A clear conscience is usually the sign of a bad memory.
No two disputes are exactly alike. No single model or style of mediation offers the best process in every case. Prudence suggests matching mediators and mediation models to each individual dispute, selecting an approach tailored to your individual needs and concerns. There are two major models or styles from which to choose, the evaluative and the facilitative, which are described below. During our pre-mediation conference call, we can discuss which model or style you prefer. Many lawyers choose a blend of the two models, starting in the facilitative style but moving to a more evaluative approach later in the day, depending on what is happening in the process. We can discuss which model you prefer during the pre-mediation conference call. I am equally comfortable with each model and will adopt the approach you decide makes the most sense for your case.
The Evaluative Model
The evaluative style is most familiar to Michigan lawyers. It features separating the parties and their counsel in different rooms with the mediator “shuttling” back and forth carrying messages, asking questions or conveying offers and counteroffers. After the mediator’s opening statement, typically delivered with everyone together in one room, the parties may not see each other the rest of the day. The evaluative mediator is typically a subject matter expert familiar with similar disputes who can size up each side’s strengths and weaknesses, point out risks, predict the probable outcome and suggest a settlement range.
The evaluative mediator is neutral, of course, in the sense that he has no stake in the outcome, but he does express his opinions about which arguments or evidence are most compelling and which side most likely to win.
When does evaluative model work best?
The Facilitative Model
If you’ve participated in a SCAO approved 40-hour, hands-on mediation training, you’re familiar with this model of mediation. The facilitative model features keeping the parties together in joint session as long as possible. It is party-centered and encourages the litigants themselves to make opening remarks and participate in discussion. The facilitative mediator elicits information and helps the parties and lawyers appreciate their risks by asking open ended questions that raise doubts about the outcome. He typically has opinions but is reluctant to voice them to avoid appearing to lose neutrality. He asks questions – some of them tough – but without revealing what his opinion is or even if he has one. This model emphasizes joint or plenary sessions where we move to caucus whenever a good reason arises and may return to plenary sessions when that purpose has been achieved. For example, when someone is reluctant to share certain information but wants the mediator to know about it, we can do that in private, before returning to a plenary meeting.
This model encourages the parties to become involved and play a role. Parties are encouraged to make short opening statements at the beginning with their personal take on the dispute. Everyone agrees to listen without interruption. The clients share what is on their minds and why they believe the claims or defenses have merit. In my experience, when clients are given an opportunity to get something off their chest, the likelihood of resolution improves. This model puts an extra burden on counsel to prepare their client to deliver opening remarks that are effective and cogent, diplomatic and persuasive rather than provocative or argumentative. Settlement occurs only when both sides are persuaded resolution is in their interest. Tact and personal stories are much more persuasive than name-calling or invective. If you haven’t seen the facilitative model in action, you’re in for a pleasant surprise.
Of course, the lawyers are equally encouraged to make opening remarks. Lawyers often share their litigator’s perspective, highlight legal issues, add case analysis and fill in information the client left out.
The SCAO model serves as a reminder that the mediator has no power to decide the outcome. Your case can only settle when you convince each other – not when you convince the mediator. The mediator role in the facilitative model is to encourage communication, help you appreciate your risks and assist you to find and explore options. Therefore, if you select this model, I encourage you to shape your presentations and those of your clients in a way that fosters the other side’s ability to appreciate your point of view.
If you select this model, clients should be advised that the role of their lawyer is different. Instead of a partisan seeking to win every point in every argument, the lawyers assume the role of joint problem solvers, working with one another to find options on which all can agree.
As a process, litigation seeks “truth and justice” while mediation is a search for solutions. Mediation is a chance to step back from zealous advocacy and try something different. If mediation doesn’t work, of course, the parties are free to return to the courtroom. Nothing is lost. Informing clients in advance that the lawyers will be replacing their “zealous advocacy hats” with “joint problem solver hats” will avoid erroneous client expectations about how their lawyers should act and lead to better understanding .
When does this model work best:
Differences between the two models are clear and distinct. However, in my experience, most mediations are a blend of each. As the mediation progresses, for example, mediators may become more evaluative. Late in the day, the mediator may be very evaluative and encourage resolution within a certain range. The process may start out with everyone together in plenary session, but once opening statements have been made and fresh information shared, the parties may separate and remain apart until the case is settled. Or, everyone stays together as long as progress is being made, but move to caucus if the process becomes more contentious and adversarial.
I have experience with both models. Each is effective in the right case. I look forward to working with you to design a process satisfactory to you and your client. Perhaps we can agree on a blended process at the start. We can begin with a joint session using the facilitative model, see how it goes and move to caucus if you fail to see evidence of progress. Alternatively, we can start in caucus and move to joint session when a good reason to do so surfaces in one of the caucus meetings. There is no one “right way”. Mediation is flexible and designed to accommodate different needs and circumstances. I am confident we can make it work effectively for you.
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