The synthesized mediation described in the accompanying article mirrors best practices, at least in the context of the commercial disputes on which this author concentrates. These best practices illustrate why mediation adds value to resolving disputes that would otherwise be turned over to a third party for decision, whether to arbitrators or some combination of judges, juries and appellate panels. But for mediation, each of the several disputes synthesized into the description above likely would have gone to final, binding and non-appealable arbitration, or, at the very least, settled much later in the course of litigation, after significant additional transaction and opportunity costs. If we look back over the course of the mediation effort described above, multiple takeaways can be teased out.
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