Before it Hits the Fan : Using Neutrals When Negotiating Agreements

Negotiations, whether involving the initiation of relationships, modifying the terms of existing relationships, or settling disputes, are about unlocking opportunities. Mediators are professionals trained in the science and art of assisting parties in understanding each other’s point of view, interests and exploring creative solutions to a problem. Yet, lawyers usually look for mediators only in the context of dispute resolution after a lawsuit has been threatened or a complaint has been filed. This is partly because very few law school curricula discuss the role of neutrals. Those that do present these practitioners as consultants whose roles are to put out fires and rarely as professionals whose expertise early on during the initiation of the relationship may help eliminate the likelihood of disputes down the road. This article advocates a new way of thinking about mediation and neutrals. First, we present the results of a small empirical survey on negotiation trends, which we conducted in early June 2012. Then we discuss the benefits that a mediator can bring to the table during the negotiation. We intersperse our discussion with case studies that highlight best practices. Finally, we raise some of the implications of non-dispute mediation roles for practitioners — in particular, immunity, privileges and confidentiality issues