NUTS AND BOLTS OF MEDIATION
Practicalities become paramount
once the benefits of mediation are clear and the parties are interested
in exploring the possibilities further. These practicalities are
particularly important for parties that are more familiar with litigation
(or other options). Fortunately, the mediation process is quite
benign and can readily be adjusted to suit the wishes of the parties.
Parties Control Style and Process.
Not only do the parties control the outcome of the mediation, as
discussed above, they also determine the mediation’s style and processes
and can benefit from its flexibility. Choosing and agreeing on a
suitable mediator is an important step that should be based on the
needs of the parties and the fit with the mediator’s expertise and
style. The parties can have significant input into the process and
will be guided by the experience of the mediator in ways that increase
the likelihood of reaching an efficient and satisfactory outcome.
For example, meetings can be held at times and places to accommodate
the parties, at the site of the dispute when helpful, or by telephone
Mediation Process. The
processes used in mediation vary according to the circumstances
of the dispute and the style of the mediator. Typically, after some
amount of background spadework to gather information and convene
the parties, the mediation begins with all the participants together
for a period of ground setting. Often, the mediator gives the parties
an opportunity to make initial statements. From that point, the
mediator may continue to work with the parties jointly or may separate
the sides and have private meetings with each side as appropriate.
While some mediators place great emphasis on shuttling between separated
parties, often the greatest progress is made when the parties are
able to hear directly from the other side what their goals and concerns
The mediator works with the parties to help them determine
the best solution to their problems, rather than seeking to impose
a solution from the outside. This ensures that the parties can live
with the outcome, for there is no binding agreement until the parties
reach an outcome that is satisfactory to them. When a satisfactory
outcome is reached, the mediator can help with at least an outline
of the agreement, which the parties generally will sign before leaving
the mediation, although counsel may continue to smooth out the language
and complete documentation of the settlement.
Timing of Mediation.
A dispute can be mediated at almost any stage, although
there tend to be stages at which it is more natural to turn to mediation,
including the point before the complaint, after some discovery,
prior to summary judgment motions, after summary judgment motions
have been decided, prior to trial, and even after decision by the
trial court but prior to the appeal. Of course, the earlier mediation
can be employed, the greater the potential savings and benefits
for the parties. It is worth emphasizing that the time prior to
initiating litigation is a productive point at which to consider
bringing in a mediator: many matters can be resolved through mediation
soon after the initial dispute has arisen or demand letters have
been sent. The overwhelming majority of litigated cases settle at
some point, but those settlements are often the result of parties’
intense fear of losing control over the outcome, and commonly yield
divide-the-baby settlements that are not optimum for either side.
Mediating to more rationally resolve the dispute, often by expanding
the analysis to consider the underlying goals and needs of the parties,
is far superior to bandying about settlement numbers on the courthouse
Choice of Neutral.
While the neutrality of the mediator is fundamental, other attributes
are also critical, including personality, temperament, and the parties’
ease in working with the mediator. One important substantive issue
is whether the mediator favors a facilitative or evaluative style.
That is, does the mediator work to facilitate the efforts of the
parties to resolve the dispute based on their own determination
of what is fair and proper, or does the mediator weigh in with a
neutral evaluation of the situation based on the mediator’s own
experience? Although retired judges often are viewed as naturals
due to their judicial experience, they may in fact be better arbitrators
than mediators. Some are so accustomed to deference or so highly
value their own determinations that they are not able to roll up
their sleeves and get deeply involved in helping the parties see
their way to common ground. Finally, working with an independent
mediator – who does not have the actual or perceived conflicts of
a large firm – is also a plus.
When available, the best choice of neutral is a trained
mediator who has subject matter expertise in the antitrust or commercial
issues at hand. Selection of a mediator with subject matter expertise
is desirable to keep the mediation process moving forward and ensure
that it does not bog down from the need to give frequent explanations
to the mediator. It would be unfortunate, for example, for the disputants
to begin making progress only to lose the momentum when a mediator
without adequate antitrust background pauses for a tutorial on the
differences between per se and rule of reason analyses. At the same
time, a neutral antitrust lawyer alone is not sufficient, because
the value in mediation comes from a facilitator who has the training
and skill to help parties circumvent the snags and squabbles that
could prevent them from resolving their dispute.