My professional life has been dedicated to conflict management. I appreciate the value of both litigation and arbitration in certain cases, but also believe that in appropriate circumstances, mediation is a more efficient, less expensive, and less risky process for the resolution of disputes. A skillful mediator will not only facilitate communication between disputants, but may also explore with them creative and smart solutions that represent a win-win outcome, which is not often possible in either the courtroom or arbitration tribunal.
I am a pro-active mediator. Succinctly put, I do not wait for the “deal” to come to me; I urge parties to prioritize their issues, and I often assist them in formulating and packaging proposals. In that sense, I am more of an evaluative than a facilitative mediator, although effective mediation often requires a combination of styles, depending on the parties and the nature of the dispute. I view my role as one of encouraging parties to constantly rethink their positions, realistically assess the risk of failure, develop shared goals with their adversaries, and put aside personal antagonisms that impede settlement. In addition, I attempt to clarify misunderstandings, explore new areas of discussion, be sensitive to unspoken issues and relationships that may affect negotiations, and manage the pace of the discussions and timing of proposals.
My clients often say that I am tenacious. That is true. Negotiations tend to take time, and the process of settlement needs to be managed – not rushed. “Hanging in” and showing the parties that I am totally committed to help them resolve their impasse frequently dissuades them from giving up and inspires them to renew their settlement efforts. What I ask in return is that the parties enter into mediation with a sincere desire to reach settlement and a willingness to move in some direction to achieve that result. Using mediation solely for discovery, or to pummel one’s adversary instead of seeking genuine understanding and/or compromise, constitutes an abuse of the process and the mediator. I also expect the parties to come prepared to engage in meaningful and intelligent discussion. That task necessarily involves a careful identification of the issues; an assessment of the claims, facts, defenses, and potential damages; some knowledge of relevant law and litigation risks; preparation of supporting arguments; and consideration of alternative positions. The mediator’s effectiveness is directly affected by the level of preparedness that the parties bring to the mediation process.
My personal philosophy also emphasizes the importance of fairness in the process and dignity in the outcome. I encourage parties to appreciate the significance of saving face and the need that everyone has to conclude negotiations with some sense of satisfaction and dignity. I try to manage the mediation so that the mutual perception of the parties is that the process is never demeaning, and the mediator is always trustworthy.
In the end, successful mediation is as much about time and perception as it is about the content of proposals. The mediator’s task is to help disputants appreciate one another’s needs and objectives – i.e., where they are coming from – so that the give-and-take incorporates not just the exchange of substantive demands, but also an understanding of the respective motivations and goals underlying those demands