The Closer

A Mediation Newsletter September 2014

Arm Twisting or Problem Solving
by James Rainwater

Attorneys frequently ask me which mediation style I use. And that is a somewhat difficult question to answer. Naturally, each mediation requires a separate approach, based upon a myriad of factors. And of course, no two mediation conferences are alike. When dealing with the most complex machine in the universe (the human being), a mediator's toughest job may not be working with the issues in dispute but with the parties themselves.

Searching the Internet or perusing a few text books can yield numerous styles of mediation: Facilitative, Evaluative, Transformative, Narrative, Concord. Without delving into great detail on these varieties, the two most commonly employed styles in American jurisprudence are Facilitative and Evaluative. Facilitative finds the mediator attempting to bring the parties closer together by use of questions and answers – a dialogue intermediary of sorts. An Evaluative mediator listens and offers analysis, often postulating on the potential likely outcomes in court.

I prefer my own style, which I call Interactive mediation. My approach is, perhaps, a hybrid of Facilitative and Evaluative. Yet, my chief concern is a workable settlement. By focusing on a mutual agreement, I become the problem solver. And as such, I am not restricted to what the parties have contemplated or to what a court may or may not do at some future undefined trial.

Occasionally, clients can become so down-trodden that by the third or fourth hour of mediation they are willing to sign anything placed before them. Or the converse may occur: The more pressure exerted on some clients, the more adamant they become about not agreeing to settle. In the first instance, the mediated settlement is likely to fail in its ultimate execution in the real world. The second example will likely doom the conference to an eventual impasse.

It is human nature to resist unwanted advice or guard against a perceived attack. Likewise, the overuse of threats will have a counter-productive effect or cause a result we did not expect or wish to happen. In the legal arena, mediation is a tool to reduce costs, keep litigants from going to court, and ease busy court dockets. To that end, the mediator has a large array of implements to utilize for achieving a lasting settlement. Proposing a realistic solution will trump twisting an arm in the long run when interacting with the universe's most complex machine.

Rainwater Law