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Mediation: Refuse It, Use It or Lose It |
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By: Richard G. Halpern As mediation continues to grow in popularity, it also continues to be a useful tool for the defense to achieve its goals at the plaintiff’s expense. The principle misapplication of mediation is using it as a first step in the settlement process, before real negotiation has taken place. This provides a great boon to the defense. The appropriate use of mediation occurs after negotiation has reached an impasse. Both sides have presented their perspectives, positions, and arguments, but no solution to the dispute has materialized. Still, the parameters of a settlement have been established, so mediation is an opportunity for both sides to move toward an agreement. It is important to understand the function of the mediator in this process, which is to achieve an agreement and an end to the dispute. The quality of the agreement, whether it is just or fair, is of no concern to the mediator. The mediator seeks agreement, period. The non-judgmental stance of mediators makes them the ideal unwitting collaborators for the defense, which often seeks to use mediation for tactical purposes. When mediation is used in the proper sequence, following good faith negotiation, it frequently results in the defense having to spend more money to resolve the conflict. But if mediation occurs without negotiation, the opposite result occurs. Thus the defense will often try to move to the mediation phase at the outset, achieving the following objectives: |
 
By: Richard G. Halpern Negotiation: As a negotiation specialist, I disdain strategies that have nothing to do with reason, logic and legitimate, good faith negotiation. But recently I encountered a situation where that very professionalism was becoming an obstacle to achieving the desired result. I had fallen prey to the constant bugaboo of all of us who have expertise and success in a given field: the inability to see when an approach that has always served us well won’t work any more. Any of our strengths can be transformed into liabilities under the right circumstances, and it can happen in the blink of an eye. When we have reached an impasse, and nothing seems to be working, it is important to include this possibility as part of our analysis, so we can try a different tack. |
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