Friday, April 4, 2008

Mediator as Advocate for a Settlement

I find that the best way for me to be actively neutral in a mediation is to regard my mediator role as someone who has to be a constant and passionate advocate for settlement.

If I can't be actively neutral, I am not working hard enough to promote settlement. If I am not a constant, even at times annoying, advocate for settlement, then I can't be actively neutral.

What do I mean be being actively neutral? Really, this is the core obligation of a mediator. Each party must feel that it's assumptions and positions are being actively challenged by the mediator in a neutral manner. In part, this neutrality is achieved when the party sees the mediator treating the other party in a like manner. But much of a mediator's challenges are done in separate caucus, where the parties can't witness the other party's equal treatment. So, how does a mediator try to have parties tear down their own barriers to settlement, and consider what are uncomfortable options that ultimately prove to be fruitful avenues to a fair settlement? Especially in commercial cases where each party is represented by a staunch advocate that is prepared to press on with litigation? By being a staunch advocate as well, the only one in the room that is an advocate for a purpose and not a party.

Truthfully, I have very few reliable guideposts in mediation. I really will not know what each party's litigation strategy is, even if I ask in caucus. I really will not know what each party's real bottom line is, even if it is loudly announced in open session. Really, all that I have to guide me as mediator is patience and a strong disposition to advocate for settlement, especially when the mediation operates in the shadow of litigation. Of course, often enough, the parties will reasonably assess their interests, objectives and likelihood of prevailing in litigation in a manner which leaves no recourse for settlement, at least until the course of the litigation causes them to reassess. For a passionate advocate of settlement, you win some and you lose some, just like passionate courtroom advocates.

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