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  • Inside Track
    January 17, 2018

    Using Mediation to Find the Path to a Favorable Resolution

    Litigation is a costly endeavor – in time, money, and the stress involved. With more cases now heading first into mediation, what are some ways to maximize the chance of a durable resolution for both parties?

    Jan. 17, 2018 – Lawyers who are knowledgeable and skilled in the mediation process are best positioned to obtain favorable results for their clients.

    But how do you get there?

    Two experienced mediators offer their advice: Michael D. Rust of Winnebago Conflict Resolution Center Inc, Oshkosh; and Jill Hamill Sopha of Sopha Mediation LLC, Pewaukee. Rust and Sopha spoke on mediation at the 2017 Health, Labor, and Employment Law Institute in August in Wisconsin Dells.

    Benefits of Mediation

    “Mediation is an opportunity for the parties to say their part, why they are in litigation to begin with … and they can say it in their own way,” Rust said. Clients in mediation can say all that matters to them, even if it’s not admissible in court.

    Mediation can save costs – such as the time, stress, and cost of discovery and protracted litigation. And it allows clients to be more in control of resolving their cases in a way they are comfortable with. “That results in a more durable agreement,” Sopha said.

    Attorneys need to think long and hard about how much discovery they need to resolve a case in mediation, Sopha advises. Discovery can be protracted and expensive, yet, in most cases, doesn’t give a clear answer to the disputed facts or law. “Often attorneys need a lot less discovery than they initially think,” she said.

    Choosing a Mediator

    It is important to choose a mediator who is well trained in mediation, Rust said. Mediators are trained to be empathetic listeners to encourage the parties to talk. And this information is used by the mediator to help clients become more comfortable with resolving the case.

    Attorneys should consider the personality of the mediator, the mediator’s experience, the process the mediator uses, and what will be most persuasive to their client and to the opposing counsel and their client, Sopha said.

    Preparation is Needed

    It’s important to prepare the mediator before he or she meets with the parties. Do you want the mediator to just listen, or to direct the process? “Lay out for the mediator how you want them to be involved during the process,” Rust advises.

    Attorneys should also prepare the client before meeting with a mediator. Attorneys should discuss the role of the mediator, the weaknesses in their case, as well as the negatives of not resolving their case – time, stress, and cost of litigation, for example. It’s important that clients understand that both sides are in mediation in order to determine whether there’s a resolution outside of litigation, Sopha said.

    A Process toward Resolution

    There are no shortcuts with mediation – it is a step-by-step process that needs be followed. “Following the process is important and will lead to a better resolution than skipping forward or rushing,” Rust said.

    Mediation can be extremely helpful. But, in the end, not every case can or should resolve through mediation. However, even with cases that end up in litigation, “often there’s still a benefit from mediation,” Rust said.

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