JSH Reporter Fall 2014 - Page 24

MEDIATIONARTICLE 024 USE YOUR DATING EXPERIENCE TO IMPROVE YOUR MEDIATION SUCCESS AUTHOR: Mark Zukowski EMAIL: mzukowski@jshfirm.com BIO: jshfirm.com/markdzukowski What does success in mediation have to do with dating? PREPARATION. Remember what it was like when you used to go on first dates? How many were a disaster because you weren’t prepared for the date? Ever try to impress a first date by going to a high-end steak house only to find out your date was a vegetarian? Or, how about taking a first date to the trendiest bar only to find out your date didn’t drink? I think you get my point. Had you done a little preparation before your first dates, they may have had a more successful ending. It may sound simple. It may even be obvious, but there is no better way to improve your mediation success than by the amount of preparation you put in to your mediation. How can you better prepare for your next mediation? If you are not familiar with the term, “convening conference” prior to mediation you are missing out on a great opportunity to improve your mediation success. Experienced mediators have learned the hard way that there is a direct correlation between the amount of preparation that goes into a mediation and success in mediation. That is why good mediators have attorneys participate in a convening conference before mediation. If your go-to mediator does not request a convening conference, consider asking him or her to do so before your next mediation. You will be glad you did. Let me explain why. I will bet most of you have experienced failure in mediation because some issue came up during the mediation that the parties and the mediator were not prepared to address. Did the right parties attend the mediation? Did one of the parties fail to disclose important new information until the day of the mediation? Did the parties do enough discovery to be able to properly evaluate the case for settlement? Did the parties pick the right mediator for the case? Did the claimant fail to determine prior to the mediation if liens could be compromised? The list of potential issues that can derail a mediation are endless. However, with the help of a good mediator and a convening conference prior to mediation, the specific issues in your case that can derail a successful mediation can usually be anticipated and resolved before the mediation. Returning to my dating analogy and the earlier example of making the mistake of taking a first date to a high-end steak house only to find out your date was a vegetarian, the date likely would have had a better ending if you had just done a little preparation prior to the date and asked if your date enjoyed certain types of food. I am told there are nice vegetarian restaurants and I suspect they are probably cheaper than a high-end steak house, resulting in a win-win for both you and your date, and likely a better evening. If you have never participated in a convening conference before, try it the next time you schedule a mediation. The more familiar you become with this process the more likely your mediation success rate will improve. ABOUT THE AUTHOR: MARK ZUKOWSKI Mark has more than 30 years of experience working in alternative dispute resolution and currently serves as a commercial and construction arbitrator and mediator for the American Arbitration Association. He has also served as a Judge Pro Tem for both the Maricopa County Superior Court and the Arizona Court of Appeals. He is a member of the prestigious National Academy of Distinguished Neutrals. Contact Mark at 602.263.1759 or mzukowski@jshfirm.com.