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In Place of Strife

The Mediation Chambers

Thoughts on a follow-up mediation

With the best will – and through no fault – of all concerned, the resolution of a commercial dispute may take two bites of the mediation apple.   What considerations should the parties prioritise in preparing for a second mediation, involving a different mediator?

Avoid the blame game. 

Agreement to a second mediation carries an inference that the parties collectively wish to move forward.  Dialogue around ‘he said/she said/they said’ is likely to burn, and not build, bridges.

Keep things real. 

Avoiding the blame game doesn’t mean ignoring that the parties encountered some road blocks during the first mediation.  To enhance the chances of the second mediation succeeding, have an open and realistic assessment in advance with your client.  What prevented the matter from settling?  What fresh, positive ideas can be brought to the second mediation?  Try to keep the focus on issues, not people or personalities.

What information would it be constructive for the parties to share with the second mediator?

The position papers and agreed bundle will not necessarily reveal the full picture.  Might it be useful for the second mediator to know what road blocks were encountered during the first mediation, whether any offers and counter offers were made, and what they were?   If the parties do wish to share information of this nature with the second mediator, consideration may be necessary – depending on the terms of the ‘first’ agreement to mediate – to obtaining the agreement of the parties (and, possibly, the first mediator) to waive the confidentiality provision for the specific purpose of briefing the second mediator.

Mediator: Denise O'Connor

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