Originally published in the Bar Bulletin - Volume 31, Issue 1 - September 2012.
Mediation has become an institutionalized part of litigation, particularly for employment disputes. The question is no longer whether to mediate, but when, with whom, and how to achieve the best result. Institutionalized mediation, however, has profoundly changed mediation, particularly when mandated early in litigation.
This article will identify the bottlenecks to successful mediation and how to avoid them. Perhaps the biggest change — one which mediators and litigants should anticipate — is that mediations often require multiple sessions or significant follow- up. Under standing this phenomenon is crucial, or the parties (and mediator) may give up on what will ultimately be a successful process, resulting in increased acrimony and litigation costs.
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