Mediation Process, Methods, and Techniques

Jim frequently is asked about his style and method of mediating a dispute.  Here is a description in his own words:

“I believe it is critical to be thoroughly prepared in advance of the mediation session.  In addition to reading all pleadings, confidential pre-mediation statements, communications, reports, and other materials that counsel may provide me in advance of the mediation session, I usually have detailed discussions with each counsel – and occasionally with the parties themselves (with counsel participating) – so that I can thoroughly understand the positions, interests, limitations, and objectives of each side before the mediation session begins.

“In several situations where the facts and issues have seemed more straightforward to me than the parties initially believed them to be, I have been able to get the dispute resolved by telephone and email, without parties needing to incur the time and expense of an actual mediation session.  Most disputes that come to me, however, do require full mediation.  Then I will work as long and hard as possible to help the parties reach resolution.

“In particularly complex or emotional disputes, the parties may have started moving in encouraging directions during the mediation session but settlement could not be achieved before plane flights or other scheduling demands intervened.  In those circumstances, parties frequently have asked me to remain engaged and continue my efforts to reach resolution.  These efforts have taken the form of follow-up phone conferences or emails in the days or weeks following the initial mediation session, or for particularly large or complex matters (especially when multiple parties are involved), additional in-person sessions might be arranged.  I have been told by more than one counsel that I am “relentless” in such follow-up efforts.  Fortunately, these efforts frequently have led to ultimate resolution, sometimes as long as several months after the initial mediation session.

“I often get asked whether I adhere strictly to either an ‘evaluative’ or ‘facilitative’ style of mediation.  My answer is that I am practical rather than dogmatic: I will utilize whatever style or technique I think is most likely to be effective in a particular situation.  This means that my approach may vary from issue to issue, party to party, and hour to hour during any mediation process.  But let me also be clear about what these terms mean.  For me, ‘facilitative’ does not mean acting merely as a message carrier between caucus rooms; rather, I will provide focused input to help the parties negotiate in the manner I believe will be most effective in achieving their goals.  Similarly, for me, ‘evaluative’ does not mean imposing legal opinions on the parties like a judge, nor does it mean usurping the role of counsel by propounding legal advice to the parties.  Rather, I will make comments and/or ask pointed (or even forceful) questions to help the parties and their counsel reach thoroughly-considered conclusions about the strengths and weaknesses of legal and strategic positions on all sides of the dispute.  The more ‘evaluative’ counsel ask me to be, the more I will rely on the materials and pre-mediation statements they have provided to help me understand their views on key issues.  I welcome the opportunity for vigorous interaction with counsel and parties throughout the process.

“Another question regards the use of caucuses versus joint sessions.  In some locales there is a strong predisposition among counsel and/or mediation organizations to keep parties separate at all times, with the mediator shuttling all day between caucus rooms.  In other locales the predisposition is strongly in favor of joint sessions, where all parties and counsel are kept in the same room all the time.  Once again on this issue, I am practical rather than doctrinaire.  I believe each case is unique and requires thoughtful attention not only to the facts and applicable law, but to the objectives, concerns, personalities, and even the emotional status of the parties (not to mention the viewpoints of counsel).  I have experienced remarkable breakthroughs in joint sessions where I carefully prescribed why I had asked everyone to meet together and what I hoped to achieve in the joint session.  At other times it has been clear to me that a joint session could run a serious risk of undermining the settlement process.   My sense of the risks and benefits of joint sessions versus caucus can change even during the course of the mediation day itself.   

“One important caveat, however, is this: whenever a party requests to have a private caucus with his or her counsel (whether or not I am asked to participate), I will honor that request promptly.

“The bottom line is that I take the mediation process seriously from beginning to end.  I always commit to understanding the background facts, issues, and positions of each party as thoroughly as possible in advance of the mediation session.  This means I  always ‘hit the ground running’ on the day of the mediation session.  I will apply all of my training and insights to try to help the parties find a mutually acceptable resolution of their dispute, and I will not stop until I know all means of achieving success have been exhausted.  I know that if resolution can be achieved, the cost of the mediation process will be modest, or even inconsequential, in comparison to the investment of money, time, and emotion that the parties will face if they proceed to litigation.”