To get the most out of mediation, consider the following:

1. What is your attitude toward settlement? Mediation works best when the parties are open to settlement. If, for whatever reason (and we will discuss some possible reasons below), you really do not want to settle, mediation is unlikely to work well for your dispute. Having said that, we have seen instances where the parties were compelled by a court to mediate and ended up settling as a result.

2. What is the nature of your dispute? Is it a commercial problem, i.e., a matter of money, or do you believe it is a matter of principle? The ideal dispute for mediation is one in which the issue is simply money, rather than principle. That said, mediation can also be of great value in resolving matters of principle. On many occasions, a mediator can assist the parties in evaluating realistically the strength and utility of the principles in issue. In any event, before rejecting mediation, you should ask yourself how much you are willing to spend to defend your principle and how good the principle will be if you litigate or arbitrate and lose.

3. Are you emotionally involved in the dispute? In some disputes, representatives of one or both parties feel that they have been treated unfairly or dishonestly and seek to use litigation or arbitration to obtain not only money but also an element of vindication for themselves or punishment for the other side for its misconduct. At first blush, situations of this type may not strike you as appropriate for mediation, but, in fact, these may be the cases where mediation is particularly useful. First, mediation provides an outlet for the parties to express their grievances and to examine them in a more objective light. Second, fairly or unfairly, litigation or arbitration seldom results in vindication of the right side or punishment for the wrong side (assuming that there is a clear right and wrong). Thus, prosecuting a litigation or arbitration to the end is usually unlikely to yield anything other than money; vindication or emotional satisfaction seldom result. Under the circumstances, the best way to deal with the emotional component is frequently to resolve the matter and walk away. Mediation is ideally suited for this.

4. Are you being realistic about desired results? To get the most out of mediation, you need to go in with a reasonably realistic view of the result you are looking for. A realistic view involves not only the amount you wish to recover, or alternatively, avoid paying, but also the cost in both money and internal disruption to achieve that result.

5. Are you willing to listen to an objective opinion? One of the valuable services that mediators provide is realistic evaluation of the strengths, weaknesses and value of a party’s case. To get the most from such an evaluation, a party needs to have an open mind going in. This is particularly important, because in many disputes, particularly at the beginning, the parties start off with a somewhat inflated view of their respective cases fed both by internal pressures and, on some occasions, advice of counsel.

6. You probably will settle eventually, so why not try to do so early on? The fact is that in insurance and reinsurance disputes, as in all civil litigation and arbitration, the vast majority — more than 95% — of all lawsuits settle before judgment, often on the courtroom (or arbitration room) steps. Mediation can save litigation expenses and wasted executive time by leading the parties to an earlier resolution. There’s not much to lose by trying.