Originally from:

AAA Handbook on Mediation - Third Edition

NAVIGATING THE MEDIATION PROCESS: OVERCOMING INVISIBLE BARRIERS 
TO RESOLUTION

Bennett G. Picker

I. Introduction

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 chapter highlights these invisible barriers and suggests approaches for advocates and mediators to better navigate the mediation process and maximize the potential for successful outcomes.