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Commitment Drives Mediation Results
Most lawyers approach mediation by focusing on the same variables they rely on in litigation: the facts, the law, and leverage. Those factors matter, but they do not fully explain why some cases resolve while others stall.
Often, when selecting a mediator, counsel will look for a mediator with the “right approach” or “personality,” as well as availability. A mediator’s per-day fee is another consideration.
But there is another variable that surpasses these choices: commitment.
Commitment appears in preparation, decision-maker involvement, time allocation, and financial investment. It signifies seriousness, and seriousness changes behavior.
Financial commitment is one of the clearest signals.
When parties invest meaningfully in a mediator, they prepare more thoroughly and engage more seriously. Low-cost mediations often invite minimal preparation and positional behavior. They sometimes become “check the box” exercises to complete a mediation before the deadline in the scheduling order.
Time is equally critical.
Mediation unfolds in stages: positioning, information exchange, reality testing, movement, breakthroughs, and eventually, resolution. Full-day mediations allow this process to develop, while shorter sessions often end prematurely.
Structure also matters.
In-person mediations tend to create greater focus and engagement, while remote mediations introduce convenience, but reduce intensity. There is a significant discomfort gap between traveling to a full-day mediation in a conference room and a half-day mediation over Zoom from a home office, with breaks that allow participants to work on other matters.
Mediator selection is another key factor.
Experienced mediators with subject-matter expertise increase confidence and facilitate productive negotiation.
Mediation should be treated as a strategic event.
Commitment does not guarantee resolution, but lack of commitment almost guarantees failure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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