MEDIATIONARTICLE
024
USE YOUR DATING EXPERIENCE
TO IMPROVE YOUR
MEDIATION
SUCCESS
AUTHOR: Mark Zukowski
EMAIL: [email protected] 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 [email protected].