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  • Writer's picturePhilip Reich

Where Should We Do the Mediation?

With COVID restrictions easing, in-person mediations seem to be picking up. While video mediations helped fill a gap (and they will always enable someone to attend one when travel issues would otherwise prevent it), face-to-face mediations are generally preferred. We are used to them and for a host of reasons they are more likely to be successful (at least that is the perception). So, we're back to the age-old mediation question: Where should we do the mediation?

The go-to, knee-jerk answer given by most mediators and negotiators has long been a neutral location.

The idea is that no one has any perceived advantage if the negotiation occurs in a neutral setting. No one has the upper hand. No one has the “home field” advantage. One isn’t subject to eavesdropping, spying, or other nefarious conduct (heaven forbid). But the reality is that the venue doesn’t seem to be as big a deal as it once was. Who knows why? Perhaps the conference rooms in most law offices have become more neutral? Maybe negotiators have realized that making the other side less comfortable really isn’t in their best interest? The “home field” is really advantageous? More mediators are working independently of large law firms and without the overhead of an extensive array of conference rooms?

Where to conduct the mediation is something that should be thoughtfully considered when scheduling one. Regardless of whether it should, consider the following:

  • Is it going to matter to one of the lawyers or a party?

  • Does everyone involved appreciate the need for both sides (for everyone) to feel comfortable and at ease so they can focus on the negotiations?

  • Does the facility have the necessary accouterments to support a productive and potentially extensive meeting of the number and variety of people and issues involved (privacy, confidentiality, bathrooms, break rooms, refreshments, break out space, outside access, windows, necessary technological support, internet access, etc.)?

The idea is to create a setting where the negotiations are most likely to be successful – where the parties can easily focus on productive negotiations.

As a mediator, I want to ensure that wherever we meet will support, not interfere, with our ability to communicate and negotiate.

I don’t have a problem meeting at one of the lawyer’s offices but want to make sure that everyone appreciates the value of doing what we can to make everyone feel comfortable and welcome.

Trying to leverage a “home field” advantage rarely (if ever) works and frankly simply interferes with what we are trying to accomplish.

As the mediator, I must ensure that the parties’ confidentiality and privacy are maintained. But I also must do what I can to enable the process. There is no need to get off to a bad start because of poor planning. A critical element of pre-mediation planning is to address not just where the mediation is to take place but how. A comfortable and supportive site for all involved is what the process needs. How can I help you?


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