101 on Mediation for Non-U.S. Clients

A client from another country may never have participated in, or even heard of, mediation as an alternative dispute mechanism.  Many will be familiar with arbitration and may believe that mediation is similar to arbitration.  Besides informing the client about what mediation is and how mediations are generally conducted, it is important to also explain the benefits of mediation.  If there is pending litigation in the U.S., the client has already been briefed on the U.S. legal system, including some detail about the discovery phase, which does not exist in most non-U.S. jurisdictions.

HOW IS MEDIATION DIFFERENT FROM ARBITRATION?

The client should understand that mediation does not result in a decision of the matter on the merits and the mediator is not the “Judge.”  The client should not be expecting that the full case will be presented during the mediation.  Most importantly, each party should be agreeing to the mediation with a true desire to resolve the dispute.

WHAT ARE THE BENEFITS OF MEDIATION?

Mediation is a lot less costly than arbitration or litigation.  If a settlement is reached at the mediation, or even afterwards with the help of the mediator, the case is over.  There is no waiting for an arbiter or judge or jury to issue a decision.  There also is true finality because there is no basis for appeal. There is no decision to appeal because only the parties determine the outcome of a mediation; the parties agree on a settlement or they don’t agree on a settlement. That is all.

WHAT WILL HAPPEN IN MEDIATION?

It is also important to explain to non-U.S. clients the various forms that mediations might take.  For example, the mediation may be remote or in person.   The parties may start together in the same room and counsel may even make some remarks.  There will have to be someone with full authority to settle the matter appearing for all parties.   The client should be told about “shuttle diplomacy” as the mediator goes back and forth between the parties.  Also, clients should not worry if the mediator takes a short or long time with a party.  Definitely stress that whatever is communicated to the mediator is typically to be considered confidential unless the client gives permission to the mediator to use certain information in speaking with the other party.  Remember that this is likely to be a client’s first experience with mediation.  Informing the client about the process beforehand to avoid surprises will definitely increase the likelihood of success.

CONSIDERATIONS FOR NON-U.S. CLIENT

Lastly, be sure to have an interpreter at the mediation if the client is not fluent in English.  Misunderstandings about what is being proposed or agreed upon can be serious.   Cultural differences should be taken into account as well, not only as to the client, but as to the other parties as well.