Like people of all other professions, mediators each have their own way of doing things. Some, known as facilitative mediators, prefer to help parties reach a mutual resolution to their cases by listening, probing, and making suggestions. Others, called evaluative mediators, assist parties in reaching a resolution by pointing out the weaknesses of each side’s case – acting as a de facto judge and jury by predicting how they might rule.
I prefer to act as a facilitative mediator for two reasons:
- Attorneys know more about their cases than I do. They’ve been involved with them for months, if not years, and have developed an extensive knowledge of the issues. This knowledge deserves to be considered and each party should have the opportunity to state their case to an objective third party.
- Because of the very nature of their approach, evaluative mediators often appear, to at least one of the parties involved, to be taking sides – making the mediation process much more difficult.
However, I will, on occasion, act as an evaluative mediator under the following circumstances:
- I feel comfortable with my understanding of the facts of the case.
- Both sides request me to evaluate the case. I usually ask both parties to put down a range of outcomes in writing and then ask their permission to share those with the other attorneys.
- I feel that the opposing sides are open-minded and that my evaluation will make a difference.
But there is more to a mediator’s “personality” than just being facilitative or evaluative. Being a mediator is quite different from being an arbitrator, a referee, or a judge. Unlike these other roles, mediators don’t make decisions; they make suggestions. Because of this, a mediator should be more reserved in their words, actions, and decisions.
However, there are times when a more aggressive approach is appropriate. Sometimes an attorney wants me to assist in convincing their client of the likely outcome of a trial – to give the client a “reality check.” Here, if I feel comfortable with the facts and if I think that it will help resolve the case, I will be more aggressive.
But no matter the style, mediation is an ideal way to settle your case quickly, inexpensively, and with less stress while obtaining a fair result – one in which both sides feel “unhappily satisfied.”
There are other methods of mediation, specifically med-arb and arb-med, that can achieve the same results. I would be glad to discuss these and any other questions or concerns you may have.
Thank you for considering me as your neutral. I look forward to working with you in the future.