Business people and their attorneys recognize that mediation is a cost-effective, low risk process with a remarkably high success rate when conducted by an experienced mediator. As mediation has become increasingly popular over the last 20 years, the process has evolved in some important ways. But in order to take full advantage of mediation as a way to solve problems for clients, it is important to understand this evolution.
Back when mediators when mediators were trained in the process, they were taught to review the parties' briefs, begin the day with a joint session and then work with the parties in separate caucuses until resolution could be reached. Counsel was called upon to make opening statements during the joint session, which sometimes resembled arguments to a jury. The difference between mediation advocacy and litigation advocacy was not always clear.
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