by Christina L. Scott, J.D. Used typically in tort matters, a mediator proposal is a rare settlement suggestion offered to the parties post mediation, in an effort to break impasse. This tool is only used when the mediator believes there is a very high probability of success and the gap between the parties is closer than parties perceive. Like all things in mediation, agreement and consent by both parties is necessary for the mediator to proceed with the proposal. A mediato

By Christina L. Scott, JD If you’ve represented clients in numerous mediations, you know that the reasons for impasse can vary greatly. The interesting thing is that these reasons are sometimes only the “perceived” reasons. I’ve learned in more than 17 years mediating that the true reasons for impasse, particularly in divorce cases are usually due to what I call the “silent instigators”. These silent instigators are in the room with you during the entire mediation and many t

by Christina L. Scott, J.D. Mediation is the best choice for resolving conflict and as a neutral, I love to do just that. Sometimes, however, there are circumstances and factors that are almost certain to create impasse or no agreement. Here they are: Lack of Preparation Preparation is one of the many keys to a successful mediation and the lack thereof can sabotage it as well. Preparation is not just having all the relevant discovery you need, but also preparing your client

By Christina L. Scott, J.D. Many years ago in an advance mediation training class, I remember my instructor saying, “in order for good sound decisions to be made, we need both Emotion and Logic.” After hearing this, I started to pay attention to my own decision-making process and that of others. I soon realized that there is some truth to this statement. What I also learned is that too much of either in mediation can hinder progress and lead parties straight to impasse. Our

By Christina L. Scott, J.D. One thing that we all learned from 2020 is the power of negative words, comments, and phrases. Whether it was from our political, religious, and local leaders or from the mud-slinging advertising and commentary during the 2020 election campaigns, we are all intimately acquainted with the effect that words have on us. Words in mediation is no different. The “words” can make or break a mediation. In order to avoid the “break” in mediation, we must av

By Christina L. Scott, J.D. There are many things that can inadvertently or purposefully sabotage a mediation. Sabotage should never be purposeful in a mediation, however the “reality check” says that at times it might be. Here are the big 3: Engaging in Discovery The purpose of mediation is to engage in discussions to move towards an agreement through the process of negotiation and compromise. Mediation is not Discovery or a fishing expedition. However, some parties and cou

By Christina L. Scott, J.D. For most parties, the goal of participating in mediation is to resolve the conflict. I say “most” parties because there are some cases where parties show up simply to aggravate the other side, play games, stonewall, and many other things. For the most part though, parties want to settle their dispute. One of the things needed to move toward resolution is the right environment. Particularly, in domestic cases, the “right environment” is created by k

Perhaps one of the greatest impediments to resolution in mediation is the timing of when the mediation occurs. A mediation that is set to happen too soon, too late, or at the wrong time, can be a real disaster. If the mediation happens before the end of discovery period or prior to dispositive motions being filed, parties are typically not as motivated to settle. This is usually because parties feel that something might happen in their favor, post mediation. The reality is,