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The Mediator’s Role: Achieving Mediation Value for Every Participant

April 27, 2017

No mediator can resolve every dispute.  There are innumerable factors, almost all beyond the control of any mediator, that must each successfully align (or be aligned) to have even the possibility of resolution at any given mediation.

If even one participant, or their counsel, comes unprepared for or simply uninterested in resolution of a particular dispute, unless the mediator can literally “cure” such inbred negative traits during the limited time typically reserved for such matters, no resolution will be possible.

Or, if any participant simply desires “their day in court” or to “make a point”, no resolution can be possible.  Reasons for such a position often are totally unrelated to that particular dispute.

And, frankly, where strong differences of valid, informed opinions are simply not reconcilable by compromise, often solely for practical reasons, likely a trial of the issues may be the best ultimate choice, for everyone.  But, see, “Why Mediate When Mediation is a Waste of Time ?”, January 2, 2012

However, even in these “impossible” disputes, in jurisdictions that support mandatory mediation, mediation will almost always be ordered, will very likely fail, and then be followed by the inevitable trial  in which one side will unquestionably lose.

And, some of these losing parties (and even some counsel) will end disappointed in the process of mediation (and trial).

And, a few will “blame” (among others) their mediator!

Accordingly, every mediator should and MUST strive to insure that in every mediation each mediating participant and their counsel receive “value” for their mediation effort and cost in every mediation!  it is critical to the future success of the entire process of mediation; it is even more critical to the future of that mediator!

Mediation participants seek resolution.  If resolution is not obtained, you can bet that mediator will not be asked to try again UNLESS the parties can perceive and understand why that resolution was simply not possible this time (in spite of the mediator) OR resolution progress never made previously or information never learned before was obtained at  this mediation BECAUSE of the mediator.

Parties on both sides come to every mediation biased with only THEIR perception of the facts, the law and their firm belief of their success in a future trial.  One side is wrong.

Often, despite literally years of litigation effort, either there has been no demand for settlement/resolution by the claimant or no offer by any defendant or a huge irreconcilable gulf between the opposing parties settlement positions.

It thus becomes imperative for every mediator who cannot achieve resolution at mediation  to 1) make observable progress toward a more possible later resolution AND  2) educate the participants regarding  the objective actual facts, the actual law and understanding an objectively fair range of likely outcomes of their dispute along with alternatives toward resolution then or later during the process.  See, “Mediation Process:  (Berman) Make Your Mediator Work Harder”,  August 22, 2011

Similar to all counsel’s effort required for success for both sides, achieving mediation value by the mediator for the participants begins with the advance preparation of and by the mediator.

It is critical to the mediator to gain as much information about the parties, their counsel, their dispute, and the law,well in advance of the mediation, as possible.  See, “Your All-Important Pre-Mediation Summary:  Seven Other Valuable Uses!”, March 23, 2015

The disadvantage of a mediator is that no mediator can ever know the details of any dispute as well as the participating counsel who have often spent years in learning and preparing their client’s legal positions.  And, of course, their parties have lived the events so the facts are even more known to them, and worse, ingrained with bias in their minds.

The advantage that the mediator has, however, is that, once the legal and factual differences are revealed, examined, and considered together, without bias,  the truly neutral mediator can avoid the parties’ unavoidable trap of advocacy, bias and emotion and instead, seek to guide the parties to reasonably achievable goals, not simply their desired ones.

There is a reason mediators must be truly neutral; they can thereby best effectively emulate the ultimate trier of the matter in looking for future trial outcomes if  parties voluntary resolution cannot be achieved!

It begins by focusing the parties’ counsel on their own case rapidly approaching mediation.  Rarely does any parties’ counsel have the luxury of only one cause.  Sometimes simply directing counsel to fully and timely reviewing their own potential elements of proof and potential likely outcomes (if tried at mediation), can start the resolution ball rolling.

As mediation begins, learning and then understanding the true (sometimes unspoken) issues between the parties and just what would constitute justice for either or all sides, is critical.  Many disputes get lost in the forest as each tree is being considered!

Thinking “outside the box” is too often not even considered by participants or their counsel in the rigorous context of legal disputes.  Mediators have so much more latitude to seek and even suggest alternatives, including some that are not even within the legal context of a dispute, that can quickly close the most hotly disputed matters.

And, of course, many mediators are chosen because they, previously, were quite experienced in similar disputes and even litigation techniques and can often have much to offer all sides by way of suggestions on how to bridge recalcitrant positions.  Both sides must leave objectively knowing their weaknesses and strengths as seen through the eyes of a neutral.

At the very least, good mediators can assist you find the best way to negotiate to your side’s believed-best position more effectively.  It is what they do!

And, then, a critical next value of your mediator is in helping the parties close the initial gaps in early negotiations.  If your mediator cannot move the parties closer to a better-reasoned middle position, it often becomes impossible to reach resolution.

However, the greatest mediator value may be solely in HOW they move the parties toward each other.  In the end,  all mediation progress must be the idea of the parties.  See, “My Opinion:  Good Mediators Lead Best From the Back of the Room.”, September 30, 2014

The ultimate Mediator’s “mediation value” goal, if resolution is not possible, therefore, is to have the participants and their counsel leave mediation feeling that 1) the opposition now fully understands the strengths of  the factual and legal basis of our claim/defense 2) the mediator assisted with moving the opposing resolution positions much closer than would have been accomplished without him/her 3) both sides learned factual, legal and tactical information they would never have obtained without mediation 4) both sides obtained learned alternatives to allow both to continue preparation for trial, while continuing to consider reasonable alternatives for resolution, and 5) any one of the first four factors alone were worth every dime of the parties costs of preparation for and participation in this mediation.

If, after any “failed” mediation, you can appreciate any one of  these values gained by your mediation and your mediator, that mediation was actually quite successful!

And, by the way, that was your mediator’s job.

Dan, from Orlando/Winter Park, Florida.

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