This post is part of our Guided Choice Mediation series, where we explore what it is, why it improves on traditional mediation, and how it works.
Guided Choice Mediation is an evolving process that expands and builds on more common place facilitated settlement conferences. Even a cursory review of Guided Choice principles demonstrates its potential to facilitate early resolution of complex legal disputes where traditional mediation would likely fail.
Guided Choice Mediation has seven core principals:
- An obligation to mediate — in North Carolina an obligation to mediate is a part of every civil case. Notwithstanding our mandatory mediation, early mediation (even pre-litigation mediation) should be a feature of every dispute resolution clause.
- Retention of a mediator as early as possible — early retention of a mediator is likely to lead to earlier resolution. More importantly, in the pre-negotiation stage the mediator determines when and how the parties will negotiate and what information the parties need to exchange before negotiating. The mediator is also empowered to determine who must participate in the negotiation and design the negotiation process.
- Authorization to allow the mediator to conduct a confidential investigation and diagnosis — Unlike traditional mediation, the Guided Choice Mediator is empowered to interview the parties in an attempt to diagnose the reasons they have not been able to resolve their differences. The reasons legal disputes do not resolve are often complex and are not limited to disputed facts and/or disagreements regarding applicable law. In single day mediation where the pressure can sometimes be enormous to get to the negotiation, it is often impossible to get to the underlying issues.
- Pre-mediation information exchange — many times mediation is delayed until the end of discovery or scheduled before the parties have enough information to make informed decisions. On the one hand, too much money has been spent and positioned hardened, on the other the parties are unable to properly analyze alternative risks. In Guided Choice Mediation, the mediator can design a collaborative but limited pre-negotiation discovery process that is less expensive than full discovery but ensures the parties can make informed decisions.
- Anticipation of issues likely to lead to impasse — Guided Choice Mediation recognizes that the mediator is in the best position to determine a process tailored to the specific dispute. Through confidential discussions with the parties, the mediator is in a position to determine the obstacles to a negotiated settlement. For instance, the timing of a mediation can significantly impact the outcome; one party may lack sufficient information to make an informed decision; should experts be involved, etc. There are any number of obstacles that can be overcome with a tailored, flexible approach to mediation. The current civil court model of a single day mediation scheduled either very early (to save costs) or very late to make sure full discovery is complete is not the optimal solution in most cases. Guided Choice allows the neutral the flexibility to find creative processes that will lead to better mediation outcomes.
- Commitment to continued use of the mediator after impasse — Under the principles of Guided Choice the mediator has a number of additional tools to help the parties overcome impasse. For instance, the mediator might have the authority to refer the matter or specific legal or factual issues to a neutral evaluator, expert, or judge. The parties can agree to make a decision on limited issues binding or informative. One size does not fit all and the purpose of Guided Choice is to make the process flexible enough to address specific obstacles to resolution and overcome impasse.
- Customization of dispute resolution process upon impasse — Guided Choice mediation also involves exploring further dispute resolution processes upon impasse. Many cases do not require either full blown litigation or arbitration and by agreement and with the assistance of the mediator, the parties can tailor an arbitration to obtain decisions on the legal or factual issues causing impasse.
Guided Choice Mediation costs more than participation in traditional civil court mediation but because the process begins earlier and its flexibility has the potential to save many times its cost in discovery and trial preparation costs, it should become the new norm.