Apr 6, 2023
Wimpy Mediators Versus Kick-Butt Mediators
[Originally Published in Orange County Lawyer]
Mediators are often described as “facilitative” or “evaluative”. Facilitative mediators bring the parties together, provide a safe space for them, serve them chocolate chip cookies in the afternoon, and try to help the parties reach a mutually satisfactory resolution of their dispute. Kumbaya. Evaluative mediators tell you their opinions on probably outcomes and the costs and hardships of getting to those outcomes. Telling it like it is, they often recommend settlement terms.
Most mediators are some of both. They provide the cookies and their opinions. In my experience, although they greatly value the cookies, most lawyers prefer the mediator’s opinions. And they want them unequivocal and in favor of their client. Selecting a mediator is like picking a jury. Everybody says they want a “neutral” neutral, just like everyone says that they want a fair and impartial jury. The truth is that, just like with a jury, many, if not most, lawyers want a mediator who is unequivocally on their side.
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