Negotiators often hinder their chances of resolving cases by making mistakes prior to, and/or during, the mediation. JAMS Neutral Judge Lynn O'Malley Taylor and Rachel A. Gupta share five common mediation mistakes and offer tips on how to avoid them to maximize your chances of settlement.
Read MoreIn my role as a litigator, and generally in my personal life, I have certainly been guilty of this. As a neutral, however, my default is to talk less and listen more. I cannot help the parties move towards resolution unless I first understand the issues from each party’s perspective and find ways to facilitate a mutual understanding between them. While I don't have to think twice about this in mediation, sometimes it is as though a switch turns off in my brain when I’m faced with certain types of conflict in my personal life. I am curious—how many trained conflict resolution professionals feel the same way? You have no trouble focusing on listening and understanding at work, but in your personal life, you sometimes default to listening with the intent to reply? For me, identifying my triggers and consciously working on reconditioning my reactions is a good lesson and reminder that people respond differently when confronted with different types of conflict.
Read MoreThis quote summarizes, in my opinion, an attribute that separates successful mediators from the rest of the pack. I realized years ago during my first mediation training that to be a valued mediator meant I needed to stop acting like a lawyer and never act like a judge. Over the years, I watched very successful litigators-turned mediators struggle with this mindset. They treated the mediations like depositions—identifying the issues they wanted to discuss, leading the parties where they wanted to go, and ignoring feedback from the parties to the contrary. In mediation, however, the parties must lead the way. Only by listening to the parties can the mediator help them identify what issues must be discussed to reach resolution and whether common ground may exist for a negotiated outcome. It’s not about what agreement the mediator thinks is the right outcome, but rather, helping the parties negotiate an agreement the parties believe is fair.
Read MoreWhen faced with threatened or filed litigation by current or former employees, many companies never consider alternatives to expensive protracted litigation. Instead, companies insist that they will never settle and will litigate for as long as necessary. The rationale behind this “no settlement” policy is supposedly to deter additional employee litigation. The reality is, however, that this internal policy may not prevent or minimize the instances of litigation. Moreover, these companies do usually settle prior to trial, but often only after years of legal expense and potentially damaging discovery. Accordingly, a blanket “no settlement” policy may not be in the best interests of the company’s bottom line. There are three instances where companies should put aside their instinct to litigate and explore mediation.
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