Call for a free initial phone consultation: 844.576.2783
Mediations typically conclude on a positive note.
A snapshot of a "joint session."
Have a dispute? Don't litigate. Mediate!
Mediation could help in this situation.
Mediators "caucusing" with one of the disputants.
Signing the Mediation Agreement.
In short, mediation is an alternative dispute resolution method in which a neutral third party (the mediator) facilitates negotiation between the parties to help them design their own resolution to their dispute. Mediation allows the parties to, among other things, explore their needs and interests, their resolution options, and even test their respective perspectives on various issues. Mediation is commonly used to resolve commercial disputes, family disputes, neighbor disputes, as well as community-wide disputes.
Note that mediation is not the same as arbitration, in which a third party (the arbitrator) determines the outcome of a dispute. Rather, in mediation the parties determine the outcome for themselves, which typically leads to happier results than does litigation or arbitration, with the added benefit of substantial time and cost savings.
Types of Mediation
Although other types of mediation exist, this firm employs a combination of “facilitative mediation” and “evaluative mediation.” As the name suggests, facilitative mediation is a method of helping parties to identify and communicate their respective underlying needs and interests so that they can ultimately reach a mutually agreeable resolution. To help them do so, the mediator asks open-ended questions, seeks to understand and validate each of the parties’ points of view, digs beneath their respective positions to bring to light their underlying interests, the drivers of those positions. Throughout this process, the mediator also helps the parties identify common areas of interest and any points of disagreement. However, by thinking “outside the box” and approaching problems from a new perspective, the mediator assists the parties in exploring and analyzing various options for a resolution in such a way that the parties typically move away from a win-lose approach to problem-solving to an approach that emphasizes ways that allow the parties to meet their needs and interests.
The facilitative mediator does not make recommendations to the parties with respect to choosing particular options, give his or her own advice, or predict what a court or jury might do in their case. Here, the mediator’s goal is to keep the parties talking to each other, to get beyond hostilities and set positions and into a constructive, creative problem-solving frame of mind. Ultimately, the parties determine whether to settle and the terms of settlement. To be truly effective, this process requires all parties to mediate in good faith and with the sincere desire to resolve their dispute.
In evaluative mediation, on the other hand, the mediator assists the parties in reaching resolution by, among other things, pointing out the weaknesses of their case and predicting what a judge or jury would likely do if presented with the case. An evaluative mediator might make formal or informal recommendations to the parties based on the strength of their legal case. This style of mediation helps the parties and their attorneys evaluate their legal positions, along with the costs and benefits of pursuing resolution through the courts. Because the evaluative mediator often recommends certain options to the parties, the mediator may influence the outcome of the mediation. Nevertheless, the parties themselves decide whether to enter into an agreement and the terms thereof. In order to make reasonable and realistic evaluations and recommendations, the mediator should have subject-matter expertise in the matter being mediated.
In using a combination of facilitative and evaluative methods, a mediator not only encourages open dialogue between the parties to assist them in identifying and articulating their interests and needs, but also gives his or her own evaluation and recommendation as to the respective positions of -- and best options for -- each of the disputants.