Originally from Dispute Resolution Journal

While it’s no secret that more and more people are discovering the benefits of mediation, it’s not always clear why some parties are more successful at it than others. This article by Peter Comodeca identifies a number of key factors that disputants and their counsel must consider before pursuing mediation.

Regardless of one’s position on mediation, it has become an integral part of the legal process in the United States. Given the crowded dockets most courts must contend with, the use of alternative dispute resolution methods, such as mediation, is only likely to increase in the future.

It is imperative that lawyers and clients be familiar with the fundamental aspects of mediation. They must be able to recognize when it may be in their best interest to mediate, or how to proceed when required to mediate by court order. Proper knowledge of mediation techniques can help an attorney avoid unnecessary surprises in the process.

This article will help attorneys identify issues to consider before agreeing to mediation.

Parties involved in a dispute participate in mediation either voluntarily or involuntarily. Often, parties recognize the benefits of mediation and choose to mediate voluntarily. The most common method used to commence mediation is by entering into a contract or agreement identifying mediation as a dispute resolution mechanism.

In the absence of a contract requirement, the parties may agree, after a dispute arises, to pursue mediation to resolve the dispute. However, mediation is not always chosen by the parties. It can be imposed involuntarily. Generally, this occurs pursuant to a court order or directive.

Involuntary mediation also occurs when the parties are subject to a governing policy or regulation requiring mediation of which they were unaware. For example, some standing court procedural rules require mediation as a preliminary step to either arbitration or litigation.