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Mediation Strategy: A Mediator Retained Only As A Consultant!

July 11, 2012

In Florida, mediators who have been jointly selected to serve as the official mediator in any dispute must avoid any active uni-lateral “consultation”, (one-sided assistance to one party to the possible disadvantage of any other) with the parties to that mediation.

Accordingly, in avoiding even the appearance of any such one-sided advice, (as differentiated from, for example, mutual generic presentation recommendations for the mutual benefit of all of the parties) many mediators will often omit any advance conferencing with the parties.

(A mistake, I think, for the general purposes of all parties trying to find success by the mediation process.  And the subject of another day?)

Fortunately, most attorneys will always welcome any personal or telephone conference, in advance of mediation, with their assigned mediator.  Any advice is always helpful to finding resolution.

However, increasingly, better attorneys, serious about making their very best efforts at mediation resolution, are actively hiring independent uninvolved mediators and then actively consulting with them for unilateral advice in maximizing their mediation opportunities!

It is a new and available mediation tool that you should also consider.

Particularly in a state that mandates only “facilitating” mediators and frowns upon “evaluative” mediators in our mediation processes, such an independent view, from a non-serving “consultant-mediator”, allows one party a much wider and more varied service and advice regarding your upcoming mediation than only from the assigned mediator who must assist both sides, only generally, if at all.

You may be unsuccessful, this time, in obtaining agreement upon your “favorite” mediator at your next mediation.  However, that does not preclude you from using that same mediator’s assistance in helping you be better prepared for another mediator.

And, with the proper selection of such a mediation consultant, even assistance with evaluations of your position and recommendations on proven negotiation technique would be proper and valuable subjects to seek assistance upon.  Like judges who observe larger number of actual trials than do “reporter” services, so do mediators observe more resolutions than most results shared by other methods, including word of mouth.

Why not take advantage of such experience that should be available for the asking?

Such consultant services may also be quite reasonable, financially.  Many mediators would consider such occasional unilateral service, within reason, as simply another reasonable marketing tool to demonstrate their mediation experience.  But, even at a modest charge, similar to the use of any other consulting expert, the return on your investment should be well worth the cost (or it should not be repeated!)

And, since such a consultant service would and should be equally available to any side or any party, such advice by a professional mediator who is not retained to act as the neutral in that matter should be another valuable resource for any party who wished to increase their opportunity for success.

After all, it is the unspoken goal of every mediator, serving or not, to do anything that would increase the ability of either side of any dispute to find a voluntary resolution.  Or, at least, to reach that point that allows clear identification of the best alternative to trial.

There are a lot of practical, general suggestions available from those mediators who are daily witnesses to mediation techniques that work and those that do not.  Why would you not want to know a few more than you may presently know? (Or, at least read about them?)

Presently trial lawyers retain  consulting experts in almost everything they do, before litigation, in litigation and before and during trial.  Why would you not add this simple suggestion for consideration upon the most lucrative portion, mediation, of most trial attorneys’ practices?  Attorneys may make their reputation at trial.  But, better attorneys know they make most of their income from resolution, with or without mediation!

In short, paraphrasing as the U. S. Army once sloganed:  “Be all that you can be (at mediation)”

Another interesting strategic thought to consider:  Why not actively associate a skilled attorney-mediator as an additional consultant for your client to participate actively in your mediation?

Have you ever wished someone was sitting in the room with you at mediation who really understood mediation?  When it comes to negotiation, two heads are often much better than one.  And, what if that person was also able to assist you, totally unilaterally, with related legal issues as a legal consultant?

(Just make sure that attorney-mediator realizes that in that instance he may now actually be practicing law!)

Mediation is the major source of your litigation income.  As in preparation for any other part of litigation, actively using consultants to prepare you to better present your client’s cause, is something to consider carefully before NOT utilizing one.

Once again, just a few thoughts for expanding your consideration of how you might better use your own choice of a mediator.  (Particularly if that choice may not be serving in your upcoming mediation!)

And, the ultimate mediator of your next dispute may well thank you both!

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