Mediation is a dispute resolution process that offers an attractive alternative to adversarial litigation in many situations. As an alternative to litigation, mediation is highly regarded by lawyers because it works. Cases can be resolved through mediation efficiently, even when the parties seem stuck in widely different positions.

Mediation Procedure

Mediation places each party in control of the outcome. It can be scheduled quickly and at the convenience of the participants; it is completed within a day in almost every case. When effectively conducted, it will allow each party to state its position(s) directly to the other side, in a respectful but serious setting. All comments are protected by legally mandated confidentiality. Nothing said at the mediation can be later used for any purpose in the parties' dispute, so the participants can express themselves freely and take risks in exploring possible settlement terms.

A critical component to any successful mediation is the presence and participation for each party of a representative who has full authority to agree to terms of settlement. In some cases, of course, the parties themselves will fill this role.

After an opening joint session, the Mediator meets with each side, in a confidential caucus, to explore more privately the scope of their interest in resolving the case. While maintaining the confidences of each party, the Mediator (as a truly neutral and disinterested person) can gauge the likelihood of ultimate settlement, even though parties may be slow to expose their positions to the other. The Mediator engages each party in direct and candid review of the benefits and risks to be evaluated in considering settlement terms.

Mediations are scheduled in a comfortable "neutral ground" conference room, with separate facilities for private caucus. Amenities are provided: beverage service and a light lunch are typical. Most mediation sessions require three to six hours to reach either complete settlement or a clear sense that further time will be unproductive.

My Mediation Style

In my experience, effective mediation requires a mediator with certain basic traits: patience, empathy for each party, optimism, intelligence, and flexibility. I approach every case with this in mind. I also rely on my experience in a broad range of legal matters, a well-informed understanding of the litigation "alternative" which likely will follow for each party if the case isn't settled, and experience in dealing with more than 200 parties in mediations to help the participants toward a mutually agreeable outcome .

If mediators are to be described as "evaluative" or "facilitative," I tend toward the "facilitative" side. That is, I resist any rush to assign a settlement or dollar value to the positions of either side. I will provide (in confidential caucus session) the strengths and weaknesses I see in a party's own evaluation of the likely outcome of the case if it does not settle. That sort of assessment comes, if at all, in response to a particular request from that party, and after we have thoroughly explored all the factors that should bear on the evaluation. If a party's position is strongly held, a good mediator will explore the reasons for that conviction and will not apply undue pressure simply for the sake of achieving settlement. However, if a party's position isn't anchored on a firm foundation, that position needs to be reconsidered. At the end of the day, a settlement depends on the party's willing consent and belief that its interests are best served by that settlement.

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