Recent years have seen a growth in institutionalised mediation — not least through the ICC International Centre for ADR. However, institutionalisation need not entail a mediation straightjacket. Practitioners have long known that where reaching a successful outcome is concerned, flexibility is vital. Properly directed, planned and tailored to the circumstances, this alternative mechanism is an essential tool.
In this blog post, we outline some of the key questions and points to address in order to secure a successful mediation — because asking the right questions prior to a mediation can be just as important as anything else that takes place at the mediation.
Which mediator to choose?
The choice of an appropriate mediator can make a significant difference to the prospects of success. However, bear in mind that familiarity and legal expertise can be both an asset and a hindrance. Strategic judgement when selecting a mediator is essential, as is engagement with all stakeholders.
The selection process
Does the dispute require an evaluative mediator who will examine the merits? Or is it preferable to have a directive mediator or a facilitative mediator who will work more on relationship building between the parties to help them come to a commercial agreement? This question may well depend on the stage of a particular dispute.
To pre-mediate or not, that is the question?
A preliminary meeting between the mediator, the parties and their advisers can help set the stage, identify areas where further information is needed and pinpoint key issues for the main mediation meeting. As mediation is a process, not an event, engagement early on can pay dividends when it comes to crunch points in later negotiation and face-to-face plenary sessions.
Do many hands make less work?
It is important to decide whom to bring to the mediation table. While a decision-maker is required, should this person have a commercial or legal background? What roles should lawyers and clients play? Should there be limits on the decision-maker’s power? If so, access to someone who can override the limits is critical. There is little more frustrating than a mediation in which one party is hamstrung by a lack of authority.
Those attending the mediation are often not those who are primarily tasked with presenting the case in a court or arbitration. For this reason, parties’ representatives – not just the lawyers – must buy into the process of mediation. Mediations are less likely to produce an outcome if they are a lawyer-driven, procedurally necessary hurdle. Business representatives may also be witnesses, as they may have personal experience of the relevant facts and, crucially, will bring the personal investment and proximity to the dispute that can assist in bringing creative ideas. Crafting your team and their roles will allow parties to seize the opportunity to develop a presentation and make it as compelling and effective as possible. This effort will demonstrate your conviction in a case.
Best time to mediate
A well-timed decision to pursue mediation can be an attractive option for all parties involved. At most, a party risks a day or two of time and minimal additional costs incurred. In the context of a potentially long and expensive court process, this is a small price to pay. The possible rewards to a party from a successful mediation are myriad: cost and time savings in relation to the in-house employees concerned; curtailing legal bills; and the possibility of a cooperative resolution that preserves the prospect of a future business relationship.
The opportunity for a flexible settlement offers many other non-monetary benefits. Nuanced and creative agreements may accommodate the particular commercial goals of each party more than a court judgment or arbitration award could.
In addition, the chance for each side to articulate complaints and potentially explain historic grievances in a moderated yet extrajudicial setting may offer the possibility of each side appreciating the other side’s goals and motivations; analysing the shared business relationship; and planning a productive and shared route forward. Putting work in at the outset, in order to get the fundamentals of a mediation right, is guaranteed to pay dividends as parties seek a cost-effective resolution to their dispute.
*Disclaimer: The content of this interview does not reflect the official views of the International Chamber of Commerce. The opinions expressed are solely those of the authors and other contributors.