How Does Mediation Work in a Lawsuit: Choosing the Right Mediator

Choosing mediators: How does mediation work in a lawsuit and what should each side look for, and expect from, a mediation expert

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How does mediation work in a lawsuit? For those new to mediation, we advise you being by getting a list of mediators from a reputable provider agency. You can find these agencies by searching under dispute resolution or by inquiring with your organization’s legal department. You should ask the mediators for names of the chief negotiators for each party in the last three cases that they mediated. (The chief negotiator will typically have been the party’s lawyer although this is not always the case.)

Next, contact these chief negotiators and question them about their experiences with the mediators that you’re considering.

The results of my recent negotiation research on alternative dispute resolution methods finds that the talents of successful mediators can serve as guidelines during this process. According to expert mediators, success comes from focusing on three key areas during the mediation process:


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.

1. Rapport

The mediators agreed that the key skill of successful mediator is the ability to develop rapport – a relationship of understanding, empathy, and trust – with each of the disputing parties. Rapport encourages parties to communicate fully with the mediator – often providing her with the information she needs to find a mutually acceptable settlement. One mediator said that rapport is essential to building the trust needed for parties to share “their interests, priorities, fears, and weaknesses.” This information is often the key to settlement … their telling me what they haven’t told the other party,” the mediator said. (See also, Successful Negotiation Examples: Repairing Relationships and Dispute Resolution Using Negotiation Skills)

2. Creativity

Another key talent of successful mediators is creativity – the ability to generate novel solutions. This ability clearly springs from a focus on interests. Only by understanding each party’s interests can a mediator generate creative solutions that satisfy each party’s interests. “It is vitally important to be able to think of new ways of dealing with issues,” one mediator told me, “inventing options, acknowledging feelings, perceptions, and hurts that might otherwise block meaningful and fair resolution.” (See also, Negotiation Skills – Expanding the Pie: Integrative Bargaining versus Distributive Bargaining)

3. Patience

It is also important that your mediator be patient, giving you and your opponent as much time as you need to fully express emotions and ideas, while at the same time focusing intently on the primary task – dispute resolution.

“I am tenacious,” one mediator said. “I don’t give up. I have sat with parties who have claimed they simply don’t see a way to resolution and said, ‘Well, we’ll just sit for a while and think more on it.’ Most parties are loath to send the mediator packing, so they sit and usually think of something, especially if I occasionally throw out an idea.”


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.

Related Mediation Article: Mediation – Focus on Interests, Not Rights

Adapted from “Choosing a Mediator” by Stephen B. Goldberg in the August January 2006 issue of the Negotiation newsletter.

Originally published November 2013.

One Response to “How Does Mediation Work in a Lawsuit: Choosing the Right Mediator”

  1. Randy Garcia /

    I agree, rapport is critical to the success of obtaining trust during Negotiation. I've applied this technique numerous times during my presentations to get customers to get comfortable with me. Thanks Pon, great post indeed. Reply

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