WHATEVER WORKS
There are no absolutes as to how a mediation should be conducted – the only caveat is that it should be managed ethically, which includes that the principle of confidentially be strictly followed. Otherwise, whatever works is the appropriate mantra.
A facilitative, easy going approach might be called for in one instance, an aggressive, evaluative style in another and a combination of the two methods may be the most effective in a third situation. A joint caucus could be an appropriate mechanism for one case and verboten in another. Considerable discussion about sophisticated legal issues may be a preliminary requirement while the emotional needs of a party may be of greater importance in a different setting. The point is that every case is different even if it appears, on first blush, to be a generic harassment, commercial dispute or trip and fall. Besides the unique facts of every case, all parties and their counsel bring different expectations, personalities and perspectives to the process. What has worked in one instance is not guaranteed to work in another. Flexibility, not rigidity to a system or process, is required.
The mediator, with input from the respective attorneys, shall determine the best way to achieve a settlement. Counsel can be of immeasurable assistance in letting the mediator know about previous negotiations and any impediments to resolution. After that, the mediator should not hew to a set course; instead, he should adapt to the needs and expectations of the parties.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010
Copyright Michael D. Marcus, July 2009