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When to use. Mediation is not always the first answer to
the question of how to assess settlement in a pending case. In many cases,
clients may be better served by an assessment of how (or whether) ADR
could apply to a given case, than by proceeding directly to
mediation. This assessment need only take several hours. The term "mediation" has a very broad meaning,
and how parties participate in mediation also varies dramatically.
In many situations, the neutral's role becomes that of negotiation
facilitator.
I often suggest that parties are well served by using a
"Neutral Convening" as a first step. In a Neutral
Convening, I work with the parties (and legal counsel if applicable) in a short conference
that is not intended to explore settlement directly. Rather, I work
with the parties for an hour or two to discuss the various ADR options
that are available, and to make a recommendation to the parties as to
whether ADR may be suitable.
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Why to use. This is a relatively inexpensive option and may avoid the
waste of time where mediation is not suitable. A Neutral Convening
can take only a few hours, and gives the parties and counsel a chance to
look at their ADR options. If the parties decide to go into an ADR
option and as part of the Neutral Convening, I can help the parties draft
an ADR agreement.
Including a conflict
assessment. A neutral convening can let the mediator undertake a brief
conflict assessment. This assessment lets the mediator make suggestions
about the design of processes that may work for the parties. This could
include processes for data exchange and evaluation, assessing legal
issues, use of technical teams, or other processes.
In an initial agreement, a
neutral convening may be part of a multi-step dispute resolution
process. Sample
contract clause.
A neutral convening includes
some of the steps used in a "conflict
assessment."
Additional
thoughts on Neutral Convening in my article in the Colorado Journal
ADR
forms
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