Navigating the Mediation Process: Overcoming Invisible Barriers to Resolution - Dispute Resolution Journal - Vol. 61, No. 3
Bennett G. Picker is a partner in the Philadelphia law firm of Stradley, Ronon, Stevens & Young, LLP, where he concentrates his practice in mediation and arbitration. Mr. Picker is a Fellow of both the International Academy of Mediators and the American College of Civil Trial Mediators, and serves on the panels of the American Arbitration Association and the CPR International Institute for Conflict Prevention and Resolution. He is also a member of the Executive Committee of the American Arbitration Association’s Board of Directors. Mr. Picker is the author of the “Mediation Practice Guide: A Handbook for Resolving Business Disputes” (2nd edition) published in 2003 by the ABA Section on Dispute Resolution. Mr. Picker’s e-mail address is email@example.com. Author’s Note: In order to protect the confidentiality of participants, the anecdotes in this article represent a composite of actual mediations.
Originally from Dispute Resolution Journal
Mediation involves many key relationships beyond that of plaintiff and defendant that could present barriers to resolution. The author identifies some of these relationships, shows how they can create barriers to a successful mediation, and offers suggestions for overcoming these barriers.
Most mediation advocates and party representatives, when preparing for mediation, primarily focus on one relationship that significantly impacts resolution—the relationship between plaintiff and defendant. Given their background as trial lawyers, most advocates largely concentrate on the positions of plaintiff and defendant when considering facts, rights, obligations, claims, defenses, experts, damages, credibility issues and probable outcomes. More sophisticated advocates also explore another dimension of the relationship between plaintiff and defendant—their underlying needs and interests, including strategic objectives, timing, reputation, the potential for restructured relationships and the need to avoid future disputes.
The process of mediation, however, involves many more key relationships, beyond the primary one of plaintiff and defendant, which are often invisible to the mediation participants and their advocates and frequently present barriers to resolution. These relationships include those between: (1) representatives of each party, (2) the client and its outside counsel, and (3) the participants and other “stakeholders” in the dispute. This article highlights these invisible barriers and suggests approaches for advocates and mediators to better navigate the mediation process and maximize the potential for successful outcomes.