In a recent article, co-authors Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering reviewed the statute establishing Michigan's business courts, the rationale behind it, and a comparison of arbitration, as well as offering a protocol for pre-litigation mediation.
Effective joint sessions just don’t happen by giving parties carte blanche to talk; like all other aspects of the mediation process preparation and planning are essential. Two of the fundamental purposes of the joint session are to persuasively impact the opposing party’s best alternative to a negotiated agreement (“BATNA”) and enhance the effectiveness of the discussions that will take place between the mediator and each party during subsequent private caucuses.
A mediation process option in danger of going the way of the dinosaur is the joint session. Lawyers generally hate them and often deem them counter-productive and a waste of time – “Can’t we just get down to business, go to our respective rooms, and start the negotiation process.” While some mediators may agree, virtually every well-respected mediator training program encourages the informed, selective use of joint sessions.
All experienced litigators and mediators know there are a number of action steps that will maximize the potential of success for their clients at the time of mediation. I’ve created a new category in the blog that includes tips for successful medications, which have served me well during hundreds of mediations where I have either either as a neutral mediator or have represented clients.
The right mediator and the right process are critical. There is not one mediation style or one mediation process that fits all disputes. One of the greatest benefits of mediation, like other forms of alternative dispute resolution processes, is the mediation event can and should be flexible and specifically tailored by selecting the “right” mediator with the “right” process best suited to resolve your unique dispute. The mediator’s personal style, as well as the mediator’s knowledge, background and experience, are critical factors to consider.
