ACCL References & Links

The Key Elements of Guided Mediation

  • Guided Mediation is not a “one size fits all” process. Rather, it is a collection of tools used in mediation. The mediator uses those tools to make recommendations – based on the mediator’s impasse diagnosis – to meet the varying needs of the parties and help them understand whether and when it is in their best interest to litigate or settle.

  • A mediator is brought on board as soon as possible even if not all the parties are ready to resolve a dispute.

  • At the start of the process, the mediator diagnoses the underlying causes of stalled negotiations or threatened litigation between the parties. Because mediators can confidentially talk with parties and lawyers they can uncover causes of impasse that the parties and their lawyers are unlikely to reveal to one another. This is done in a pre-mediation phase before settlement discussions, changes in offers, or demands. While legal briefs or mediation statements may be useful, the impasse diagnosis involves much more than reading a legal brief. Often external issues drive impasse including differences in negotiating style, influences of non-parties such as insurers, psychological issues affecting decision makers, and sociological issues within organizations. Reliance on opinions of lawyers and experts may also lead to impasse. Impasse is seldom just about money.

  • Based on the diagnosis, the mediator as a process facilitator helps create a collaborative environment in which the parties can agree on the information needed for productive negotiations. This can include production of documents or other information, meetings of experts or obtaining third party opinions on major legal or factual disputes. Too many lawyers do not understand the importance of a pre-mediation phase prior to negotiation phases, particularly for complex cases. Lawyers and parties need to understand that successful mediation is seldom a one-day event.

  • The use of Zoom can be very useful for pre-mediation activity even if the eventual settlement discussions are in person.