Article by: Durban Lawyer: Fawzia Khan
Renowned mediator, Michael Roberts shares some interesting information on mediation and why he believes it’s an effective way to resolve a dispute. He criticizes some attorneys whom he says are reluctant to put forward a reasonable offer to their opposition fearing it will be viewed as a sign of weakness.
According to Roberts, “attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. The mediator can help parties to clarify their needs as opposed to their wants.
Each party is given the opportunity to directly educate and influence their opponents in the opening presentation. He says “the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected”.
Mediation allows each side to "test market" a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to "give in".
As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible. Lastly but by no means least, mediation works because the mediator can provide “reality testing” to the disputants, so that they can see what options they face should the matter not be settled and proceeds to be decided through litigation or arbitration.
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