The Tale of Two Mediators
Imagine 2 parallel universes where the exact mediation is going on in both places. Same parties, identical fact patterns. In universe A, Dan Direct is the mediator and in universe B, we have Frank Facilitator.
Neither party is moving because everyone feels that the Plaintiff Counsel’s number is absurdly high. IMPASSE!!!
Private caucus ensues between mediator and plaintiff’s counsel. Dan Direct tells the p’s counsel to reduce his demand from x to y dollars and that if he does so, Dan will try his best to get the offer increased.
Contrastingly, Frank Facilitator talks to the counsel about the defense’s strongest arguments (i.e. his weaknesses), and asks if a downward move may therefore be merited.
Given this scenario, which mediation approach is the correct one? Directing a party to a place or using facilitative techniques to have that person get to that place themselves?
Does the correct approach depend upon:
- the counsels’ personalities?
- The mediator’s personality?
- The issues at hand?
- The state of progress by the parties or lack thereof?
- The time of day?
Or… is it all of the above?
Make no mistake about it. Mediation is an Art (and a Science). Direct and Facilitative Mediation techniques are the two most used in the world of ADR. The ability for a mediator to use one or both effectively, given all of the circumstances, is what truly differentiates and defines the great ones.
At SSAM (Settlement Services Arbitration & Mediation), we are dedicated to continuously exploring these topics with our panel of Neutrals so that they can practice the best possible art of mediation. Stay tuned, upcoming blogs will delve much more deeply into these and other topics.
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