Commercial disputes in the U.S. often reach a settlement before escalating to litigation or arbitration. However, it’s notable that lawyers frequently postpone engaging mediators until the later stages of a dispute. Mediation is often perceived as most beneficial towards the end of the legal process, after substantial time and resources have been invested in discovery and motion practice, and as parties approach a trial that may ultimately be avoided.
In these conventional scenarios, mediators are usually assigned a narrow role: to preside over a single “mediation” session intended to either resolve the case or conclude without settlement. Yet, the potential of mediators extends far beyond simply conducting these events. Mediators are capable of contributing significantly in the preparatory phases leading up to formal mediation meetings. They can conduct confidential investigations into the core issues, engage in informal dialogues with involved parties, their representatives, and expert consultants. Furthermore, mediators can streamline the exchange of essential information, enabling parties to make informed business decisions about settlement, and develop bespoke negotiation strategies designed to overcome potential roadblocks to agreement.
Savvy business leaders are increasingly questioning the delay in dispute resolution, asking why settlements are reached so late in the process. Businesses seek to minimize the disruptions and uncertainties that disputes bring as swiftly as possible. Clients desire active involvement in shaping the settlement process and aim to control costs. The Guided Choice process is specifically designed to address these objectives. The earlier a mediator becomes involved through Guided Choice, the quicker a dispute is likely to be resolved, and importantly, settled on terms that genuinely serve the best interests of all parties involved.
Guided Choice mediation enhances the mediator’s role in three critical areas, in addition to their eventual assistance in settlement negotiations. Firstly, a Guided Choice mediator can act as an information facilitator, ensuring decision-makers have the necessary insights to negotiate effectively. Parties often require specific information to make informed settlement decisions but wish to avoid exhaustive and costly discovery processes.
Secondly, mediators employing Guided Choice methodologies recognize the importance of pinpointing the factors that lead to negotiation deadlocks. These factors are not limited to legal and factual disagreements but also encompass the human and behavioral dynamics that influence decision-making, both at an individual and organizational level. Through informal, confidential discussions with parties and their legal and business advisors, the mediator can effectively identify these critical elements. Lastly, the mediator can propose a tailored settlement process specifically engineered to bypass current and future impasses. The ability to discern when and how to apply Guided Choice strategies is a hallmark of the most effective mediators.
The landscape of dispute resolution is undergoing significant transformation. Within this evolving environment, Guided Choice strategies offer tangible and measurable value to clients and are becoming increasingly influential in the selection of both legal counsel and mediators. The Guided Choice Mediation Interest Group stands as a pro bono, global collective of mediators, advocates, in-house counsel, and academics. Our collective aim is to promote the wider adoption of mediation by demonstrating the clear benefits of early mediator engagement in achieving swifter dispute resolution. Businesses highly value these outcomes. The most successful professionals in law and mediation will be those adept at delivering this value. Guided Choice training programs are actively educating in-house and external counsel on the advantages of engaging a mediator promptly after a dispute arises.
This platform is dedicated to providing cutting-edge insights into the most effective practical settlement strategies, incorporating advancements from human behavioral and social sciences. While the field of settlement is rich with information, much of it lacks rigorous peer review. Our commitment is to filter through this extensive information, offering you reliable and actionable knowledge focused on achieving the earliest possible resolution of disputes through methods like Guided Mediation.
Paul M. Lurie, Director
Guided Choice Mediation Interest Group
