Much has been written advising of various tips to make mediations work. Well, as the economy tightens, it seems we are seeing more actions that cause mediations to fail. Here are a few.
Mediating too early: Early stage mediation is a very effective method to minimize risk, and control transaction costs. However, for these to succeed, it is necessary for the parties to agree that they will mediate on the information possessed, or to engage in a pre-mediation exchange. Early mediations fail when significant unknown information is brought out, requiring further investigation or formal discovery.
Selecting the wrong mediator: It is a simple fact that certain mediations require core interpersonal skills. Death, catastrophic injury and employment cases require a mediator who is good with people, and possesses empathetic listening skills. A head banger or mediator with an aggressive and evaluative style can kill a deal in emotional cases. Similarly, complex multi-party cases with complicated factual issues require a firm hand that will manage the process and understand the issues. So find a mediator trusted by both sides, with the skill sets for the people, process and issues.
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