Four Tricks That Make Mediation Work

In the article, Four Tricks that Make Mediation Work,  accomplished mediator Richard Shore suggests the following:
  1. “Let the other side pick the mediator”- This is fine if the suggested mediator is competent, and has no glaring conflict of interest.  Better advice would be to ask for several suggestions, so that one might give the opposition the impression they have picked the mediator, but giving you some voice in the matter.  Do not discount the necessity of engaging an effective and experienced neutral. Bargain for certain qualifications, such as years of experience, membership in certain selective organizations such as the International Academy of Mediation or The American College of Civil Trial Mediators.
  2.  “Don’t argue about who is right”- Yes, move past the emotional stages as diplomatically and rapidly as possible.  However, by being hard on the problem, not the people, one can firmly assert a strong factual and legal position without being offensive personally. Grant that the other side has strong views, and point out that failing settlement, a group of strangers (the jury) will be deciding the matter. Abandoning advocacy completely may convey an inaccurate message of weakness, and that will lead nowhere.  Balance and diplomacy are the keys.
  3.  “Leave the litigators at home”- Great in theory, not in practice.  Very few clients are willing to have a second set of lawyers gear up for the mediation.  This idea drives up the transaction costs, and simply isn't realistic.  Sophisticated litigators are becoming quite adept at behaving appropriately during mediation, now an integral part of the civil justice system.
  4. “Deal with the hard issues last”- Staging discussion of issues is wise. Once the key dispute has been worked out (usually the money), the “drafting issues” such as release language, confidentiality and payment terms come into play. Often these are almost as difficult as the financial question, and discussing all at once is a rookie mistake.

The general advice given was sound, to a point, but as is always the case in legal proceedings, there is an opposing point of view, or at least a cautionary note.

To read the complete article, visit


John Upchurch is a principal mediator at the firm of Upchurch, Watson, White and Max. For more information visit John Upchurch's biography!

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