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Navigating the Mediation Process

Amy Mariani practiced law for 20 years on behalf of individuals and corporations in employment, personal injury, and business-related contexts. In 2016, she became a full-time neutral party and transitioned into mediation. Now she helps businesses and individuals move out of conflict and into the future.

Navigating the mediation process—with willing participants—can be tricky. What should you expect? Where do you start? Amy shares where she starts and what the process looks like.

How to select the right mediator

Amy believes that choosing the right mediator hinges on the personalities and the issues involved. Many former judges offer mediation and arbitration. They can be great resources when you have stubborn people who need to hear, “You will lose, you will lose big, and here’s why.” If you’re in that kind of situation, you need that type of authoritative mediator.

If you are dealing with people who are less experienced in the legal system or less certain of the results they want, start with a mediator who is more facilitative and allows parties to explore their options and craft solutions. If the parties get stuck, the mediator can guide them toward a solution.

So if both parties decide to enter mediation, how do they utilize the process fully?

Step #1: Define your interests

Amy starts by asking the parties to define what their interests are. What do they want to get out of it? What’s most important?

Side Note: They might need something that mediation can’t provide. It might be clarity around an issue of the law that isn’t defined. That will need to go to litigation because a judge has to decide what the law is.

If they’re dealing with a business dispute, she’ll start by looking at things like money, the competitive environment, the long-term versus short-term goals, etc. She has her clients make a thorough analysis of potential outcomes. How can they maximize their five-year plans through each available avenue?

She wants them to think about the overall health and value of the business as much as resolving the particular dispute. If they think about the future, they’ll make better decisions for their business’s long-term success.

What is your BATNA?

What are the risks and benefits of proceeding? Typically, until you’re further down the line and the lawyers have engaged in a full discovery process, the lawyers aren’t going to be able to thoroughly evaluate risks and benefits. So they need to start the process early so she can utilize information from both sides. What is their best alternative to a negotiated settlement? What is the worst alternative to a negotiated agreement?

How important is the truth?

A litigator will say that all that matters are the facts and what can be proven. A mediator will say that the truth is everything. The mediator wants both parties to reach a mutually beneficial agreement.

Amy used to be a litigator, and she was a pit bull. She had to shift to a “Let’s build a bridge to find a resolution” mindset. A mediator has to be aware that perception of the facts is everything. One person’s perception alters how they see the world, and their “truths” will be different because of that lens.

How mediators remain unbiased

Attorneys tend to put on a show for their clients to make them feel secure that they know what they’re doing. Amy pushes back against the attorneys by asking tough questions of both sides—questions that the other side will ask, the arbitration will ask, a judge will ask, and a jury will ask. She wants them to think about the questions as they make evaluations and determinations in the process. She takes the damaging information from each side and helps them navigate it.

Learn more about navigating the mediation process—and how to prepare for it—in episode #373 of the Negotiations Ninja podcast!