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A Mediator's Toolkit For Breaking Through A Gridlock

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A Mediator's Toolkit For Breaking Through A Gridlock

Author : James Purcell

Submitted : 2014-01-03 20:44:03    Word Count : 584    Popularity:   Not Rated

Tags:   Divorce Mediaton, Massachusetts Mediation, Massachusetts Facilitation, Massachusetts Arbitration, MA Healthcare Disputes, Massachusetts Mediator, Massachusetts Facilitator, Massachusetts Arbitrator, Massachusetts Law Firm, Massachusetts Divorce ADR

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Because mediations usually end in a settlement, it is a better forum for disputing parties to discuss negotiations privately with expert assistance from a neutral. Preparation on behalf of the mediator can go a long way towards the success of settlement negotiations if both parties are ready to talk about settlement options. In fact, a well-prepared mediator is sometimes the best "antidote" against a common mediation roadblock, a gridlock or an impasse.

Individuals and parties who have previously been in negotiations agree that there can be significant negative consequences if a case does not settle. Although every case is different, one study found that out of more than 9,000 settlement decisions, 61% of the time, plaintiffs recovered less money than was offered in the pretrial negotiation. For defendants, 24% of the time, they ended up paying more. In all of the cases, the final offer isn't even the main cause of the gridlock. Putting an issue or dispute to rest is usually the main motivation for the mediation and the settlement talks. Continued conversations that don't end in a solution, as well as the negative aspects of litigation, makes people willing to compromise.

Another compelling statistic is the 97% of the cases, which usually end in settlement. This should be enough to compel parties to settle, especially considering that the alternative could be incurring thousands of dollars in costs and attorneys' fees simply to settle on the eve of trial for what might have been attained at the onset of litigation. Because of this, the success of the negotiations depends highly on the mediator's preparation and skills.

Guiding parties towards the right direction should be the mediator's top priority. This is usually successfully accomplished if the mediator knows how to ask the right questions and how to assign tasks to each party. To help the parties re-examine their perceptions as well as to make them consider alternative solutions, mediators should employ logic and relevant facts. They see the case differently and are not emotionally invested so they should use this to their advantage. The mediator can serve as a reality check when parties believe that their witnesses or evidence are stronger than they really are; it really depends on how evaluative the mediator is willing to be. Parties are more inclined to rethink their position and consider a compromise before too much damage is done if they have a clear idea on the case's true nature and status.

Helping parties consider future opportunities should be the mediator's focus, rather than making them dwell on the past and in the dispute. The mediator should help a party think about the other's possible response as well as help them in defining what makes a good settlement offer. Other techniques in moving a gridlocked case forward are reviewing objective information for the purposes of comparison and exploring the impact of possible worst-case scenarios. Experienced mediators sometimes look at jury verdicts and settlement amounts for cases that are similar to the one at hand, and then present them to both parties. Realizing the results of these related litigated cases often motivates parties to break the impasse and work on a new possible solution. All of these depend on the mediator's skill and preparation as well as in his ability to think outside the box and help parties find a common ground.

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Through facilitation and mediation, Jim Purcell helps health insurance companies, hospitals, and other participants in our healthcare system resolve disputes at the beginning of litigation, or even better, before litigation. To resolve your dispute, call Jim at 401-258-1262 or go to http://www.jamesepurcell.com for more information.

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