There are different mediation approaches that mediators employ, including facilitative, evaluative and transformative. I do not adhere to one approach or style. This is especially important because I handle a wide scope of mediated disputes. To see a description of representative matters that I have settled click here.
Rather, I believe that a mediator should be able to employ the best approach for a given situation. If the parties desire a more evaluative approach, then I am comfortable offering a neutral point of view. This is done privately with each party in a separate caucus meeting. My comments are intended to give the party just another point of view to consider, so that they can make the best decision on their settlement options. I never tell a party what they should do or that they will win or lose the case. Only a Court has that ultimate power. We talk about the benefits of settlement as opposed to the risks of trial.
Initial Private Meeting
I always like to meet with each party, and their lawyers in a private meeting as soon as they arrive at the mediation. This meeting is usually 15 to 20 minutes. The reason to meet is to establish a level of comfort and rapport with the parties. It is normal for the parties to feel nervous or anxious about what is about to unfold. I also ask the lawyers and parties to think about and answer these questions: How can we make the mediation productive and a good use of everyone’s time? What are some of the obstacles to settlement? Is there anything I need to know at the outset of the mediation that is not in a party’s mediation brief? The initial meeting will shape how the mediation will proceed. I do not have a “cookie-cutter” approach to mediation, but I seek to tailor the process to give us the best odds at reaching a mediated settlement.
Often, the parties are reluctant to meet with the other litigants and counsel in a joint, plenary session. Sometimes the reasons are that there are strained relations, or the parties state that they have already heard what the other side has to say about what happened or what their legal position happens to be. While I never push any party to meet with the other side in a joint session, most of the time, I do recommend that we meet together as a group. Before that happens, I often ask each side privately to think about the answer to this questions: “What can we discuss in a joint session with the other side that will move us closer to settlement, and not further away?”
In other words, I believe joint sessions can be counter-productive because they are not properly structured. I do not believe in throwing the parties together and seeing what happens. Rather, some discussion needs to be had in advance to talk about the strategic use and purpose of the joint session.
Generally, I usually bring all the parties together to say hello and meet each other. Then, I ask the parties to be seated and I like to tell them what they “need to know” about the mediation process – often referred to as the Mediator’s Opening Statement.
In some instances, it is helpful for the lawyers to deliver formal opening statements about their client’s case so that the other parties can better understand the legal positions that are being advanced. Sometimes, the parties have not heard directly from the opposing party what legal challenges they may face at trial. There are times when formal opening statements are not that productive, particularly if there is a strong adversarial tone that may result in the other side “tuning out” or getting their “back up”. I always counsel, its not what you say, but how you say it!
In my experience, the most effective joint sessions are when the parties themselves have an opportunity to speak to the other side about the issues that are most important to them. There is usually an underlying interest or need that remains a problem for them.
Some voice a concern that joint sessions can inflame emotions. This is a valid concern. However, research shows that joint sessions, even where emotions run high, actually de-escalate conflict. I normally speak to the parties about the need for speaking respectfully and not engaging in personal attacks, especially if I sense this could derail the process.