikely if the animosity between the USA and Iran is not directly and effectively addressed -- and soon.
We fully acknowledge that negotiations involving the USA and Iran will not be easy. However, as seasoned and realistic conflict management professionals we also know that necessary channels for direct negotiations must be opened and engaged immediately.
Both Iran and the United States have rich cultures and histories, both have contributed to betterment of the world, and both are worthy of respect. However, both countries have also engaged in demonizing the other in ways that are all-too-typical in conflict escalation.
We are not interested in picking sides, casting blame or commenting on the substantive issues of contention. Based on our collective professional experience as impartial practitioners we would like to offer our insights on how the process of talks can be improved and advanced so that violent conflict can be avoided.
AS PROFESSIONAL CONFLICT MANAGERS WE PROPOSE THE FOLLOWING STEPS BE UNDERTAKEN IMMEDIATELY:
First, a key myth about negotiations must be dispelled, namely, that one can never negotiate with any other entity that it doesn’t trust.
To dispel such a hypothesis we only have to ask how much did North Korea and the United States trust each other in the cease-fire talks in 1952-1953? At first, absolutely zero. And how much trust existed between Israel and Egypt in the September 1978 Camp David Talks to end dysfunctional conflict between the two nations? Again, none. All through the cold war how much did the United States and the Soviet Union trust each other in disarmament talks? Not at all. And, of course, the current ongoing North Korea six party talks that have produced tangible benefits proceed with a distinct lack of trust. The key is can the disputing parties develop a process that they trust, a process that monitors the agreement and contains an enforceable future dispute resolution clause to address infractions, alleged breaches and unanticipated variables.
Countless historical examples demonstrate that negotiations have a chance for success despite past failures. Numerous and tireless efforts for peace were required in the case of Northern Ireland to finally achieve the levels of stability and cooperation that we witness today. Indeed, every successful peace settlement or rapprochement has succeeded in the face of skeptics arguing that talks were useless by citing past failures as evidence .
Second, negotiations cannot begin with “first, fair and final offers” particularly when such stances represent the insisted upon final results of a process that has yet to begin. Demands to accept certain specific substantive proposals as a pre-condition for talks are typically ‘non-starters’, and too easily can close down the possibility of negotiation before they even begin. Productive negotiations are comprised of bargaining ranges, not ultimatums.
Third, both the United States and Iran must stop focusing upon proposals that are non-inclusive of the other nation’s legitimate principles, i.e., “interests.” In so doing, the United States and Iran have to give more attention to their own as well as each other’s principles, and how such can be satisfied in equitable, practical and durable ways.
Both nations and all related entities must remember that conflict is rooted in a sense of competing principles such as a nation’s subjectively defined and valued notions of its sovereignty, its independence, its national culture and character, its security, its international political credibility and stability, its economic health, its functional amicability with other nations and so forth. It is such principles that “are at stake”, i.e., thus emphasizing the disputants as “legitimate stakeholders” in contrast to being merely arrogant or intransigent opponents. In doing so, one must be aware that the different histories, cultures, emotions, values and beliefs held by conflicting parties often play havoc with others’ definitions of rationality.
It follows then that conflict resolution occurs when disputing parties no longer sense that their respective principles are in dysfunctional competition with one another. Therefore both Iran and the United States must identify, discuss and clearly understand their own as well as the other’s principles, and to be ever mindful of them throughout negotiations. In fact, every proposal put forth must contain three components: (i) articulation of one’s own principles, (ii) verifiable case merits, and (iii) rational as to why the other side would even be seriously interested in considering the proposal, i.e., what principles/interests of theirs would be satisfied.
Fourth, procedural agreements are a vital stepping-stone to achieving substantive agreements.
Too often parties, “in the interest of time”, discount the importance of developing procedural agreements as mere preliminaries that can be rushed or even ignored. Procedural agreements are not “preliminaries”, but are prerequisites: A process of negotiations does not exist without them. Contesting parties negotiate procedural agreements that become the framework through which the causes will be discussed, issue items will be addressed and proposals will be negotiated. Below are some of the key functions, purposes and benefits of developing procedural agreements:
- Experience indicates that conflicting parties tend to negotiate procedural matters in the same way they intend to negotiate substantive matters, thus this initial step serves as a kind of dress rehearsal as to what to expect and what to do to enhance civility and productivity.
- By mutually determining who the primary stakeholders will be in the process an arena is formed that helps manage the conflict.
- By agreeing upon both internal and external behaviors as well as communication guidelines that will be permitted during the negotiations a framework for productive exchanges and conflict management is established.
- Procedural agreements can monitor substantive negotiations. After all, if a party cannot keep little agreements then what is the likelihood that they can keep big agreements – if a party cannot keep procedural agreements what is the likelihood that they can or will maintain substantive agreements?
- The conflicting parties become equal architects of the process in which they will collectively engage, thus developing senses of procedural equity and procedural ownership that contribute much to “procedural satisfaction” which is a central component for developing and maintaining durable agreements.
- While the contesting sides may have doubted that they could ever agree on anything, the process of procedural development has them working together, agreeing together, and getting into a “yes” habit.
- Procedural agreements can be used to specify various timelines thus hindering either side from using the pretext of negotiations as a stalling tactic.
Fifth, any productive negotiations involving the United States and Iran cannot constitute a “one issue agenda.” It must be acknowledged that both nations have several issues to be addressed with related proposals to be negotiated. Moreover, having multiple issues on the agenda increases the likelihood that quid pro quos will be identified and utilized successfully towards building a final agreement.
Not one, but both the United States and Iran are rightfully concerned for their need to strive for their own energy self sufficiency, free from dependency on other nations’ resources and commercial interests. Not one, but both nations are concerned about secure protection from nuclear threats within the region and to themselves. Not one, but both nations are concerned with what they deem and profess are their rights and needs to be influential players within the region.
The United States and Iran as well as the United Nations, and the European Union must accept that other items are linked to the issue of nuclear enhancement including matters pertaining to Israel, Iraq, Lebanon and Afghanistan. Clearly the menu is vast and complicated yet it can be fractionated in ways that permit all issues to be addressed systematically and thoroughly. Agenda development is the right and responsibility of both primary parties, not just one.
Sixth, serious conflicts seldom can be solved immediately or by force. The integration of patience and persistence draw adversaries into the process of productive negotiations.
Many times it is more fruitful to commence substantive negotiations by addressing items that are less pressing than main menu items in order to develop an incremental pattern of progress that can carry over to address the more difficult and complex matters. While at times tedious and exhausting, this is where, when and how the real muscles of negotiation can be exercised. Indeed, the shortest distance between the points of origin of any conflict and its possible settlement outcomes is rarely a straight line.
Perhaps within and between some Western cultures it is expected that problems or conflicts should be solved directly and immediately, and that professional diplomacy is little more than endless and ineffectual talk that leads nowhere. However, the study of history and conflicts suggests otherwise. For example, the US-Cuba missile crisis of 1962 was ultimately resolved diplomatically whereby the US removed its missiles from Turkey in exchange for Russia first removing its missiles from Cuba.
Seventh, a moral issue is at stake: If negotiations are perceived to be merely perfunctory and as a pretext to military action then the future credibility of international negotiations by any nation for any purpose will be greatly diminished. If the United States or Iran takes military actions without having pursued a strenuous and good faith effort to negotiate then that war will be perceived as having been avoidable, and the lives lost and blood spilled a horrible and unnecessary waste. No one in good conscience, certainly and especially the leaders of the United States or Iran, should tolerate that prospect.
In conclusion, the world expects both nations to act toward one another in mature, responsible and productive ways in order that the United States, the region, and the world at large will benefit by their fair, functional and durable agreements.
The International Coalition of Concerned Mediators is committed to bringing to bear on this and other conflicts the best practices of professional negotiators and mediators. While not every dispute can be settled, many can be. And, everyone is well aware that to increase the likelihood of a settlement a realistic, persistent and good faith effort is required. To date that effort has not been either sincerely or effectively pursued.
Biography
The International Coalition of Concerned Mediators (ICCM) is comprised of over 1000 leading professional mediators and conflict management professionals from forty-seven countries. ICCM’s website is www.concernedmediators.org.
The Conflict Resolution Research and Resource Institute (CRI) is a non-governmental non-profit organization specializing in preventing, resolving and managing conflicts in the United States and around the world. CRI’s website is www.cri.cc.
by Bill Lincoln, Robert Benjamin, Polly Davis and Seth Kane
There is a point to be made and not to be forgotten: Conflict adversaries such as the United States and Iran are indeed the partners which each other needs and seeks if they are to prevent, manage and resolve dysfunctional conflict. While the nuclear issue is seemingly the focal point of the conflict, in reality it is the overall US-Iranian relationship that must be addressed if stability and real security is to be achieved in the region.
Within the certainty and fair provisions of international law, Iran – as do all nations – has the right to develop nuclear capabilities solely for peaceful purposes yet subject to the standards of the International Atomic Energy Agency and the Non-Proliferation Treaty. Similarly, the United States – as do all nations – has the right to be actively concerned about its own security and those of its allies. The principles of self-sufficiency of one nation and the security of another are apparent competing principles.
The International Coalition of Concerned Mediators (ICCM), a project of The Conflict Resolution, Research and Resource Institute (CRI) , respectfully submits that to date an intelligent, muscular, and realistic negotiation effort has not been undertaken by the United States and Iran to resolve their differences.
We are an organization of professional conflict management professionals whose daily work concerns the negotiated settlement of complex, difficult, and often intractable issues and disputes that many think insoluble – from matters of business, to geo-political and major public policy matters. Our careers have been dedicated to the study and development of practical expertise in preventing, managing and resolving conflicts. Our job as impartial players is to actively work to bring adversaries together, and to keep them engaged so that dysfunctional conflict can be addressed more effectively as well as equitably and efficiently.
We are deeply concerned that such professional attitudes and attention are not being exhibited in this situation. We strongly believe that action must be taken to effectively prevent what appears to be the very real prospect of war. Too many times in history the leaders of nations have proceeded to war without first sufficiently pursuing honest and productive negotiations free of threats and ultimatums.
Several nations within the European Union as well as Russia are proactive in attempting to ward off military confrontation. Similarly, the International Atomic Energy Agency (IAEA) is assertively fulfilling its mandate to objectively monitor and ensure Iranian compliance with the Non-Proliferation Treaty. Nonetheless, the broader international community is well aware that resolving the nuclear issue is unlikely if the animosity between the USA and Iran is not directly and effectively addressed -- and soon.
We fully acknowledge that negotiations involving the USA and Iran will not be easy. However, as seasoned and realistic conflict management professionals we also know that necessary channels for direct negotiations must be opened and engaged immediately.
Both Iran and the United States have rich cultures and histories, both have contributed to betterment of the world, and both are worthy of respect. However, both countries have also engaged in demonizing the other in ways that are all-too-typical in conflict escalation.
We are not interested in picking sides, casting blame or commenting on the substantive issues of contention. Based on our collective professional experience as impartial practitioners we would like to offer our insights on how the process of talks can be improved and advanced so that violent conflict can be avoided.
AS PROFESSIONAL CONFLICT MANAGERS WE PROPOSE THE FOLLOWING STEPS BE UNDERTAKEN IMMEDIATELY:
First, a key myth about negotiations must be dispelled, namely, that one can never negotiate with any other entity that it doesn’t trust.
To dispel such a hypothesis we only have to ask how much did North Korea and the United States trust each other in the cease-fire talks in 1952-1953? At first, absolutely zero. And how much trust existed between Israel and Egypt in the September 1978 Camp David Talks to end dysfunctional conflict between the two nations? Again, none. All through the cold war how much did the United States and the Soviet Union trust each other in disarmament talks? Not at all. And, of course, the current ongoing North Korea six party talks that have produced tangible benefits proceed with a distinct lack of trust. The key is can the disputing parties develop a process that they trust, a process that monitors the agreement and contains an enforceable future dispute resolution clause to address infractions, alleged breaches and unanticipated variables.
Countless historical examples demonstrate that negotiations have a chance for success despite past failures. Numerous and tireless efforts for peace were required in the case of Northern Ireland to finally achieve the levels of stability and cooperation that we witness today. Indeed, every successful peace settlement or rapprochement has succeeded in the face of skeptics arguing that talks were useless by citing past failures as evidence .
Second, negotiations cannot begin with “first, fair and final offers” particularly when such stances represent the insisted upon final results of a process that has yet to begin. Demands to accept certain specific substantive proposals as a pre-condition for talks are typically ‘non-starters’, and too easily can close down the possibility of negotiation before they even begin. Productive negotiations are comprised of bargaining ranges, not ultimatums.
Third, both the United States and Iran must stop focusing upon proposals that are non-inclusive of the other nation’s legitimate principles, i.e., “interests.” In so doing, the United States and Iran have to give more attention to their own as well as each other’s principles, and how such can be satisfied in equitable, practical and durable ways.
Both nations and all related entities must remember that conflict is rooted in a sense of competing principles such as a nation’s subjectively defined and valued notions of its sovereignty, its independence, its national culture and character, its security, its international political credibility and stability, its economic health, its functional amicability with other nations and so forth. It is such principles that “are at stake”, i.e., thus emphasizing the disputants as “legitimate stakeholders” in contrast to being merely arrogant or intransigent opponents. In doing so, one must be aware that the different histories, cultures, emotions, values and beliefs held by conflicting parties often play havoc with others’ definitions of rationality.
It follows then that conflict resolution occurs when disputing parties no longer sense that their respective principles are in dysfunctional competition with one another. Therefore both Iran and the United States must identify, discuss and clearly understand their own as well as the other’s principles, and to be ever mindful of them throughout negotiations. In fact, every proposal put forth must contain three components: (i) articulation of one’s own principles, (ii) verifiable case merits, and (iii) rational as to why the other side would even be seriously interested in considering the proposal, i.e., what principles/interests of theirs would be satisfied.
Fourth, procedural agreements are a vital stepping-stone to achieving substantive agreements.
Too often parties, “in the interest of time”, discount the importance of developing procedural agreements as mere preliminaries that can be rushed or even ignored. Procedural agreements are not “preliminaries”, but are prerequisites: A process of negotiations does not exist without them. Contesting parties negotiate procedural agreements that become the framework through which the causes will be discussed, issue items will be addressed and proposals will be negotiated. Below are some of the key functions, purposes and benefits of developing procedural agreements:
- Experience indicates that conflicting parties tend to negotiate procedural matters in the same way they intend to negotiate substantive matters, thus this initial step serves as a kind of dress rehearsal as to what to expect and what to do to enhance civility and productivity.
- By mutually determining who the primary stakeholders will be in the process an arena is formed that helps manage the conflict.
- By agreeing upon both internal and external behaviors as well as communication guidelines that will be permitted during the negotiations a framework for productive exchanges and conflict management is established.
- Procedural agreements can monitor substantive negotiations. After all, if a party cannot keep little agreements then what is the likelihood that they can keep big agreements – if a party cannot keep procedural agreements what is the likelihood that they can or will maintain substantive agreements?
- The conflicting parties become equal architects of the process in which they will collectively engage, thus developing senses of procedural equity and procedural ownership that contribute much to “procedural satisfaction” which is a central component for developing and maintaining durable agreements.
- While the contesting sides may have doubted that they could ever agree on anything, the process of procedural development has them working together, agreeing together, and getting into a “yes” habit.
- Procedural agreements can be used to specify various timelines thus hindering either side from using the pretext of negotiations as a stalling tactic.
Fifth, any productive negotiations involving the United States and Iran cannot constitute a “one issue agenda.” It must be acknowledged that both nations have several issues to be addressed with related proposals to be negotiated. Moreover, having multiple issues on the agenda increases the likelihood that quid pro quos will be identified and utilized successfully towards building a final agreement.
Not one, but both the United States and Iran are rightfully concerned for their need to strive for their own energy self sufficiency, free from dependency on other nations’ resources and commercial interests. Not one, but both nations are concerned about secure protection from nuclear threats within the region and to themselves. Not one, but both nations are concerned with what they deem and profess are their rights and needs to be influential players within the region.
The United States and Iran as well as the United Nations, and the European Union must accept that other items are linked to the issue of nuclear enhancement including matters pertaining to Israel, Iraq, Lebanon and Afghanistan. Clearly the menu is vast and complicated yet it can be fractionated in ways that permit all issues to be addressed systematically and thoroughly. Agenda development is the right and responsibility of both primary parties, not just one.
Sixth, serious conflicts seldom can be solved immediately or by force. The integration of patience and persistence draw adversaries into the process of productive negotiations.
Many times it is more fruitful to commence substantive negotiations by addressing items that are less pressing than main menu items in order to develop an incremental pattern of progress that can carry over to address the more difficult and complex matters. While at times tedious and exhausting, this is where, when and how the real muscles of negotiation can be exercised. Indeed, the shortest distance between the points of origin of any conflict and its possible settlement outcomes is rarely a straight line.
Perhaps within and between some Western cultures it is expected that problems or conflicts should be solved directly and immediately, and that professional diplomacy is little more than endless and ineffectual talk that leads nowhere. However, the study of history and conflicts suggests otherwise. For example, the US-Cuba missile crisis of 1962 was ultimately resolved diplomatically whereby the US removed its missiles from Turkey in exchange for Russia first removing its missiles from Cuba.
Seventh, a moral issue is at stake: If negotiations are perceived to be merely perfunctory and as a pretext to military action then the future credibility of international negotiations by any nation for any purpose will be greatly diminished. If the United States or Iran takes military actions without having pursued a strenuous and good faith effort to negotiate then that war will be perceived as having been avoidable, and the lives lost and blood spilled a horrible and unnecessary waste. No one in good conscience, certainly and especially the leaders of the United States or Iran, should tolerate that prospect.
In conclusion, the world expects both nations to act toward one another in mature, responsible and productive ways in order that the United States, the region, and the world at large will benefit by their fair, functional and durable agreements.
The International Coalition of Concerned Mediators is committed to bringing to bear on this and other conflicts the best practices of professional negotiators and mediators. While not every dispute can be settled, many can be. And, everyone is well aware that to increase the likelihood of a settlement a realistic, persistent and good faith effort is required. To date that effort has not been either sincerely or effectively pursued.
Biography
The International Coalition of Concerned Mediators (ICCM) is comprised of over 1000 leading professional mediators and conflict management professionals from forty-seven countries. ICCM’s website is www.concernedmediators.org.
The Conflict Resolution Research and Resource Institute (CRI) is a non-governmental non-profit organization specializing in preventing, resolving and managing conflicts in the United States and around the world. CRI’s website is www.cri.cc.
Tuesday, February 26, 2008
The Mediation Room
Mediation is a voluntary, non-binding process during which an impartial third-party, called a "mediator" or a "neutral," facilitates negotiations between the parties and assists them to make pragmatic, informed decisions to resolve the issues before them.
The mediator does not render any decisions on the merits of the dispute; instead, mediation helps the parties:
assess the perceived strengths and weaknesses of their position;
examine their needs and interests;
discuss settlement options; and
finalize a settlement agreement, if settlement is reached.
Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.
Why Choose Mediation?
Mediation often offers several significant advantages over the traditional litigation process:
Control - Mediation affords the parties their only real chance to control the outcome of the litigation. The parties are only required to negotiate in good faith and only reach a resolution when all sides voluntarily agree to any proposed settlement. Because they are not formally bound by the strictures of the law, the parties are also free to discuss, and agree to, creative solutions and remedies that a court would not be able to grant. After reaching a settlement at mediation, each party should leave with the belief that they worked out a satisfactory solution. At a trial or arbitration, the judge, jury or arbitrator will ultimately make a decision as to the merits of each side's position, and render only such judgment and award as the law will allow. More often than not, a judicial award leaves one party feeling completely dissatisfied.
Confidentiality - Mediation is a strictly confidential process. This has two benefits to the parties. First, the matters discussed in a mediation, cannot be introduced as evidence or otherwise used in any subsequent legal proceeding. Free from the concern that their willingness to compromise might be used against them later, the parties can discuss candidly the strengths and weaknesses of their position, their underlying interests, and options for settlement. Second, the confidentiality of the process is especially useful if the subject matter of the suit is particularly sensitive. During litigation, the matters revealed in depositions, hearings and at trial, are typically a matter of public record.
Communication - A significant number of disputes involve parties with a preexisting and sometimes on-going relationship - whether personal or business. Litigation tends to polarize the parties, entrenching their positions and shutting down the communication process. With the guidance of the mediator, the parties are encouraged to communicate in a more effective manner. This may lessen the tension and misunderstanding that previously impeded negotiations between the parties.
Cost - The professional fees charged by the mediator are considerably less than the direct and indirect costs incurred during an average civil case. In addition to direct costs such as legal fees, witness fees, travel and document reproduction costs (which typically total in the tens of thousands of dollars), the parties will also incur the indirect costs caused by the interruption of their business (or personal lives) while they or their employees attend depositions, hearings or meetings with their attorneys. The U.S. Attorney's study found that attorneys that mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in costs compared to taking the matter to conclusion at trial.
Time - A successful mediation results in a much shorter process than litigation. A five-year study on the use of mediation by the U.S. Attorney's office showed that the average mediation lasted only seven hours, and resulted in a settlement in 63% of all cases. By comparison, it will likely take over two years for the average general civil litigation case to reach a conclusion at trial. Mediation provides an opportunity for the litigants to resolve their dispute in a timelier manner, allowing them to get on with their personal or business lives.
Flexibility - In the event the parties do not reach a solution during the mediation, they are free to continue the dialogue at a later date, or continue forward with the litigation process. The process is only binding if the parties reach an agreement.
Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.
What Makes a Successful Mediation?
It is difficult to determine whether a mediation is "successful" merely by results. Most would consider a mediation that results in a settlement successful. Sometimes, however, the parties may decide that the legal issues involved are best left to the court to decide. That does not mean the mediation was "unsuccessful." What makes both scenarios examples of successful mediation is that the parties engaged in meaningful discussions, undertook some critical analysis of both sides of the dispute and reached an informed decision as to how they wished to proceed.
Parties that want to maximize their chances for a "successful" result should come prepared to do the following:
Engage in candid, honest discussions about the strengths and weaknesses of their case - Often, after living with a dispute for so long, parties (and their counsel) become increasingly convinced of the strength of their case. The parties must be willing to think critically about their position, and view their case as though looking at it through the eyes of the other party or the jury.
Remain flexible and consider alternative solutions to the dispute - In most cases, a court of law is only able to award monetary damages. At mediation, the parties can craft original, creative, and imaginative solutions that meet their needs and interests, but would otherwise be outside the court’s range of legal remedies.
Set aside sufficient time for the mediation and remain patient - While mediation is considerably faster relative to the months or years a case may take to come to trial, the process may take several hours. The parties should set aside a full day to participate in the mediation and remain patient while the mediator facilitates the discussions.
Bring someone with full authority to settle the matter - It is very important that all of the persons with decision-making authority attend the mediation. Not having a necessary decision maker at the table limits the chance of settlement. It may also appear that that party is not negotiating in good faith.
Mediation may not be right for every case and requires both parties to make a commitment to the process of mediation and display a willingness to compromise to be successful.
Thank to CKAMediation to provide this valuable insight into the basics of mediation.
Be sure to be following these series of minute briefings.
The upcoming topic will be dealing with intercultural mediation ... right here .... on this blog!
The mediator does not render any decisions on the merits of the dispute; instead, mediation helps the parties:
assess the perceived strengths and weaknesses of their position;
examine their needs and interests;
discuss settlement options; and
finalize a settlement agreement, if settlement is reached.
Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.
Why Choose Mediation?
Mediation often offers several significant advantages over the traditional litigation process:
Control - Mediation affords the parties their only real chance to control the outcome of the litigation. The parties are only required to negotiate in good faith and only reach a resolution when all sides voluntarily agree to any proposed settlement. Because they are not formally bound by the strictures of the law, the parties are also free to discuss, and agree to, creative solutions and remedies that a court would not be able to grant. After reaching a settlement at mediation, each party should leave with the belief that they worked out a satisfactory solution. At a trial or arbitration, the judge, jury or arbitrator will ultimately make a decision as to the merits of each side's position, and render only such judgment and award as the law will allow. More often than not, a judicial award leaves one party feeling completely dissatisfied.
Confidentiality - Mediation is a strictly confidential process. This has two benefits to the parties. First, the matters discussed in a mediation, cannot be introduced as evidence or otherwise used in any subsequent legal proceeding. Free from the concern that their willingness to compromise might be used against them later, the parties can discuss candidly the strengths and weaknesses of their position, their underlying interests, and options for settlement. Second, the confidentiality of the process is especially useful if the subject matter of the suit is particularly sensitive. During litigation, the matters revealed in depositions, hearings and at trial, are typically a matter of public record.
Communication - A significant number of disputes involve parties with a preexisting and sometimes on-going relationship - whether personal or business. Litigation tends to polarize the parties, entrenching their positions and shutting down the communication process. With the guidance of the mediator, the parties are encouraged to communicate in a more effective manner. This may lessen the tension and misunderstanding that previously impeded negotiations between the parties.
Cost - The professional fees charged by the mediator are considerably less than the direct and indirect costs incurred during an average civil case. In addition to direct costs such as legal fees, witness fees, travel and document reproduction costs (which typically total in the tens of thousands of dollars), the parties will also incur the indirect costs caused by the interruption of their business (or personal lives) while they or their employees attend depositions, hearings or meetings with their attorneys. The U.S. Attorney's study found that attorneys that mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in costs compared to taking the matter to conclusion at trial.
Time - A successful mediation results in a much shorter process than litigation. A five-year study on the use of mediation by the U.S. Attorney's office showed that the average mediation lasted only seven hours, and resulted in a settlement in 63% of all cases. By comparison, it will likely take over two years for the average general civil litigation case to reach a conclusion at trial. Mediation provides an opportunity for the litigants to resolve their dispute in a timelier manner, allowing them to get on with their personal or business lives.
Flexibility - In the event the parties do not reach a solution during the mediation, they are free to continue the dialogue at a later date, or continue forward with the litigation process. The process is only binding if the parties reach an agreement.
Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.
What Makes a Successful Mediation?
It is difficult to determine whether a mediation is "successful" merely by results. Most would consider a mediation that results in a settlement successful. Sometimes, however, the parties may decide that the legal issues involved are best left to the court to decide. That does not mean the mediation was "unsuccessful." What makes both scenarios examples of successful mediation is that the parties engaged in meaningful discussions, undertook some critical analysis of both sides of the dispute and reached an informed decision as to how they wished to proceed.
Parties that want to maximize their chances for a "successful" result should come prepared to do the following:
Engage in candid, honest discussions about the strengths and weaknesses of their case - Often, after living with a dispute for so long, parties (and their counsel) become increasingly convinced of the strength of their case. The parties must be willing to think critically about their position, and view their case as though looking at it through the eyes of the other party or the jury.
Remain flexible and consider alternative solutions to the dispute - In most cases, a court of law is only able to award monetary damages. At mediation, the parties can craft original, creative, and imaginative solutions that meet their needs and interests, but would otherwise be outside the court’s range of legal remedies.
Set aside sufficient time for the mediation and remain patient - While mediation is considerably faster relative to the months or years a case may take to come to trial, the process may take several hours. The parties should set aside a full day to participate in the mediation and remain patient while the mediator facilitates the discussions.
Bring someone with full authority to settle the matter - It is very important that all of the persons with decision-making authority attend the mediation. Not having a necessary decision maker at the table limits the chance of settlement. It may also appear that that party is not negotiating in good faith.
Mediation may not be right for every case and requires both parties to make a commitment to the process of mediation and display a willingness to compromise to be successful.
Thank to CKAMediation to provide this valuable insight into the basics of mediation.
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The upcoming topic will be dealing with intercultural mediation ... right here .... on this blog!
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