Sometimes when I am called upon to mediate a dispute, what the parties really seem to be looking for is a neutral evaluation of their legal case or negotiating position. While I am happy to do that for the parties, I make sure to explain to them that this is different than mediation. It requires the parties to present to me, in summary form, most of their case. The parties need to consider whether or not they want to share all of that information with the other side, either directly or through me. If they do, it is really like non-binding arbitration. This can help the parties get a more realistic view of their chances of prevailing at trial and, therefore, promotes settlement. However, if the parties or their attorneys are not communicating well, a mediator may still be necessary to facilitate negotiations. On the other hand, if mediation is attempted and reaches an impasse, neutral evaluation may help to break the impasse.
There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.