The Importance of Communication in Mediations

One of the main reasons that mediations fail is the lack of open communication between the parties. It is essential for both parties that voluntarily enter into the effort at resolution through mediation to have the opportunity to be heard on their concerns and needs which led them to litigation. It is equally important for the disputing parties to hear the other side of those interests. It is through that open dialogue that the parties can, possibly for the first time, recognize the issues that divide them which may create the opportunity for the parties to focus on ways to solve those issues.

Mediation is crafted to allow for open communication. That is why mediations are confidential, so as to allow the parties and their counsel an opportunity to honestly present the facts and claims to the other side so that both parties can consider each sides strengths and weaknesses. Mediation also is often the first time since the dispute arose for the parties to meet, which often presents the opportunity for direct discussion towards resolution without fear of either side using statements that are made against the other.

The communication, whether through the mediator, through counsel or through the parties directly must be in done in good faith, and must be non-judgmental to be successful. It is in those situations where one side or the other is unwilling to listen to the other where mediation cannot be successful. Communication is also not always verbal. The parties must be willing to convey their non-verbal messages in a respectful and non-judgmental way as well.

Communication is also essential when it comes to conveying proposals for settlement. Certainly there are elements of negotiation which cannot be ignored as part of the settlement process. But for a mediation to truly be successful the communication that is made, both in settlement offers and in advocacy of their positions, must be presented seriously with a goal of crafting solutions to resolve the dispute. As many mediators and lawyers know, money is not always the only element of a mediated solution. As such, both sides must listen carefully and be prepared to consider creative remedies to reach positive solutions.

Finally, it is essential that the mediator that is selected provide the trust needed to create the environment for this communication. In that much of the communication happens between the mediator and the parties separately, it is crucial that the parties feel that their messages and offers are properly being communicated by the mediator to the other side. As is sometimes the case, the success of a mediation depends not only on the words that are spoken, but oftentimes on the way they are presented by the mediator. And as is always the case, listening is a crucial part of the communication process as well.

For almost thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business. experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation.