Originally from Dispute Resolution Journal

While there are many reasons why parties choose mediation over litigation and other forms of ADR, none could be as compelling as its high success rate. More than 85% of those who mediate their disputes settle successfully. This kind of success creates an overwhelming pressure on the part of the mediator who must live up to the high expectations of disputants. To help the mediator meet these expectations, John Madden whips up a recipe for success in mediation based on his experience as a practitioner. While Madden concedes that there’s no such thing as a “magic” recipe for success, this article will show the mediator how he or she could make the mediation experience as close to “magical” as possible. Based on the author’s presentation at the International Arbitration Super Conference in Salzburg, Austria, in June 2000, the following piece offers tips on how to make the mediation process a richer, more satisfying, and successful experience for everyone involved.

My first mediation training in 1990 left me with the feeling that the mediation process seemed vague and remote. I wondered if there was any practical application to be seen, at least on a wide-scale basis, in the construction industry, my area of legal practice.

Three years later, I was invited for the first time to serve as a mediator and to meet with two parties for a $25 million dispute. The representative of the arbitral institution that invited me described the two parties and their legal advisors as ready for a pitched battle whenever everyone was in the same room, and advised that I would probably only last about 15 minutes before I or someone else left the room refusing to proceed. I set about meeting with the parties to explore whether they knew enough about their dispute to be ready for mediation. After four hours, it was apparent that an audit needed to be conducted before either party could feel a sense of certainty with regard to the costs expended on the construction project. I recommended that they conduct such an audit, and if they so choose to, to contact me again in the future. I truly never expected to hear from them again.

Six months to a year later, I received a telephone call from the chambers of a judge of the U.S. federal court in New Orleans.1 The legal advisors with whom I met previously as well as two other parties involved in the same project were now inquiring as to my availability for “global mediation.” Apparently, the federal judge who was to preside over what was to be a two-month trial was disinclined to tie up his courtroom for such a lengthy, complicated case, and requested that the parties resolve their dispute another way.