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When JSM and when mediation?

On the face of it, joint settlement meetings (JSM) and mediation look quite similar. In fact they are quite different. The mediator adds a new element to the dynamics of negotiation which helps to settle difficult cases. Mediation can cost more and this additional cost needs to be justified.

Here are some pointers on when to think about mediation rather than a JSM.

Key Q and As

Q Are negotiations going well?
If yes, carry on, you will probably settle. You might not need to arrange a JSM

Q Is there a track record of success and mutual respect between the negotiating teams?
If yes, carry on to JSM, you will probably settle.

Q Is this a claim that it has not been settled, or is unlikely to be settled, by routine negotiation methods?
If yes, go to mediation. You will probably settle.

Q Are you saying of the other party: “They just don’t get it!!”?
If yes, go to mediation. As a leading expert on negotiation, Roger Fisher, put it:
"Understanding the other side's thinking is not simply useful to solve the problem. It is the problem. The ability to see the situation as the other side sees it is one of the most important skills a negotiator can possess."
Mediation can help you drill down, understand where they are coming from and frame your negotiation accordingly. This can be difficult to do in the adversarial JSM environment.

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