Okay, we know you can’t make decisions. We know you can’t issue orders. (‘I’m not a judge or an arbitrator, blah, blah, blah.’) We know you can’t take sides, must always remain neutral. And we know you can’t give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will!
“So, what in the hell DO you do?”
Oh, you’ve never said this in so many words, but we’ve read your minds and understand your frustration. In many cases, you’d like the mediator to play judge and settle the matter once and for all, right?
The problem is the law and regulations covering the conduct of mediators and the process of mediation do not allow us to do these things, and it’s well they do not.
Mediation is your process, not the mediator’s. Decisions are yours and your client’s to make, and mediation is the only forum in which you have complete control over decision making by or in behalf of your client. And, as much as you’d like the mediator to side with you, you don’t really want this to happen, ’cause in a given case how would you know which side he or she actually is on, hmm?
And, finally, the rendering of legal advice is the job of the attorney representing the client. Ask for our opinion and we’ll give it to you the best we can. But don’t expect unsolicited advice. In the first place, you might resent it, professional pride being what it is, and, secondly, how would opposing counsel feel about our giving you favorable advice or reminding you of some legal principle you may have overlooked? He’ll think, hmm, smells of bias.
So, what DO we do?
Well, first and foremost, we give you a hard time – or try to. We ask you questions you probably don’t want us to ask or have forgotten to ask yourself or your client, or have forgotten the answers to. We call them “reality checks.”
We’ll ask you and your client what it is you’re really looking for in a settlement. We do this as much for your benefit, to be sure you are clear about your expectations, as for ours in helping you reach that goal.
We’ll bore you with cliches that, while you’ve heard them ad nauseam, are probably quite original to your clients and frequently do serve to refine the objectives in steering parties toward a resolution.
We remind you to look at the big picture and not focus on inconsequential legal or factual issues. They merely distract you from the key issues and your settlement goal.
We tell you and your client (just in case it hasn’t been discussed in recent weeks or months) trials are expensive, stressful, take time and that their outcomes are terribly uncertain.
While subtle and often not appreciated, by separating the parties in breakout or caucus sessions, we are able to control heated emotions that can frustrate a settlement and to keep folks focused on their interests rather than their positions.
And, finally, we try to make the point that an amicable settlement, while not always satisfactory to either side, is the best of all worlds and a win-win for both sides.
Oh, also, occasionally, we’ll share the latest good joke with you.even if it’s not always worth the cost of admission.
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