Co-authored with colleague Adam J. Halper, I am pleased to share this article written for New York Dispute Resolution Lawyer. Originally printed: NYSBA New York Dispute Resolution Lawyer | Fall 2018 | Vol. 11 | No. 2.
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“Should I attend a mediation? What is my role?” The answer to the first question is simple. Parties in most instances must attend a mediation. Court rules and mediation providers often require it, and it is certainly a best practice. Most mediators would not go forward without the parties in attendance.
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We know when a mediation begins. The better, and often more challenging questions are: when has it ended and was it successful? If at the end of one or more agreed-upon sessions the parties settle all of the issues in the dispute, the answer is an easy one—perhaps.
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In a mediation, after learning the basic facts and issues in dispute, the mediator will work to identify each party’s interests and needs; this is different than a party’s “wants.” If a party has not already focused on her interests and needs, the mediator will help her do so. In this way, the mediator can help each party craft proposals that address her interests and needs and those of her adversary. The beginning of the road to settlement.
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The parties have been at it for a while, without coming to an agreement. When is the mediation “over”? In any mediation, the parties and the mediator may view the give and take differently. From the parties’ standpoint, they may think it’s over as soon as they receive the first demand or offer from the other side. If that demand or offer is significantly higher or lower than they expected, they may immediately feel that they are too far away for the mediation to be successful.
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When going forward in mediation, quite often the parties have the opportunity, at least in the first instance, of choosing the mediator. This raises some questions: What type of mediator are they looking for? What skills should the mediator have to best enable him or her to help the parties resolve the dispute?
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