Ensuring a meaningful mediation begins with the structure of mediation itself.

Ensuring a meaningful mediation begins with the structure of mediation itself.

Most mediation sessions begin with an offer or a demand, sometimes given after the parties provide brief presentations that resemble loose closing arguments. From there, participants often spend the rest of their valuable negotiating time attempting to bend key issues and concepts around their initial demands. This approach gets it backward.

As lawyers, we don’t begin preparing our clients for mediation by stating what we will ask of, or offer, the other side. Instead, we first explore the risks and opportunities of settling or going to trial through a vetting of key issues , interest, options, etc. Then, we use that analysis to inform and justify the options that we will present at mediation. The demands/offers/options that we present early in mediation make sense to us, because we’ve undertaken this analysis first.

But your opponents didn’t participate in your analysis. So, they will often view your early offers/demands as being unjustified or nothing more than an attempt to drop an early anchor to eventually settle upon some midpoint. This is why we often hear an early warning from mediators to not overreact to the other side’s first move – which often happens anyway.

Mediation should begin with a mutual vetting of key issues and negotiation concepts. Options should be discussed only after the parties understand – but not necessarily agree with – each other’s underlying rationale for taking certain positions (based on objective criteria when available). When this approach is properly incorporated into the mediation process, the parties are more likely to achieve a more satisfying result.

MLM takes a different approach to mediation , which was developed by top leaders in the fields of negotiation and mediation.

To learn more, or to get a conversation started, please contact Marc Menkveld at marc@menkveldlaw.com.