participants and the creativity of the mediator. There are many ways in which mediation can be tailored to the needs of the parties and the particular issues in question. Examples include:
1. Setting the basic format for interaction between the parties and the mediator;
2. Use of information to provide an objective foundation for negotiations;
3. Use of technology (including online mediation);
4. A mediator can facilitate submissions (joint or several briefs) on legal or factual issues;
5. Presentation of “best-case” presentations for the benefit of business decision-makers;
6. Engagement of one or more experts to provide reports on key technical issues.
• Communications enhanced: a significant value of mediation – and where it is often superior to unaided negotiations – is in creating an opportunity for parties to communicate effectively. As has been said, “Mediation can introduce light where before there was only heat.” In the course of disputes, business managers and their advisers become emotionally invested in the position which in itself creates a further obstacle to meaningful discussion and resolution. Part of the role of a mediator is to bring the parties together in an environment in which they can have their say but at the same time establish new and more constructive ways of interacting.
• Commercial reality testing: experienced mediators – especially those with business experience – may be particularly qualified to help parties examine a conflict or an issue within the context of best and worst alternatives to a negotiated settlement as well as larger business aims. Mediators can routinely help parties confront the hard realities of their established positions, highlighting weaknesses and drawing attention to the compounding of risks and costs that accompany litigation or arbitration. Without the confines of a legal/factual focus (which is at the heart of litigation or arbitration) mediators can also help parties focus on underlying interests: strategic, economic and personal.
ReSolution | Mar 2020
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