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Checklist for Mediation


"When you're at the edge of a cliff, sometimes progress is a step backwards."

Anonymous


This checklist can be used as a tool in advising a client about the option of mediation as a possible dispute resolution mechanism in their dispute.

Score two points for each "yes" and one point for each "no" answer.


• Is the dispute over more than just money?

[ ] Yes [ ] No

• Is the dispute primarily over the allocation of resources between the parties?

[ ] Yes [ ] No

• Is there potential for an integrative solution to the dispute such as some trade-offs?

[ ] Yes [ ] No

• Does your client require a remedy that is non-monetary or one a court cannot order?

[ ] Yes [ ] No

• Did the conflict arise from a communication breakdown, an error in judgment or poor performance?

[ ] Yes [ ] No

• Is a speedy resolution of the dispute important to your client?

[ ] Yes [ ] No

• Are there external pressures on your client to settle quickly?

[ ] Yes [ ] No

• Are there other external pressures on the other side to settle quickly?

[ ] Yes [ ] No

• Are there tactical advantages in proceeding quickly to settlement discussions?

[ ] Yes [ ] No

• Does you client need or want to maintain a relationship with the other side?

[ ] Yes [ ] No

• Would your client perform well in mediation?

[ ] Yes [ ] No

• Does your client have a weak BATNA (Best Alternative to a Negotiated Settlement) (link)?

[ ] Yes [ ] No

• Are there objective criteria that might be adopted in mediation more relevant or beneficial to your client than then legal principles in the case?

[ ] Yes [ ] No

• Can you to deal with contested facts at this stage of the dispute?

[ ] Yes [ ] No

• Is it important to your client that the matter be resolved confidentially?

[ ] Yes [ ] No

• Is a public precedent unimportant to your client?

[ ] Yes [ ] No

• Are the parties relatively equal in terms of resources including the ability to stay the distance to trial?

[ ] Yes [ ] No

• Will the other side bargain in "good faith"?

[ ] Yes [ ] No


YOUR SCORE =

The higher the score out of 36, the more likely that mediation should be considered the appropriate dispute resolution process to use in the case.


Adapted from Julie MacFarlane (ed)., Dispute Resolution Readings and Case Studies Toronto, Emond Montgomery Publications Limited, 1999. Pp 352 -354.

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