Voluntary Mediation: The Key to Successful Dispute Resolution

by Thomas E. O’Brien, P.J.Cv. (ret.) | tobrien@bathweg.com

You should be aware that voluntary mediation is the most successful form of Alternative Dispute Resolution. To say that the process produces results is a major understatement. I have been involved exclusively in this area of Dispute Resolution for the past 5 ½ years. I enjoy settling cases and revel in a success rate of 95 percent.
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Most often the case settles on mediation day; however, the key to my success is that I, at no time, give up on the process. In the event the case does not settle after the first attempt at mediation, I obtain the attorneys’ cell phone numbers and as I generate settlement ideas during the progression of the case, I communicate them to the attorneys and eventually everyone sees the wisdom of settlement.

In over 18 years on the bench as a Superior Court Judge, I oversaw hundreds of cases.  This experience armed me with the knowledge and experience to quickly and thoroughly evaluate the strengths, weaknesses and settlement values of each case I mediate.  My judicial experience imparted in me the importance of impartiality and cold evaluation of the dispute, which I apply to each mediation. 

Many mediators fail in their attempts to “successfully mediate” because they do not have the tenacity to pursue the process to a satisfactory conclusion. In addition to tenacity, a mediator has to be creative and not afraid to express opinions about the strengths, weaknesses and settlement values of each case. The mediator must also have the capacity to show the parties that he understands their case and more importantly, their circumstances. When a party is confident that the mediator is knowledgeable and sincere, he will determine that it is in his best interests to settle at the mediator’s recommended number. While parties can and do seek unique remedies in court, most of the time the parties seek money damages to compensate them. What that means is that most cases cannot settle without a dollar amount and that is where a knowledgeable mediator comes in. A mediation that does not produce a settlement number is destined to fail.
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Another key to a successful mediation is the understanding that there are two sides to every story. Lawyers are advocates for their clients, so they often become so entrenched in their own position that they cannot appreciate the other party’s view. So an impartial activist mediator is needed to bring the parties together. I often say a “good settlement” is one where both sides are “unhappy” and a “great settlement” is one where both sides are “extremely unhappy”.

Voluntary mediation requires that the parties pay the mediator. The payment, however, will be less onerous than the time, money and uncertainty in continuing litigation. Done correctly, mediation is positive and best of all if someone does not like how the mediation is progressing, he or she may just leave the table without any repercussions or explanation.

​Voluntary mediation is perfect for both plaintiffs and defendants because it gives the parties a chance to avoid excessive risk, time and litigation expense. If you are not currently mediating, I highly recommend it to you and after your first experience you will become a convert.

KEY TAKEAWAYS:

• Voluntary mediation is the most successful form of Alternative Dispute Resolution
• Never give up on the process - most often the case settles on mediation day
• Generate settlement ideas and share them with judge and attorneys 
• A mediator has to be creative and not afraid to express opinions about the strengths, weaknesses and settlement values of each case
• An impartial activist mediator is needed to bring the parties together
• Voluntary mediation is perfect for both plaintiffs and defendants because it gives the parties a chance to avoid excessive risk, time and litigation expense.​

If you would like to discuss any aspect of the mediation process, call Judge O’Brien at (732) 363-0666.

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The Honorable Thomas E. O’Brien, formerly a judge of the Superior Court of New Jersey, Ocean County, rejoined Bathgate, Wegener & Wolf, P.C., on February 1, 2011. Click To Learn More...

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