The beauty of mediation is that it brings decision makers together in the same space and time, to resolve disputes.  The success of the process rests on the fundamental assumption that each party comes to the table with the authority to settle. Unfortunately, in some cases involving insurance companies, key decision makers sometimes are absent, creating challenges for counsel, participants and the mediator. 

Even those negotiators who have not found time to read Roger Fisher and William Ury’s seminal work, Getting to Yes, are probably familiar with one of its core points: turn the focus from positions to underlying interests.  How exactly to do this, particularly where the parties have staked out aggressive conflicting positions in advance, is not quite so easy.

Mediation, like any form of negotiation, involves messaging.  Each change in position communicated to the other side is a message delivered between opposing factions.  Mediation can quickly devolve into a reactive process where messaging and counter-messaging can become the focus, leading to impasse instead of resolution.

There are many strategies that counsel can use to help get a stalled mediation back on track.  Here are a few:

Not long ago, alternative dispute resolution was one of the many stopping points on the path to trial: it was something you checked off the list as you prepared a case for a presentation in a courtroom. Increasingly, though, ADR has become the last step in the life of a lawsuit -- the ending place where litigation is concluded. The waypoint has become the destination.