I strongly believe that the parties to litigation are the owners of their disputes. Although guided by wise counsel, ultimately the parties must make the final and tough decision of what to do with their dispute. More than 98% of all cases resolve before trial, often on the courthouse steps, when the risk of a third-party judge or jury deciding the outcome of the dispute becomes uncomfortably real. The litigation process does not provide an opportunity where counsel, clients, carriers and anyone else with a direct interest in the outcome of a dispute, can gather in a "behind the screen," confidential setting to discuss not just the rights and obligations of the litigants, but also the interests and needs of the parties. The mediator guides, but does not own, this conversation – holding to the oath taken by doctors in a different setting of ‘doing no harm.’ I like to say to counsel and their clients in a mediation setting that in all likelihood the conversation “we will engage in will help them focus on what they need to put this claim to bed and help them engage in creative ways of fulfilling that need.” I believe that a dispute is a problem to be solved, not a battle to be won. If a dispute does not settle in mediation, the parties will know clearly what the stumbling block is and, with the help of the mediator, will know how to clear it, if they so desire. Although I am a mediator, there are all kinds of reasons, not just monetary, why a case needs to be tried. I do not believe in bludgeoning the parties into settlement.

 

Am I evaluative, facilitative or transformative? Do I use joint caucusing or private caucusing? Do I reach out to counsel and the parties before the mediation? Do I require pre-mediation briefing? To all of those questions the answer is "it depends." It depends on the type and complexity of the dispute. It depends on the needs and preferences of the parties. It depends on the personalities of the participants, and the relationships between parties and parties, parties and counsel, counsel and counsel, and counsel and adjusters. One size does not fit all, and unlike litigation, a hallmark of mediation is not just its confidentiality, but its flexibility. As a mediator, I try to be responsive to the changing needs of the parties in the mediation. A mediation that starts out facilitative may turn to the evaluative at a late hour in the day. However, the evaluation, unless specifically requested, is usually in the form of a "what if" or a mediator's suggestion or a mediator's range, with continuing options that flow from those. The mediator is the devil's advocate, the asker of hard questions, the agent of reality, the thoughtful shaper of negotiations. The mediator, by her questions, tries to shape and sharpen the reality of each party.

 

Our legal system, the best in the world, allows everyone their day in court. But I have yet to meet a party who after the emotional, financial and time cost of trial, combined with its uncertainty and limited-remedy outcome, is eager to go that route again.