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Mediation approach
Essentially, a mediation mirrors what formal negotiation ought to be, but it is more likely of success because it is conducted uninterrupted in one time and at one place. The parties assemble with the intent to settle, they identify the issues that divide them, they communicate directly and a mediator keeps them focused until they reach their destination. There is a psychological dynamic that propels reasonable (and some unreasonable) people to do what is necessary to end their dispute. If reasonable people want to settle, then this condensed process works better than 0.4 hours here, 2.3 hours there separated by telephone tag.
I invite a confidential, concise, pre-mediation letter, which allows me to start with some understanding of the case and the people. Like most mediators, I generally begin with a joint session to explain the protocol. Unless the lawyers warn me off of it, I like them or the parties themselves to explain their position across the table directly to the other party. Then we divide into caucuses and I shuttle back and forth.
In the first round, I try to get to know the players, who they are and what's driving them. Some lawyers enter mediation in hopes that I will persuade his/her client to be reasonable. I'm good at that. Some lawyers want me to persuade the other lawyer that he/she (the former) is right and that he/she (the latter) is wrong. I'm not good at that. The lawyers know their cases better than I do. Increasingly, I bring counsel together for each to explain him/herself directly rather than use me as a conduit.
Mediation, at best, is an art, not a science. No one way is right for every case. My approach has evolved over the years. I have learned much from experience. I was trained in the facilitative approach rarely to express an opinion, but drawing on the opinions of the parties in a manner intended to narrow the gap. I have become much more evaluative. I find that parties often want my judgment and counsel.
I have learned to use both approaches and anything else I can think of. Intuition and insight are more important than technique. Risk, uncertainty, cost and delay are the tools of my trade.
Ultimately, parties who settle walk out the door having agreed to something they would not have agreed to when they walked in the door. Compromise is achieved by parties accepting what they don't want, not what they do want. Yet, at the end of the day, even with a disappointing result, the parties often share a positive sense of relief that it's over, that risk is contained and that tomorrow they can move on to other things.
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