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business successYou and your client have decided to mediate. That is the greatest challenge in the process. As advocates, we can often become wedded to our legal positions but mediation calls for a more open-minded approach. Mediation requires you to think about things from your adversary’s perspective and be creative. The day of mediation can often be the most important one in the case. Be prepared. Be patient. Be focused. The process can be a taxing one on both lawyer and client, forcing hard issues to be addressed. The stakes are high, but so are the risks and costs of litigation. If you have decided the time is right to mediate, then the incentives are there too. Below are five tips to aid in the effectiveness of the mediation process.

1. Consider Selecting an Expert Mediator Rather Than an Expert in Subject Matter. While the parties will ultimately decide if there is a settlement to be reached at mediation, it is typically a skillful mediator that will help pave the way for a potential resolution. Selecting an experienced mediator to assist in the process is therefore essential. The key question faced in the selection of a mediator is whether you want an expert in the subject matter at issue in the dispute or simply an expert mediator. Most parties initially seek an expert in the subject matter in question, but an experienced mediator is often equally, if not more, valuable. There are some situations where familiarity with the issues can aid in the effectiveness of the mediation process. But a facilitator with well-honed mediation skills is usually adept at becoming familiar with new subject matter rather quickly. I have seen many mediations fail because of a mediator that simply was not skilled enough at moving the process in the right direction and “handling” parties in the soundest manner. On the other hand, I have come to appreciate the ability of an accomplished mediator to deal with even the most difficult of clients or adversaries and aid in an unexpected resolution. It is worth considering whether you really need someone familiar with the subject matter to understand the issues. Most of the time, you will find yourself better served with a proficient mediator.

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