Almost all in-house lawyers have dealt with mediation at some point.  If you haven’t to date, you will. Mediation is a process to resolve disputes between parties where a neutral third party helps facilitate the discussions, negotiation, and (hopefully) ultimate settlement of the dispute.  Unlike arbitration, mediation is generally voluntary and non-binding.  Meaning, in addition to picking their mediator, the parties get to decide whether and how they will resolve their dispute.  There are times when mediation is mandated, i.e., the parties must go through the process such as, for example, when their contract requires it as part of a dispute escalation process.  Likewise, there are times when a court will require mediation with the judge (or magistrate judge) acting as mediator (sometimes called a “settlement conference”). Mediation is often your best opportunity to settle a dispute before undergoing the expensive process of all-out litigation and trial.  Unfortunately, many in-house lawyers — or their clients – treat mediation like a poor cousin to arbitration and waste the opportunity.  This is usually because of either indifference or the idea that you can “just show up” and mediate.  Wrong!  There are many things you need to know about mediation in order to have the best chance at a successful outcome.  This edition of “Ten Things” discusses the key points in-house counsel need to know about mediation.

 

Mediation is often your best opportunity to resolve a dispute before you become completely bogged down in the litigation process (and the tremendous cost in time and money that entails).  However, you need to approach mediation like an important part of the litigation process and spend the proper amount of time and effort preparing for it.  As in-house counsel you have a unique role in the mediation, especially in terms of teaching your business representative what to expect and figuring out the range of settlement authority (and figuring out creative ways to resolve your dispute once you’re in the mediation process due to your knowledge of the business and the law).  Finally, while it’s okay to rely on outside counsel for many of the things needed for a successful mediation, don’t concede control of the process.  It’s your dispute and your business.  You will know what’s best in terms of when to settle and when to walk away.  This requires that you understand your “case” almost as well out outside counsel.  Don’t be a potted plant.

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