Commercial disputes in the U.S. are typically settled before being litigated or arbitrated. Yet the parties’ lawyers seldom hire mediators at the early stages of a dispute. Mediators are often viewed as being most useful late in the legal process after the parties have spent time and money on discovery and motion practice and are preparing for a trial that will probably not occur.
In these situations, lawyers assign mediators a limited role: to hold a “mediation” event at which the parties will either settle or not settle the case. But in fact, mediators can do much more in preparation for the “mediation” meeting. They can investigate the issues confidentially and hold informal conversations with the parties, their representatives, and their experts; they can facilitate the exchange of just enough information so that the parties can make a business decision about whether to settle; and they can prepare a customized negotiation plan designed to overcome any factors that might lead to stalemate.
Smart businesspeople ask: we eventually settle our legal cases, but why are we settling them so late? Businesspeople want to get rid of the disruption and uncertainty caused by a dispute as soon as possible. Clients want to be involved in determining the settlement process. And they want to avoid expense. The Guided Choice process helps clients achieve these objectives. The earlier the mediator gets involved, the earlier the dispute is likely to settle – and to settle on terms that are in the parties’ best interests.
The Guided Choice mediator can help in three ways, in addition to eventually assisting in the settlement negotiations. First, the mediator can act as a facilitator for the exchange of information to enable the decision-makers to be ready to negotiate. Parties want information necessary for their settlement decision process without pursuing a “leave no stone unturned” discovery process.
Second, mediators using Guided Choice processes understand the importance of identifying the factors that led to stalemate. These factors include legal and factual issues and also the human behavioral characteristics that affect decision-making, individually and within organizations. The mediator can identify these factors based on informal and confidential discussions with the parties and their lawyers and consultants. Finally, the mediator can recommend a customized settlement process that will overcome existing and future impasses. Knowing how and when to use Guided Choice is what distinguishes the best mediators.
The world of dispute resolution is dramatically changing. In it, Guided Choice strategies provide real measurable value to clients and will influence the selection of lawyers and mediators. The Guided Choice Mediation Interest Group is a pro bono world-wide group of mediators, advocates, in-house counsel, and academics. Our goal is to increase the use of mediation by demonstrating that the earlier a mediator is hired, the earlier a dispute will be resolved. Businesses value these results. The most successful mediators and lawyers will know how best to provide that value. Guided Choice training programs are teaching in-house and outside counsel the benefits of hiring a mediator as soon as possible after the dispute arises.
This website provides cutting-edge information about the best practical settlement strategies, including those based on developments in human behavioral and social science.
One problem with the field of settlement is that there is too much information available, most of which isn’t peer-reviewed. We won’t present all of that information here, but instead will sort through it to provide you with useful and reliable information about getting disputes resolved in the earliest possible manner.
Paul M. Lurie, Director
Guided Choice Mediation Interest Group