My Mediation Style
If you were to dig into the literature available on the subject of mediation, you would find that some practitioners try to label mediation styles and processes as either “facilitative” or “evaluative.” All mediators, regardless of style, must remain impartial and neutral, but mediators adopt different approaches, methods, and styles to “facilitate” a resolution. While I will resist any definite label being applied to my approach to this process, I have found that a more evaluative process tends to produce better results in the resolution of construction disputes. To be effective with that style, I have found that there are several things I do that differ from those that a mediator handling a personal injury or family matter might do:
- My own review of underlying contracts, reports, deposition testimony and relevant, in addition to the advocates’ position papers, increases my ability to be effective in what I do.
- Ex parte communications between counsel, their clients, and me are encouraged.
- Before the opening session, I like to know the facts, positions, and settlement history of a dispute. Too many opening sessions have further polarized the parties when the mediator did not have the advance opportunity to counsel with the parties about a planned “scorched earth” opening presentation or surprise. More and more, I find it helpful to visit with the parties on large matters in advance of the date set for mediation.
- I favor long days over multiple days of mediation…one half of every day after the first is spent undoing “buyer’s remorse” that set in the night before.
While my style is more evaluative and more into the details of the dispute, I am not coercive or intrusive. I firmly believe that settlements must be made by the parties themselves. I will not attempt to impose, coerce, or force a settlement on the parties. I won’t give up easily either.
